stances or poverty of the husband, wife, parents, or next of kin of the deceased is not to be taken into consideration on the question of damages: Chicago etc. R. R. Co. v. Howard, 6 Ill. App. 569; Chicago etc. R. R. Co. v. Henry, 7 Id. 322; Chicago v. McCulloch, 10 Id. 459; Illinois Central R. R. Co. v. Baches, 55 Ill. 379, 388. It is proper to show the amount of the usual earnings of the deceased, and that the plaintiff was his wife, and that they had minor children whom it was the legal duty of the deceased to support; but it is error to admit evidence that the plaintiff and her children had no other means of support besides this: Chicago etc. R. R. Co. v. Moranda, 93 Id. 302. A verdict against a railroad company for ten thousand dollars for negligence in causing the death of a switchman should be set aside, it appearing that the next of kin entitled to the benefit of the verdict was a mother in comfortable pecuniary circumstances, who had derived no profit from the earnings of her son, nor was likely to profit by his earnings had he lived: Atchison etc. R. R. Co. v. Brown, 26 Kan. 443. But in an action of negligence for causing death, it may be shown that there is a reasonable expectation of pecuniary advantage from a person bearing the family relation, and the destruction of such expectation by the negligence causing the death of the party from whom it arose will sustain the action. It is not necessary to sustain the action that the next of kin should have a legal claim upon the deceased for support: Pennsylvania R. R. Co. v. Adams, 55 Pa. St. 499; Pennsylvania R. R. Co. v. Keller, 67 Id. 300; see Atchison etc. R. R. Co. v. Brown, 26 Kan. 443. In an action by a mother for causing the death of her son, evidence of her indigent condition and dependence upon the son is admissible to show the reasonable expectance of pecuniary assistance from the deceased, but not for the purpose of increasing the amount of damages: International etc. R. R. Co. v. Kindred, 57 Tex. 491; Potter v. Chicago etc. R'y Co., 21 Wis. 372.

SEDUCTION.-Pecuniary circumstances and social position of both parties may be shown: Note to Weaver v. Bachert, 44 Am. Dec. 175. In a suit by plaintiff for her own seduction, evidence of her financial condition was not admissible to affect the question of damages: West v. Druff, 55 Iowa, 335. And in this case it was said that the plaintiff did not claim or show that the defendant availed himself of her poverty to effect her seduction.

SLANDER AND LIBEL.-In Larned v. Buffington, 3 Mass. 546, it was held that in an action of slander the plaintiff may give in evidence, to aggravate the damages, his own rank and condition of life, and also that the defendant may avail himself of such evidence when it will have a legal tendency to mitigate the damages. See McAlmont v. McClelland, 14 Serg. & R. 363. The pecuniary circumstances of the plaintiff and his family, and all the circumstances of the case, may be taken into consideration, and exemplary damages may be awarded: Clements v. Mahoney, 55 Mo. 352; Shute v. Barrett, 7 Pick. 82, 86. It is held that the plaintiff's poverty is not admissible in an action of slander, in Ware v. Cartledge, 24 Ala. 622; S. C., 60 Am. Dec. 489.

EXEMPLARY DAMAGES FOR ACT PUNISHABLE CRIMINALLY: See note to Austin v. Wilson, 50 Am. Dec. 770; Porter v. Seiler, 62 Id. 341, and cases cited in the note 347. Allowance of exemplary damages for the act of a servant: See note to Hagan v. Providence etc. R. R. Co., Id. 379 et seq.

PRINGLE V. RHAME.

[10 RICHARDSON'S LAW, 72.]

SALE OF CHATTEL IN PAYMENT OF ANTECEDENT DEBT, WHERE DEBTOR RETAINS POSSESSION and use of property, is not fraudulent as to creditors, if the debtor makes a bona fide contract to pay hire.

DEBTOR WILL NOT BE ALLOWED TO SECURE ADVANTAGE AT EXPENSE OF CREDITORS as price of preferring one of them.

