| Ill. | Sep 15, 1868
delivered the opinion of the Court:
This was an attachment, brought by Reed against Mrs. Moxon, under the act of February 13,1865, amending chapter nine of the Revised Statutes, entitled “ Attachments in Circuit Courts,” Laws of 1865, page 104. The affidavit charged the defendant with having fraudulently conveyed her property with intent to hinder and delay her creditors. The defendant denied the affidavit by plea, and on the issue thus formed a trial was had, which resulted in a verdict and judgment for the defendant.
On the trial, the court so modified the fourth instruction asked by the plaintiff as to make it necessary for the jury to find that the mortgage, alleged to be fraudulent, was made for the sole purpose of hindering or delaying creditors. This was error. If the object, in making the mortgage, was to hinder or delay creditors, the instrument was not purged, because the grantor may also have had some other purpose in view Merry v. Bostwick, 13 Ill. 210.
The second instruction for the defendant is also objectionable. The jury are there told that fraud is not to be inferred, but must be proved like any other material fact. The jury might suppose, from this, that fraud must be proven by direct evidence of a witness speaking from personal knowledge of the fraudulent intent. Fraud could rarely be proven in this mode. It must generally be proven, where it exists, by showing such facts and circumstances as to justify the jury in inferring a fraudulent intent or motive. The question for them to consider is, whether the facts proven justify the inference. They cannot presume fraud without proof, but they may infer it, if all the facts proven satisfy them that it existed. The other errors are not well assigned. It was discretionary with the court to permit the defendant to plead, and the evidence excluded on the trial was not admissible. It consisted in the statements of persons not parties to the record, and though one of them was the cleric of the defendant, or her general agent, he was not her agent in making the mortgage, and his statements, before or after the mortgage was made, are not admissible in this suit, in which she is the sole defendant. True, he is the mortgagee, and in a proceeding in chancery against both him and the present defendant, for the purpose of subjecting the mortgaged property to payment of the creditors, his statements would be receivable against himself ; but such is not the present case.
Judgment reversed.