The opinion of the court was delivered by

The questions in this case grow out of the opinion of the county court in relation to the character, and effect, of the testimony given on trial before that court.

The doctrine has become well settled, in this state, that possession must accompany the sale, or it will be fraudulent in law, as to creditors. In relation to what amounts to a change of possession, it has been a subject of discussion, and has, in a number of cases, been considered by the court, with reference to the particular circumstances of the particular cases. It has been considered a matter of policy, that, for the prevention of actual frauds, this rule should not be relaxed ; and the important inquiry in this case is, whether what the plaintiff contends for, would tend to relax the rule. The case does not find that the defendant put himself upon the showing that this sale or assignment was fraudulent in fact, but merely void for want of such an open and visible change of possession as the law requires. The policy of this rule is to *364guard and protect the public against sales which are fraudulent in fact. The rule, requiring this change of possession, institutes the inquiry, in the case upon trial, in whom was the possession ? The application of this rule as to possession, admits that the possession may be, in fact, in a third person, as agent for the vendee. The point to be determined in this case, in the first place, was — in whom was the possession, in fact, at the time of the attachment ? If the possession was in Merrit Hall, then whose agent was Merrit Hall ? These two inquiries rest entirely in proof, and should have been settled by the jury, with proper instructions from the court, in relation to what constitutes possession and agency. The court told the plaintiff that they should instruct the jury that, if they found certain facts proved, the sale would be fraudulent in law.

Those facts might very properly have been submitted to the jury for them to find, from the facts, whether the assignment was fraudulent, in fact. For it is true, under this rule, that, although the sale might have been formal, and exact in all the outward requirements, still, in fact, it might have been fraudulent and void. And, on the other hand, although the sale might have been made bona fide, being no way fraudulent in fact, still if it lacked this outward badge, a change of possession, it would be frandulent in law, and void as to creditors. It then became important for the jury to find in whom was the possession at the time of the attachment ; for, although possession may not accompany the sale, still, if possession is taken before the attachment, that is sufficient.

The law, applicable to the case, admits of no discussion. The only question is, whether the case comes within the law; for, in this case, as in all others, the case must bend to the rule, and not the rule to the case.

The court informed the counsel, that they should charge the jury that if they found certain facts, the sale would be fraudulent and inoperative, in law. Although those facts might be sufficient to incline the mind to that conclusion, still the conclusion should have resulted from the operation of the facts upon the minds of the jury, rather than upon the minds of the court. The jury should have been directed to the inquiry whether Merrit Hall was the servant of the *365plaintiff. If he was, his possession was the plaintiff’s possession. They should, also, have been directed to inquire, whether the possession of the plaintiff was exclusive, or whether it was concurrent with the said Caleb B.

What may constitute an exclusive possession, is well considered in the case of Allen v. Edgerton, 3 Vt. R. 442. That was a case of assignment of personal property, a part of which consisted of cloth, yarn, &c. in an unfinished state, and a quantity of wool in a factory ; and it was a part of the agreement, that the assignor was to assist, or have a voice, in the sale and manufacture of the same — and that, in point of fact, the assignor was advising in relation to their manufacture. The defendant insisted, in that case, that those facts constituted a joint possession, and that the assignment was, therefore, void. The court held that a joint possession in the vendor and vendee, would be a fraud in law, and render the sale void as to creditors; but that if the sale was bona fide, in order to render it void, the possession and use of the vendor must be of the same description as that of a joint owner, in using, occupying and disposing of the property.

In that case, as in this, the important inquiry is, who was-at the head, controlling the business? And if a careful observer would be at a loss to determine, it would be deemed a joint possession. And this is a fact for the jury to find from all the facts proved in the case.

The facts in this case might with propriety have been submitted to the jury, with proper instructions, for them to find in whom was the possession, and whether it was a joint, or exclusive possession. And in determining the point, it would be proper for them to consider the fact that the plaintiff owned the store and land — that the sign had been taken down — that a new set of books had been procured, and used, and whatever other outward change there was in the circumstances, and in the persons who were in attendance upon the business of the store.