TROVER for a slave sold by defendant as sheriff, under execution against E. D. Pringle, who had previously transferred the slave to the plaintiff in part payment of a debt due by him to the plaintiff. The slave remained in the possession of E. D. Pringle until the alleged conversion, and E. D. Pringle had given a note for seventy-five dollars to the plaintiff for the hire of the slave. At the time of the sale, and ever since, E. D. Pringle was insolvent. The jury were instructed that the circumstances attending the sale were not conclusive evidence of fraud, and it was submitted to them whether the evidence showed fraud between the plaintiff and E. D. Pringle. Verdict for plaintiff, and appeal and motion for a new trial by the defendant, on the ground, among others, that the jury were instructed that the sale of a chattel in consideration of a preexisting debt, the chattel remaining in the possession of the vendor, was not fraud per se, and therefore incapable of explanation.

Moses and Spain, for the appellant.

Haynsworth and Green, contra.

By Court, WITHERS, J. The leading question presented by this case is whether it is concluded by the rule derivable from Smith v. Henry, 1 Hill (S. C.), 16. In that case, as in this, the facts concurred; to wit, that a debtor sold personalty (a slave in the present instance, several in the other) to an antecedent creditor, and the possession was not changed, but in each case remained with the debtor. In Smith v. Henry, supra, the debtor continued to use the property as his own, there being no fact established that he was to pay any hire; whereas in the present case a note was given for hire by the debtor. Does this fact, supposing the contract for hiring to be bona fide, distinguish the two cases and vindicate the doctrine held upon circuit, that possession remaining in the vendor upon the contract of hiring opened the inquiry as to fraud in the sale, and carried it to the jury as a question of contested fact?

There is no doubt we must give an affirmative answer, and maintain that the case of Smith v. Henry, supra, does not apply where such a contract for hire bona fide is made between vendor and vendee.

For this we have the clear and distinct authority of Judge Harper himself, who pronounced the opinion in the case of Smith v. Henry, supra. This appears in the case of Jones v. Blake, 2 Hill Ch. 636, 637. In that case the stipulation to pay hire was adjudged to take it out of the principle of Smith v. Henry, supra, and it is affirmed, that the language used in the latter case, and the quotations from Twyne's Case, 3 Co. 80, and Sheppard's Touchstone, introduced to support it, clearly import a principle which cannot apply where the debtor retains the possession after an absolute sale, in pursuance of an honest stipulation for hire. By consulting the case of Jones v. Blake, cited above, it will be seen that the principle of Smith v. Henry, supra, was that the law will not allow a debtor to prefer one creditor over another; he will not be allowed to secure an advantage (that is, an advantage in relation to property, profit, or pecuniary advantage) at the expense of his creditors as the price of such preference. The creditor will not be allowed to give a bribe, which means in law pecuniary benefit, as the price of the preference given to him over other creditors. "In this case," says Chancellor Harper, "the proof is distinct and certain that the donor was to pay hire for the slaves. Can I say that his retaining possession under this stipulation was the securing a benefit to himself? I do not see how. In general, a party who hires slaves may be supposed to do so for his own convenience. But if the price be full and fair, the law must regard the transaction as an exchange of equivalents." As to the attempts which the chancellor concedes such a construction will call forth to "evade the rule as laid down in the case of Smith v. Henry," supra, he observes: "But it must be the business of the court to guard against evasions. If the stipulation were kept secret between the parties themselves, if the hire were very inadequate, if it remained for a long time not paid or demanded—all these would be circumstances to show the stipulation to be colorable or evasive." Although the word "donor" is used above, the fact of the case was, that the slaves were claimed as having been transferred to pay an antecedent debt due from Goodwyn to his daughter, Mrs. Blake, precisely of the character of the debt owing by Edwin D. Pringle to the plaintiff, in the case now under consideration.

