Randall v. Parker. sale was executed, or that the plaintiff then delivered to him, or had ever delivered to him any receipt or other paper acknowledging the satisfaction of the debt, or explaining the purpose for which the bill of sale was given. The other material facts, as they appeared in evidence on the trial, are that the son, who had no funds whatever of his own, on the 6th of March, 1846, hired for one year the house 262 Broadway, and entered there into possession and kept the same for the purpose, as the lease expresses, of genteel bowling and billiard tables. Some of the furniture, and the greater part of the fixtures, he bought on credit. Previous to the execution of the bill of sale, he had been sued for a debt of more than $200, and the plaintiff knew when he took the bill of sale, that an execution upon the judgment recovered for this debt, was about to be issued against him. The plaintiff, who resided at Newark, came to the city on the day the bill of sale was executed, and after or at the time of its execution, the son delivered to him possession of the goods by handing to him the key of the premises. The father then went behind the bar, handed back the key to the son, and appointed him his agent to carry on the business. On the same day the son took down a sign bearing the name of "Theodore Randall," and put up another containing the name of "Randall" only, and he continued to carry on the business in the same manner he had done before. The only witness present at the sale was a person in the employ of the son as a barkeeper. Another fact, on which the plaintiff's counsel laid much stress in his argument, is proper to be mentioned. On the 12th of May, the son assigned to the father his lease of the premises, but as this assignment was made two days before the sale of the goods, it is certain that it was not designed to operate as a transfer of their possession. The jury found a verdict for the defendant, and we are urged to grant a new trial, upon exceptions taken to the charge of the judge, and to his exclusion of evidence upon the trial. It is apparent from the statement, that the case turns upon the construction to be given to those important provisions in the statute of frauds, which, as all of us must remember, were the Randall v. Parker. subject of a protracted and not very amicable controversy between the former supreme court and the court of errors. A controversy that excited the general surprise and regret of the profession, and for some years kept a branch of the law that bears a more intimate relation than any other to the daily and necessary transactions of life, in a state of distressing uncertainty. The plaintiff's counsel appealed with confidence to the decisions in the court of errors, as sustaining all his exceptions to the charge of the judge, and whatever may be the treatment those decisions have elsewhere received, we have not the slightest disposition to deny or evade their authority. We are deeply convinced, without meaning to dwell upon the topic, that there can be no stable or consistent administration of justice, unless the decisions of the court of ultimate jurisdiction shall be implicitly followed and obeyed by all subordinate tribunals; and hence those decisions, when their grounds are distinctly understood, will always be regarded by us as conclusive evidence of the existing law. We apprehend, however, that the true import of the decisions now in question, has been greatly misunderstood. We have diligently examined, and we may add, studied the decisions of the court of errors in the cases of Smith & Hoe v. Acker, 23 Wend. 653; Cole & Thurman v. White, 26 Wend. 511; and Hanford v. Artcher, 4 Hill 272; and we are satisfied that the doctrine which they establish is in no degree inconsistent with the opinion we shall proceed to deliver. The supreme court had decided, in effect, that the presumption that a sale or mortgage of chattels, of which the possession was unchanged, was made with the intent of defrauding creditors, can only be rebutted by positive evidence, that owing to the situation of the parties, or of the goods, the immediate delivery, and actual change of possession which the statute requires, could not be effected; while the court of errors, in reversing their judgments, has held (and such is now the law), that even where the possession of the goods is intentionally suffered to remain in the debtor, every fact and circumstance, tending to disprove the existence, in fact, of a fraudulent intent, may be given in evidence, and must be submitted to the jury. But the court of Randall v. Parker. errors has not decided that a mere symbolical delivery and constructive change of possession, are sufficient to meet the requisitions of the statute, and exclude the presumption of fraud; nor that the presumption is sufficiently rebutted by proof that the transaction was founded on a good or valuable consideration; nor that the presumption, when not contradicted by proof, may yet be contradicted and overruled by the verdict of a jury; or, to express our meaning in a few words, the court of errors has not decided that the jury, in the exercise of a plenary discretion, may repeal the statute. We proceed briefly to explain our own views as to the construction of the statute, and to show their application to the facts of the present case. The first clause in the fifth section (title 2, of the chapter relative to fraudulent contracts and conveyances), our present statute of frauds, so far as it relates to a sale of goods, is in these words: "Every sale made by a vendor of goods or chattels in his possession or under his control, unless the same be accompanied by an immediate delivery, or be followed by an actual and continued change of possession of the thing sold, shall be presumed to be fraudulent and void, as against creditors or subsequent purchasers