CLOPTON, J.
— Appellee brings the action of trespass for the alleged wrongful seizure of a stock, of goods under attachment against Sims & Reeves, which he purchased from them for cash. The defendants are the sheriff, the attaching creditors, and the sureties on the bond of indemnity given to the sheriff, who seeks to defeat the action on the ground of fraud in the sale. The rules as to the burden of proof in such cases may be epitomized as follows: Fraud not being presumed, when the transaction is lawful and honest on its face, the onus [335] is primarily on defendants to show a fraudulent purpose on the part of the debtors making the sale, and that plaintiff had notice thereof, or information of facts and circumstances sufficient to charge him with notice. — Stix v. Keith, 85 Ala. 465. Defendants having shown the existence of the debts of the attaching creditors ante-dating the sale, the necessity of proving a valuable consideration devolved on plaintiff as the purchaser. Lipscomb v. McClellan, 72 Ala. 151. To sustain a sale against the existing creditors of the vendor, not only must the purchaser pay a fair and reasonable price, but the sale must be also bona fide. Proof of an adequate and valuable consideration raises the presumption that the sale is fair and honest, which may be rebutted or overcome, and operates to shift the burden on the attaching creditors of showing mala fides in making the sale — of proving a fraudulent intent on the part of the seller, and notice thereof to the purchaser, or of facts putting him on inquiry which, if followed up in good faith, would lead to a knowledge of such intent. — Hodges v. Coleman, 76 Ala. 103; Spira v. Hornthall, 77 Ala. 137. The first charges asked by plaintiff substantially assert the foregoing propositions.
Not controverting these rules, the objection urged by appellants to the charges, especially the first, is, that to enable defendants to rebut the presumption arising from proof of a valuable consideration, they exact evidence of a character too narrow and onerous. The first charge is in this language: “That if the evidence reasonably satisfies them [the jury] that plaintiff bought the goods, paying a fair and reasonable price for them, they must find for the plaintiff, unless the evidence reasonably satisfies them that plaintiff’s vendors made said sale with the intent or purpose to delay, hinder or defraud their creditors, and that when plaintiff made his purchase, he knew or had notice that such was the intention or purpose of his vendors, or had inform ition of suspicious circumstances which ought to have led him to make inquiry, and if followed up would have led to knowledge of such intent.” When the charge is referred to the evidence, we do not think it obnoxious to the criticism made by counsel for appellant. Defendants did not assail the adequacy or valuableness of the consideration, nor was there any evidence tending to show the reservation of a secret benefit. The real issues were, whether the vendors made the sale with intent to hinder, delay or defraud their creditors, and whether plaintiff had notice thereof, actual or constructive. The charges, cover and state correctly the principles applicable to these issues. Neither, as we understand them, do they exclude the right of defendants to rebut [336] the presumption by proving any act, the direct and necessary consequence of which is to defraud the creditors of the vendors— such as the reservation of a secret benefit. Such reservation is itself evidence of a fraudulent intent, and of the purchaser’s^ participation therein.
The court further charged the jury, at request of plaintiff, that they “are not allowed to infer fraud, when the facts out of which it is sup posed to arise may well consist with honesty and pure intention;” and also, “if the circumstances in this case, relied on to sustain fraud, are fairly susceptible of an honest intent, that construction should be placed upon them.” These charges invade the province of the jury. In Smith v. State, 88 Ala. 23, the charge asked was, “if any of the evidence in the case admits of two or more constructions, one of which is favorable to the defendant, and one unfavorable to-him, the jury must put the construction upon it, if reasonable, that is favorable to defendant.” We held there wras no error in the refusal to give this charge. Its vice wras said to consist in the fact that it is not based ipon the relative reasonableness of the two constructions. And in Pollak v. Searcy, 84 Ala. 259, the language of the instruction being, “that, if the facts relating to the sale of -the property in question admit of two constructions, the one rendering it fraudulent, the other honest and valid, the latter must be accepted and acted upon ;” it is said: “This instruction hypothesizes nothing as to the relative strength of the testimony or belief, supporting the alternate constructions. These may be weak, and still not so weak or worthless as to fall within the asserted rule. Admit, in the sense here employed, is the synonym of tolerate. A paraphrase of the sentence would be, that unless the testimony tending to ptrove the fraud is so clear as to-admit of no other conclusion, then the jury must find the conveyance valid. The rule declared is too exacting.”
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CLOPTON, J.
— Appellee brings the action of trespass for the alleged wrongful seizure of a stock, of goods under attachment against Sims & Reeves, which he purchased from them for cash. The defendants are the sheriff, the attaching creditors, and the sureties on the bond of indemnity given to the sheriff, who seeks to defeat the action on the ground of fraud in the sale. The rules as to the burden of proof in such cases may be epitomized as follows: Fraud not being presumed, when the transaction is lawful and honest on its face, the onus [335] is primarily on defendants to show a fraudulent purpose on the part of the debtors making the sale, and that plaintiff had notice thereof, or information of facts and circumstances sufficient to charge him with notice. — Stix v. Keith, 85 Ala. 465. Defendants having shown the existence of the debts of the attaching creditors ante-dating the sale, the necessity of proving a valuable consideration devolved on plaintiff as the purchaser. Lipscomb v. McClellan, 72 Ala. 151. To sustain a sale against the existing creditors of the vendor, not only must the purchaser pay a fair and reasonable price, but the sale must be also bona fide. Proof of an adequate and valuable consideration raises the presumption that the sale is fair and honest, which may be rebutted or overcome, and operates to shift the burden on the attaching creditors of showing mala fides in making the sale — of proving a fraudulent intent on the part of the seller, and notice thereof to the purchaser, or of facts putting him on inquiry which, if followed up in good faith, would lead to a knowledge of such intent. — Hodges v. Coleman, 76 Ala. 103; Spira v. Hornthall, 77 Ala. 137. The first charges asked by plaintiff substantially assert the foregoing propositions.
