There was undoubtedly sufficient evidence to go to the jury upon some parts of the case. They might have found upon the evidence that when the defendant received the payment from the insolvent debtor, which this action is brought to set aside and recover back, the debtor was insolvent and designed to give him a preference. But this is not sufficient, unless it is also proved that the defendant, at the time he received the payment, had reasonable cause to believe the debtor insolvent. This is a fact to be found by the jury; but to authorize them to find the fact, it must be established by competent and sufficient evidence. If there is no evidence in the case from which it is competent for the jury to infer or find that fact, then the plaintiff has not maintained his action, and it is the duty of the court to instruct the jury to that effect.

A majority of the court are of opinion that there was no evidence which would support a verdict for the plaintiff upon this part of the case, and that the ruling at the trial was right. The direct evidence introduced by the plaintiff tended to prove that the defendant had no knowledge or belief that the debtor was insolvent. And there was nothing in the circumstances on *36which the plaintiff relied, which had any legal tendency tc prove that the defendant was aware of any fact which would indicate insolvency. It did not appear that the debtor had failed to meet any obligation as it became due. It was not shown that the defendant was aware of any debts, except those named in the bond on which he was surety, and those due to himself. There was no evidence that he had any reason to suppose that the debts due to Stowell & Perley were not abundantly sufficient to meet the liabilities of the firm ; or that the debtor had not, as he professed to have done, substantially paid those debts before the sale to Paul. If the jury could have found, upon all the evidence before them, including that which was rejected, and which perhaps should have been admitted that the defendant knew or had reason to know the extent of his brother’s property at the time he received his money, there was nothing in all of it which could have authorized them to find that he knew or had cause to suspect that he then owed debts to a greater amount than his property was ample to dis charge. Exceptions overruled.