In determining in relation to fraud, in law, it made no difference where the clerk boarded, or by whom he was first informed of the change. If the question was in relation to fraud, in fact, it would be different.

The case of Farnsworth v. Shepard ,6 Vt.R. 521, recognizes *366the doctrine that the vendor may have some occasional and temporary possession of the property, without affecting the "validity of the sale.

In the case of Wilson v. Hooper, 12 Vt. R. 653, the court attach very much importance to the fact that the vendee had a deed of the premises on which the property was kept; and the question of concurrent possession was, very properly, submitted to the jury.

The case of Judd & Harris v. Langdon, 5 Vt. R. 231, is relied upon by the defendant. But that case is distinguished from the one at bar, in a number of important particulars. In that case the property sold was two colts. They were on a farm owned by the vendor. The plaintiffs took a deed of the farm, but did not put it on record till after the attachment. They never had the colts in their possession, nor did they employ any one to keep them ; nor did they furnish any keeping for them ; but they were left on the premises where the vendor had kept them, in the beeping of the same man, and foddered in the same manner as before. The present case is different in all these particulars. The plaintiff owned the store and land. On taking the assignment of the goods, the sign was taken down. A new set of books was opened. The same clerk was in the store, but he received his instructions from the plaintiff, and was in his employ, and kept the key, and had the sole care of the store. And all these facts were notorious as to the public, and actually known to the defendant. In the case of Wilson v. Hooper, the vendor and vendee were, in fact, in possession of the property, but the jury were left to find whether they had equal control and direction of it.

Judgment that the rule become absolute, and a new trial granted.

dissenting.

I have always considered that the principles adopted in this state, in relation to sales void and inoperative in law, for want of a change of possession, as highly salutary and conservative. It must be admitted that the principle has been greatly relaxed, if not abandoned, in. Great Britain, and in some of our sister states. We have rather prided ourselves for our firmness in adhering to the rule, and our determination not to advance a whit, or *367recede a jot, and have been complimented therefor by the learned and able Chancellor Kent, whose opinion, alone, is usually a sufficient authority in this court, on any question which comes up for our determination. I fear the time has arrived, which he anticipated, when we are about to yield, and retrace our steps, and to take from “ this branch of law the quality of uniformity,” and either decide directly against the rule, or engraft an exception as broad as the rule itself. The principle which was laid down in the case of Edwards v. Hasler, 2 Term R. 589, and which, it was said, had been ruled forty times in Guildhall, is, that if a creditor, or any one else, takes an absolute bill of sale or conveyance, the possession must be delivered immediately, and accompany and follow the deed. The court in this state have been very emphatic in their language on this subject, and have said there must be a substantial, visible, clear, notorious change of possession, not colorable; and in one case, where the property came back into the possession of the vendor without the consent of the vendee, still it was held to be liable to attachment by the creditors of the vendor. Emerson v. Hyde, 8 Vt. R. 352. The court have considered, heretofore, that the purchaser must take the possession entirely to the exclusion of any possession in the vendor; and have made use of these different and emphatic expressions to guard against any subterfuge or pretence by which the rule could be avoided ; and have, inflexibly, determined that a constructive possession, which always attends the ownership of personal property, should not avail to protect it against the claims of the creditors of the vendor, while there is any actual possession still remaining with the vendor. The language of Lord Ellenborough, in Woodall v. Smith, 1 Camp. 332, is, that a concurrent possession with the former owner is colorable. There must be an exclusive possession under the assignment, or it is fraudulent and void as, against creditors.

Assuming the rule of law to be as laid down in the cases above named, and in the several cases where it has been before the courts in this state, we may inquire whether there is any reason why it should not apply to the present case, or any circumstance in the case to make it an exception to the rule, except the ever varying circumstances which may al*368ways be expected to attend every case, where the object is, in fact, and in principle, the same.

