majority"> Gookins, J.

Harris brought an action against Nutter, to recover a horse alleged to be unlawfully detained. Answer, 1. A denial; 2. Property in the defendant; on which issue was joined. There was a jury trial. Verdict that the horse was the property of the plaintiff; that he was unlawfully detained by the defendant; and that he was of the value of 118 dollars. A motion for a new trial was overruled, and judgment rendered that the plaintiff recover the horse, or, if he could not be had, that he recover of the defendant 118 dollars, as assessed, &c. No question is made upon the form of this judgment. See 2 R. S. p. 122, s. 374.

Harris, to show title to the horse, proved by one Cully, that he sold the horse to Cully, about the 15th of May, 1855, and received in exchange two other horses, agreeing to pay Cully 75 dollars for the difference. At that time a fi. fa. was in the hands of the sheriff against Cully, in favor of Yary an, which was a lien on Cully's property, but of which he testified he had had no knowledge. Cully was in partnership with the defendant, Nutter, and there were, at the same time, executions in the sheriff’s hands against Cully and Nutter, of which he knew, but of which he did not inform Harris; but he testified that these were arranged. On the 29th of May, Cully made an assignment for the benefit of his creditors, to Nutter—whom he preferred — covering his interest in the partnership, and his owii property, real and personal, except his household furniture. The assignment included the horse in controversy, and the demand of 75 dollars against Harris. He delivered the horse to Nutter, at the time, but received him back, and kept him at livery, and still had him in possession, as the agent of Nutter. He testified that the assignment was made in good faith. It was proved that Hmris sold the two horses he got of Cully, to one Keffer. The *90sheriff, having Yaryan's execution in his hands, seized the two horses which Cully had exchanged to Harris, in the hands of Keffer, and sold them; after which, Harris, having made compensation to Keffer, demanded the horse in dispute of Nutter, and brought this action.

Yaryan was called as a witness; but by which party does not appear. He testified that when he delivered his execution to the sheriff, he requested him to be as mild with Cully as possible; but that Cully was about to make an assignment, and he charged him “not to let the property slip.” He did not direct the levy, and was not aware of the exchange.

The plaintiff proved that the two horses were seized in Keffer's hands, by the order of Nutter.

The Court instructed the jury, in substance, that the plaintiff’s right to recover depended on the question whether the transaction between Cully and Harris was in good faith, or fraudulent; that if fraudulent on the part of Cully, the property was not changed; that the assignment to Nutter, though bona fide, if made in payment of a pre-existing debt, did not vest the title to the property in him as against the plaintiff; and that, if the exchange between Cully and Harris was in good faith on the part of Cully, the verdict must be for the defendant. The Court, upon the prayer of the plaintiff, instructed the jury that'the vendor of personal property warrants the title; and if he has no title, it is a fraud in law upon the vendee, and vitiates the transfer. Also, that if they believed a fraud was perpetrated upon Harris by the exchange, it would have the same effect in law, though the party did not design it, as if he had done it intentionally. Also, that fraud is a question of fact, to be determined by the jury, from the evidence; that if the jury believed a fraud had been practised upon Harris in the exchange with Cully, and that the horses got by Harris were afterwards seized and sold on an execution against Cully that was a lien upon them at the time of the exchange, Harris would have the right to maintain this suit for the recovery of the horse he gave in exchange — the de*91fendant holding the horse under an assignment as an indemnity or security on past debts of Gully and Nutter.

These instructions the defendant excepted to, and prayed another, which was refused, that if the jury believed, from the evidence, that the plaintiff “traded” the horse in controversy to Gully, who afterwards — the trade being unrescinded by Harris — sold and assigned the horse to the defendant in good faith, and for a valuable consideration, they must find for the defendant.

We think this verdict cannot be sustained. From the fact that neither party has referred in argument to the statute of frauds, we presume its bearing upon the case cannot have been considered in the Circuit Court. It may have an influence upon the case in more aspects than one. Whether the transfer by Cully to Nutter was followed by such a change of possession as is required by the eighth section of that statute (1 R. S. p. 301), was an important inquiry. Again, the same statute (p. 303, s. 21,) declares that the question of fraudulent intent, in all cases arising under the provisions of that act, shall be deemed a question of fact.

The first question on which Harris’s right of recovery depended was, whether Nutter was a bona-fide purchaser. As to that, the case was governed by the eighth and seventeenth sections of the statute of frauds. If there was not an actual, visible, .and continuous change of possession, the transaction was prima facie fraudulent; but upon that point, and upon all others affecting the title of Nutter, the question of fraudulent intent was for the jury, and there was evidence upon which they might have found either way. It is true they were told, in reference to the exchange between Ha/rris and Cully, that whether it was fraudulent or not was a question for their consideration; and by the charge which the Court gave, the whole case was made to turn upon the bona fides of that transaction. Further, the refusal of the Court to give the instruction prayed by the defendant, that if the transaction between Cully and Nutter was in good faith, they must find for the defendant, shows that Nutter’s title was passed upon by the Court, and not *92by the jury; which defeated the operation of the twenty-first section of the statute. We refer here to those assignments which may or may not be valid, and not to those which the law adjudges to be fraudulent on their face, and consequently void—as in Barney v. Griffin, 2 Comst. 365, and Henderson v. Bliss, at the last term of this Court (1). We are of the opinion that the question should have, been left to the jury. Stewart v. English, 6 Ind. R. 176.

J. F. Gardner and I Ya/ryan, for the appellant (2). N. Trusler and B. F. Claypool, for the appellee (3).

We are also of the opinion, that a pre-existing debt is a sufficient consideration to support an assignment, if otherwise in good faith. Work v. Brayton, 5 Ind. R. 396.

Per Curiam.

The judgment is reversed with costs. Cause remanded, with instructions to the Circuit Court to grant a new trial.

8 Ind. R. 100. That case is erroneously reported as having been appealed from the Common Pleas. It was appealed from the Marion Circuit Court.

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