in good faith." In this clause, the word "actual" is the most important and significant, and demands a special attention. It is plainly used in opposition to "virtual" or "constructive." An actual change, as distinguished from that which by the mere intendment of the law follows a transfer of the title, is an open, visible public change, manifested by such outward signs, as render it evident that the possession of the owner, as such, has wholly ceased. It was the intention of the legislature, that a debtor who wishes to free himself from the imputation of fraud, when he parts with his title to goods, must also part with their use and enjoyment, so as to exclude the hazard of his deriving a false credit from the continuance of his apparent ownership; and this intention, recommended as it is by the strongest reasons of public policy, we shall endeavor, upon all occasions, faithfully to execute. The construction that we now adopt, was given to the statute by the supreme court in Camp v. Camp, 6 Hill 628, and so far from having been repudiated by the court of errors, it received the full and emphatic Randall v. Parker. approval of the learned senator, who in Smith v. Acker and Hanford v. Artcher, delivered the opinions that probably had the greatest influence upon the judgment of the court. (Opinion of Hopkins, Senator, 4 Hill 271.) Applying then the test of this construction to the present case, it is certain, that no evidence was given of such a delivery of the goods and change of their possession as the statute requires. The change was constructive and secret, not actual and apparent. The goods remained in the same house, in the same position, applied to the same uses, and so far as the public had any means of judging, in the possession and under the control of the same person, as owner. The substitution of a sign bearing only the surname "Randall," if intended not to mislead but inform the public, was a pretence and a mockery; and the delivery of the key, although symbolically a delivery of the goods as between the parties, in respect to creditors, was an idle and unmeaning ceremony. The learned judge, therefore, following the words and in the spirit of the statute, should have instructed the jury that they were bound to presume that the alleged sale, so far as it affected the rights of creditors, was fraudulent and void. The presumption, however, of a fraudulent intent which the statute creates, is not juris et de jure, but may be contradicted by proof upon the part of those against whom it is alleged. The section we are considering proceeds to say, that the facts upon which the presumption is founded, shall be conclusive evidence of fraud, unless "it shall be made to appear on the part of the persons claiming under such sale, that the same was made in good faith, and without any intent to defraud such creditors and purchasers." It must be observed, that the words of the statute are not that if it shall appear to the jury that the sale was not made with an intent to defraud creditors or purchasers, they may disregard and overrule the opposite presumption, which the statute adopts. The decision of the question is not left to their discretion, but the non-existence of a fraudulent intent must be made to appear on the part of those who claim under the sale. The meaning of this provision is clear and unambiguous. It casts the burden of proof upon the person who asserts the validity of the sale. It requires him to Randall v. Parker. show affirmatively that the real intention of the parties involved no such fraud as the law imputes to them, since it is manifest that the existence of the fraudulent intent, that otherwise must be presumed, can only be disproved by evidence that the actual intent was fair and honest. We are aware that it has been frequently asserted that when no such evidence as we have stated has been given, the question of a fraudulent intent must still be submitted to the jury, and its determination be left to their uncontrolled discretion. Such, it has been alleged, is the just construction and necessary effect of the fourth section in the third title of the same chapter which declares," that the question of fraudulent intent in all cases arising under the provisions of the chapter, shall be deemed a question of fact and not of law." Our opinion as to the true construction of this section, is widely different. We cannot assent to an interpretation that renders the salutary provisions in the preceding fifth section a dead letter, and virtually expunges them from the statute. It is a contradiction in terms to say that certain evidence when not contradicted, is conclusive, and that the same evidence, although not contradicted, may be rejected. Conclusive evidence is that which must be followed; it takes away all exercise of discretion; it establishes the fact it is adduced to prove, and it cannot be rejected by judges or jurors, without a violation of their duty and their oaths. The two sections under consideration, although found in different titles, are parts of the same law, and were enacted at the same time, and it would therefore be unreasonable to suppose that the latter was intended to repeal the former. The fifth section was originally reported by the revisers in a different and more stringent form, and had its repeal been intended, instead of being studiously amended by the legislature, as it actually was, it would have been stricken from the law. The provisions in each section, we are bound to presume, were equally intended to have the force of law, and hence to render them operative and effectual, we are bound to give to them a consistent interpretation. Nor is such an interpretation at all difficult. The question of fraudulent intent, is indeed a question of fact, but it is to be submitted as such to the determination of the jury, exactly upon the same terms and condi |