Appeal from the District Court of the Twelfth Judicial District, County of San Francisco.

In 1851, the plaintiff Bacon, and E. L. Boardman, commenced business in the city of San Francisco, as hardware merchants, under the style of Boardman, Bacon & Co. The business was continued until the twenty-fourth day of May, 1856, at which time the partnership was dissolved, and Bacon went out of the business. From this time to the twenty-first of June, 1856, the business was carried on by Boardman, he having exclusive possession of the goods and business. From the twenty-fourth of May to the twenty-first of June, 1856, there was no sign on the house. On the twenty-first day of June, 1856, Boardman sold out the goods to Bacon and delivered the possession thereof, and a day or two thereafter the name of R. H. Bacon was put up over the door, and business was carried on in Ms name, he employing the necessary help and paying therefor. On the twenty-third of July, 1856, one of Bacon’s clerks leaving, he imployed Boardman as clerk, who entered and took charge of the business for Bacon—Bacon in the meantime acting as bookkeeper for another house, but retifrning at intervals to look after the business, and take the money arising from the sales.

Boardman being indebted to the defendants, on the twelfth day of August, 1856, they sued out an attachment against him and seized the goods in the store as the property of Boardman. Soon after the levy of the attachment, Bacon gave the sheriff notice that he claimed the goods as his property. A trial of the right of property was had before a sheriff’s jury, and Bacon had the verdict. The defendants, Tallant & Wilde, and Griffing, indemnified the sheriff, and the property was not released. Subsequently-defend ants recovered judgment in the attachment-suit against Bbardman, and the goods were sold on execution issued on said judgment. Thereupon the plaintiff brought this suit to recover the value of the goods.

At the trial, the Court helow, at the request of defendants’ counsel, instructed the jury as follows: “ That if they believed the testimony of the plaintiff’s witness, Boardman, that he returned to the charge of the goods in question on the twenty-third of July, 1856, as testified to by him, that under the Statute of Frauds of this State, it was conclusive evidence of fraud, and there was not such a continued change of possession of the goods as to take the case out of the statute, and if the sale was fraudulent against creditors, the plaintiff could not recover.”

To this instruction plaintiff’s counsel excepted. Defendants had judgment. Plaintiff moved for a new trial, which motion was denied, and plaintiff appealed.