| Tex. | Jul 1, 1858
The material question in this case arises
The Court instructed the jury that they should consider the fact that the vendor remained in possession of the slaves after the sale (among other things) in determining whether the sale was made in fraud of creditors; without indicating to the jury whether such possession was regarded by the law as conducing to show the fraudulent character of the sale, or its fairness.
The charge asked by the appellant was “ that if the jury believe from the evidence that the negroes in controversy remained in the possession of Claiborne Hill, the vendor, after the conveyance to defendent, it is prima fade evidence of fraud, and unless that possession is explained satisfactorily and consistently with good faith they will find for the plaintiff Gibson.”
We have a Statute which provides that “ the Judge shall not in any case, civil or criminal, charge or (comment) on the weight of evidence or testimony, and he shall so frame his charge as to submit questions of fact solely to the decision of the jury, and he shall decide on and instruct them as to the law arising on the facts, distinctly separating all questions of law from questions of fact.” (Hart. Dig., Art. 758.)
The law arising upon the fact that the vendor remained in possession of the property after the sale, was the prima fade presumption that the sale was fraudulent. Such presumption, though not conclusive, changes the burden of proof, and requires explanation to remove it. Such Was the doctrine maintained by this Court in the case of Bryant v. Kelton and Uzzell, adm’r; in which the subject is reviewed from Twyne's case down to the present time. (1 Tex. R. 415.) In that case Justice Lipscomb lays down the rule by saying “ the legal effect, then of the possession remaining with the vendor, would be a presumptive or prima fade conclusion that it was frau
Such charge would not be objectionable as being upon the weight of evidence. For the law has attached to such evidence a particular weight, of which the jury should be informed by the Court.
We think that the facts of this case, no explanation of the vendor’s possession after sale being given, required that the charge asked should have been given, and that its refusal was error.
Judgment is reversed and cause remanded.
Reversed and remanded.