Not controverting these rules, the objection urged by appellants to the charges, especially the first, is, that to enable defendants to rebut the presumption arising from proof of a valuable consideration, they exact evidence of a character too narrow and onerous. The first charge is in this language: “That if the evidence reasonably satisfies them [the jury] that plaintiff bought the goods, paying a fair and reasonable price for them, they must find for the plaintiff, unless the evidence reasonably satisfies them that plaintiff’s vendors made said sale with the intent or purpose to delay, hinder or defraud their creditors, and that when plaintiff made his purchase, he knew or had notice that such was the intention or purpose of his vendors, or had inform ition of suspicious circumstances which ought to have led him to make inquiry, and if followed up would have led to knowledge of such intent.” When the charge is referred to the evidence, we do not think it obnoxious to the criticism made by counsel for appellant. Defendants did not assail the adequacy or valuableness of the consideration, nor was there any evidence tending to show the reservation of a secret benefit. The real issues were, whether the vendors made the sale with intent to hinder, delay or defraud their creditors, and whether plaintiff had notice thereof, actual or constructive. The charges, cover and state correctly the principles applicable to these issues. Neither, as we understand them, do they exclude the right of defendants to rebut [336] the presumption by proving any act, the direct and necessary consequence of which is to defraud the creditors of the vendors— such as the reservation of a secret benefit. Such reservation is itself evidence of a fraudulent intent, and of the purchaser’s^ participation therein.
The court further charged the jury, at request of plaintiff, that they “are not allowed to infer fraud, when the facts out of which it is sup posed to arise may well consist with honesty and pure intention;” and also, “if the circumstances in this case, relied on to sustain fraud, are fairly susceptible of an honest intent, that construction should be placed upon them.” These charges invade the province of the jury. In Smith v. State, 88 Ala. 23, the charge asked was, “if any of the evidence in the case admits of two or more constructions, one of which is favorable to the defendant, and one unfavorable to-him, the jury must put the construction upon it, if reasonable, that is favorable to defendant.” We held there wras no error in the refusal to give this charge. Its vice wras said to consist in the fact that it is not based ipon the relative reasonableness of the two constructions. And in Pollak v. Searcy, 84 Ala. 259, the language of the instruction being, “that, if the facts relating to the sale of -the property in question admit of two constructions, the one rendering it fraudulent, the other honest and valid, the latter must be accepted and acted upon ;” it is said: “This instruction hypothesizes nothing as to the relative strength of the testimony or belief, supporting the alternate constructions. These may be weak, and still not so weak or worthless as to fall within the asserted rule. Admit, in the sense here employed, is the synonym of tolerate. A paraphrase of the sentence would be, that unless the testimony tending to ptrove the fraud is so clear as to-admit of no other conclusion, then the jury must find the conveyance valid. The rule declared is too exacting.”
The charges are based on the expression so repieatedly used, “fraud is never to be presumed.” This, and other poropjositions growing out-of its application, such as those employed in the instructions under consideration, should not be regarded as statements of absolute and inflexible rules of law, subject to no qualification or exception, but rather as rules for the guidance of courts and juries in considering and weighing the testimony as to the facts of the- transaction. While one skilled and accustomed to drawing inferences from established facts would understand the import and bearing' of such expressions, when used in an instruction to the jury, the natural tendency is to mislead the average juror, unless properly qualified and explained. Fraud, like any other fact, the sub[337] ject of judicial inquiry, may be proved by circumstantial, as well as by positive evidence. In the majority of cases it is capable of being proved only by circumstances. There is nothing in the nature or improbability of fraud which calls for a greater quantity of proof to establish it than that which is required to establish the facts in any civil action. Black, O. J., observes : “The frequency of frauds upon creditors, the supposed difficulty of detection, the powerful motives which tempt an insolvent man to commit, it, and the plausible casuistry with which it is sometimes reconciled to the consciences of persons whose previous lives have been without reproach j these are the considerations which prevent us from classing it among the grossly improbable violations of moral duty; and therefore, we often presume it from facts which may seem slight.” — Kaine v. Weigley, 22 Pa. St. 179. Jurors are the sole judges of the 'conclusions of fact to be drawn from the evidence, and should be left free and unhampered by instructions from the court to put any particular construction upon the testimony, and authorized to draw such inferences as logically result from the facts satisfactorily proved. The charges under discussion withdrew from the consideration of the jury the relative strength of the testimony, and in effect instructed them, that though the evidence ma}^ reasonably satisfy them of the perpetration of fraud and justify its inference, they are not allowed to infer or impute it, unless the evidence is so clear that the facts out of which it is supposed to arise may not well consist with honesty and fair dealing, or are not fairly susceptible of an honest intent. The effect is to direct the minds of the jury from the inferences they may reasonably draw from the facts, to the inquiry, whether they may so consist or are so susceptible. Such charges are not only calculated to mislead, but exact a higher degree of certainty of proof, than 'is required in other civil cases, and are invasions of the province of the jury.
The bond of indemnity was properly admitted in evidence. Sparkman v. Swift, 81 Ala. 231.
Reversed and remanded.