We have, then, an exposition of Smith v. Henry, supra, peculiarly authoritative, which shows that the doctrine of that case does not exclude the evidence of hiring as matter to be weighed upon the question of fraudulent sale as between debtor and creditor. It results, necessarily, that the circuit court could not exclude the evidence of hiring by the vendor, and if not, that it could not hold the transaction before it to be subject to the legal presumption of fraud per se; that the question of fraud must go to the jury, who have a right to determine it. The complaint here is not that the jury were not properly admonished as to the consideration of the fact of hiring, but it is, that the ruling on circuit did not exclude the whole influence of that fact. According to the exposition of Smith v. Henry, already referred to, with which this court concurs, the instruction now insisted on ought not to have been given. If we were to go back to the progenitor of Smith v. Henry, supra (Twyne's Case, 3 Co. 80), much might be gathered in support of the exposition we have adopted; but that examination can be made by him who has occasion to make it, and need not burden this opinion.

The case of Fulmore v. Burrows, 2 Rich. Eq. 95, has been cited to show that an agreement to pay hire and notes executed for it will not withdraw a case from the conclusive presumption of fraud. Upon examining that case, it is found that the fact of hiring was heard as a part of the case, was considered, and was adjudged to have no weight, because it was itself held to be merely pretensive, and therefore the rule of Smith v. Henry, supra, was applied to that case. If the jury had so disposed of the like fact in the present case-and we should have been quite content if they had--we should have found here, also, a proper instance for the application of Smith v. Henry, supra.

In the case of Motley v. Albert, 11 MS. Opinions, 34, the sale was attacked upon the ground that there was no consideration at all for the property pretended to have been purchased; and the effort to rebut the continued possession of the vendor by evidence of hiring was held unsuccessful, for such evidence, as to any period of time, was extremely obscure, indefinite, and uncertain, and no evidence at all of hiring was given for three or four years before executions were levied upon the property; but it must be observed that evidence as to hiring was heard and considered, which ought not to be, if from the two concurring and precedent facts which make the case of Smith v. Henry, supra, the law has drawn a conclusive presumption of fraud. Thus much for the leading question in this cause,

The remaining question was whether, if the sale to the plaintiff were exempt from fraud, an execution, lodged before such sale was satisfied in full, or whether a small balance was not due. That point produced a contest in evidence, and we see no warrant to overturn the conclusion of the jury, to whom it was referred, with such instructions by the court as have originated no objection touching them in the grounds of appeal.

The general conclusion is, that the matter of fraud, in this instance, was a question of fact, and not of legal presumption conclusive and irrebutable; that the other point also presented an inquiry of fact, and whatever we might have concluded, if lawfully charged with the questions of fact, we ought not to invade the province of the jury; and must adjudge this appeal to be dismissed.

O'NEALL, WARDLAW, WHITNER, GLOVER, and MUNRO, JJ., concurred.

Motion dismissed.

SALE OF CHATTEL WITHOUT CHANGE OF POSSESSION MAY BE FRAUDULENT AND VOID as to creditors, but the retention of possession by the vendor is merely presumptive evidence of fraud, which may be rebutted by other evidence: Jarvis v. Davis, 61 Am. Dec. 166, and cases cited in the note 169; Shaddon v. Knott, 58 Id. 63. See Garrett v. Rhame, ante, p. 557.

DEBTOR MAY GIVE PREFERENCE TO PARTICULAR CREDITOR: Kuykendall v. McDonald, 57 Am. Dec. 212, and note 217.

MONTAGUE V. DENT.

[10 RICHARDSON'S LAW, 135.]

GAS CHANDELIERS AND PENDENT GAS-BURNER ATTACHED BY SCREWS TO SMALL PIPE that conveys gas into dwelling-house, and which could be detached without any escape of gas or injury to the pipe or any part of the building, do not pass under a conveyance of the freehold made upon a sale to foreclose a mortgage thereon, and the same may be sold by the sheriff under executions against the mortgagor.

RULE RESPECTING FIXTURES IS SAME BETWEEN HEIR AND EXECUTOR, vendor and vendee, and mortgagor and mortgagee.

TRESPASS quare clausum fregit against the sheriff for the removal and sale of gas chandeliers and a pendent hall gas-burner. The plaintiff was the purchaser of the freehold under a sale to foreclose a mortgage thereon; and the sheriff, after the fore-closure sale, sold the furniture in the house and the gas-fixtures under executions against the mortgagor. The gas-fixtures