I understand my brethren do not consider that it forms any exception to the rule, that the plaintiff was an assignee, and also an endorser, for C. B. Hall, the vendor. And, indeed, I know of no reason why it should. In Edwards v. Hasler, the assignment was made to a creditor. It is supposed, in all cases when the rule applies, that there is no evil intention ; and that a full and adequate consideration has been paid.

The plaintiff was an endorser, or surety, for his son, the vendor ; and, possibly, by that very act of his, the son procured goods to a large amount, and then obtained credit from the creditors, at whose suit the defendant, as sheriff, attached the property in question. The equity and justice of the claims of the attaching creditors are, at least, equal to those of the plaintiff. In examining the case, we are to look only at the evidence as stated by the court. The plaintiff claimed that he had proved an exclusive possession in himself. The defendant contended that he had proved a possession in the vendor, and acts of ownership by him, from the date of the assignment to the time of the attachment. It appears, by the bill of exceptions, that the facts, as claimed to be proved by either party, made a strong case in his favor. The defendant moved for a nonsuit, which the court declined to order. The court then told the parties how they should charge the jury, if certain facts were proved, and upon that the plaintiff submitted to a nonsuit. In determining the correctness of the positions laid down by the county court, we are not to resort to the evidence as detailed in the bill of exceptions. Every fact there claimed to have been proved might have been controverted to the jury. I shall, therefore, take no notice of the evidence in relation to the key of the store, on the one side, or any of the evidence on the other, except so far as the county court noticed them in the charge which they declared they should give, as the plaintiff was at liberty to dispute every fact there stated, and obtain the decision of the jury thereon. The court took nothing from, the jury, nor did they lay any particular stress upon any part of the testimony ; but, if certain facts were proved, they said it would be evidence of such a possession in the vendor, or, at *369least, of such a joint possession, with the plaintiff, as to render the sale inoperative. Those facts were these :

Caleb B. Hall had occupied the store, and carried on the business of merchandizing there for some time. The building was owned by his father, the plaintiff. After the assignment he, Caleb B., took the books home to his house for a few days; but, at that time, was in the store, evenings. After a few days he returned the books to the store, and was there himself, settling his accounts on book, and, when the balance was against him, paying that balance in goods, out of the store. He assisted in dealing out goods to customers, as well as to his creditors. The same clerk, Merritt Hall, remained in the store, selling goods as before the assignment, boarding with Caleb B., the vendor, as before ; informed of the assignment only by Caleb B., and spoken to, to remain there for the plaintiff, only by the said Caleb B. Was not this evidence of a possession, or joint possession, in Caleb B., as the county court decided ? To me it appears very clear that it was. What were the acts of possession of the plaintiff, as supposed, in the charge intended to be given ? Consenting that Caleb B. should thus pay his creditors-^-assuming the control — getting a new set of books, taking down the sign of Caleb B., and directing Caleb B. to employ the clerk, Neither of them calculated to hold out, publicly, that he was the sole and exclusive owner and possessor, and that Caleb B. was not such an owner and possessor.

Every thing was calculated to hold out the appearance that there was no change of ownership or possession. The former owner, Caleb B., at the store, settling his accounts, dealing out goods to his creditors, and behind the counter waiting upon customers. This clerk, who had been a member of his family, boarding with him, still remaining a clerk in the store, and a member of his family. And can it alter these unequivocal acts of possession, that the plaintiff consented to this, when his very consent is the fact which should avoid his assignment — or that he kept a new set of books — a circumstance not at all calculated to show any visible change of possession — or that he took down the sign, which might be done even while the clerk was dealing out goods — or that the clerk and the vendor acted with his consent, as his agent ? To me it appears very clear that the possession of *370the plaintiff Was nothing more than a constructive possession ; or, at least, that there were such acts of ownership and posse3Sloa in Caleb B., and so few indications of any change, of either ownership or possession, as to subject the goods in the store to the attachment of the creditors of Caleb B. Hall, the vendor. I must, therefore, dissent' from the opinion delivered by my brother as the opinion of the majority of the court.