
    Hanford vs. Artcher.
    A judge may lawfully refuse to modify his charge to the jury, where the modification requested would not vary the legal effect of the charge, but only its phraseology.
    
    Accordingly, on a question of fraud as to creditors arising under 2 R. S. 70, § 5, 2d ed., where it appeared that the debtor had assigned the property in question ostensibly in trust for creditors, that the plaintiff purchased it of the assignees, and then entrusted it to the debtor to sell, but the property had never been removed from where the debtor kept it when he assigned: Held, that after the judge had . read the statute to the jury, and told them, the question of fraudulent intent was one of fact for their decision, he was not bound, on the request of counsel, to charge afterward, that, if they believed the sale was made in good faith, and without any intent to defraud creditors, it was valid.
    
    And the judge having charged the jury to inquire, whether the assignment had been accompanied by an immediate delivery, and followed by an actual and continued change of possession; and that if so, then verdict should be for the plaintiff : Held, he was not bound, though requested, to charge afterward, that if the plaintiff when he purchased, actually and bona fide employed the debtor as his agent to sell, <fc. it would not render the sale void; for this was included in the charge given.
    Where a charge is requested in favor of a given proposition, which the judge cannot legally sanction without connecting other matters with it, he may overrule the request absolutely. Accordingly, he having been called on in this case to charge, that if the assignees took and retained possession till the plaintiff’s purchase, his employing the debtor as his agent did, not render the sale void: Held, that as the correctness of the proposition depended on the particular nature and object of the employment, the decision of the judge overruling it was proper.
    One of the assignees in this case was called as a witness for the plaintiff, who put him the following question: “ So far as you are concerned, was there any actual fraud in the whole transaction l” Held, irrelevant, as being an inquiry after the secret operations of-the witness’ mind, which could not affect the case one way or the other. And semble, the question was also objectionable, as being leading.
    
    Replevin, tried at the Albany circuit, October 9th, 1839, before Cushman, C. Judge. The plaintiff’s title to the goods in question was by a sale to him, from the assignees of one Norton. The latter kept a boot and shoe store, and, before the assignment, these goods constituted a part of his stock in trade. He made an assignment of them, in trust for creditors, and soon after, the assignees sold them to the plaintiff. The plaintiff thereupon made Norton his agent or clerk, and the latter took charge of the goods in that capacity as the plaintiff alleged, to sell, &c. The goods remained at the store where they were at the time Norton assigned them, and had never been removed.
    The defence was, that though Norton continued in possession ostensibly as clerk or agent, the whole was fraudulent as against creditors $ wherefore the defendant, as sheriff, and in virtue of a fi. fa. in favor of the Commercial Bank against Norton, took them, &c. Evidence was given tending to establish this defence.
    The plaintiff gave evidence that the' sale to him was upon an adequate consideration; also, evidence tending to show that after the assignment and before the sale to the plaintiff, the assignees had the exclusive control of the goods.
    Both parties gave evidence upon the question, whether Norton’s alleged situation as clerk or agent of the plaintiff was real, or colorable merely and part of a scheme to enable him to keep the goods or their avails from creditors.
    Among other witnesses called by the plaintiff to repel the fraud, was Mr. Russell, one of the assignees, to whom the plaintiff’s counsel put this question: “So far as you are concerned, was there any fraud in the whole transaction?” To this the defendant’s counsel objected, and the circuit judge sustained the objection; whereupon the plaintiff’s counsel excepted. The judge charged, that the question of fraudulent intent was a question of fact for the jury, reading to them 2 R. S. TO, h 5, 2d ed. That the first question of fact was, whether the assignment had been accompanied by an immediate delivery, and followed by an actual and continued change of possession. If the jury found it had, they must find for the plaintiff; • if otherwise, they must inquire whether there was any good reason shown, which they could approve, for non-delivery, and the want of an actual and continued change of possession. If they found such good reason, then the verdict must be for the plaintiff. If there was no delivery and continued change of possession, the law presumed fraud. ' But the plaintiff might rebut this presumption, by showing the assignment was made in good faith, and without any intent to defraud creditors. It was for the plaintiff to explain, why there was no change, if there was none; and if he had done so, the jury should find for the plaintiff; otherwise for the defendant.
    The plaintiff’s counsel excepted to the charge given, and requested the judge to charge as follows: 1. That if the jury believed the sale was made in good faith, and without any intent to defraud Norton’s creditors, it was valid; 2. If they believed the assignees took and retained possession till the sale to the plaintiff, the plaintiff employing Norton as his agent or clerk, did not render the sale void; 3. That if they found that the plaintiff, when he purchased the goods, actually and bona fide employed Norton as his clerk to sell the same, this would not render the sale void. The judge refused to alter his charge, and to such refusal the plaintiff’s counsel also excepted. The jury found a verdict for the defendant; and the plaintiff now moves for a new trial, on a bill of exceptions.
    
      M. T. Reynolds, for plaintiff.
    
      J. Van Buren, for the defendant.
   By the Court, Cowen, J.

The judge told the jury that the question of fraudulent, intent was a question of fact for them; and read 2 R. S. 70, § 5, 2d ed., directing, that if they found the assignment had been accompanied by an immediate delivery, and been followed by actual and continued change of possession, their verdict must be for the plaintiff; but if the goods continued in possession of Norton, the debtor, they must inquire whether any good reason was shown. That the explanation lay with the plaintiff, and if such good reason was shown, they should find for the plaintiff, otherwise for the defendant.

Leaving the question of fraud to the jury, and reading to them the fifth section of the statute, was fully equivalent to charging them in the language of the first instruction as prayed by the plaintiff’s counsel.

The second prayer for instructions was wrong. Though the assignees took possession and held it till they sold to the plaintiff, it did not follow that his employing Norton as his-agent or clerk, would not avoid the sale, without connecting several other considerations with it, especially the nature and object of the employment. It might have been with the direct and avowed object of defrauding the creditors, or some off them.

The third prayer for instructions was, that if the plaintiff, when he purchased, actually and bona fide employed Norton as his clerk to sell the goods, it would not render the sale void. This was virtually covered by the charge to inquire whether there had been an actual and continued change of possession. That involved the question whether Norton was employed as a mere clerk, agent or servant to the plaintiff, and was honestly to act for him in either capacity, or whether he, was put in possession as the ostensible servant, but real owner, to take the profits for his own benefit, and keep them from the creditors. In the former case, there would have been a change of possession‘in one sense, for Norton’s possession would have been that of the plaintiff; in the latter, it would have been his own continuing possession, and might have avoided the assignment and sale. The judge might, perhaps, with propriety have put this in the more specific form requested; but having substantially said the same thing in another form, he was not bound to modify his charge. The dispute was about the force of different words importing the same thing.

The question addressed to Russell, was clearly inadmissible. It was for the jury, not for him, to say whether he intended to commit a fraud. Of this, they were to judge from the whole transaction, uninfluenced by what might have been his secret intent. His conduct, and other facts to be collected from him and other witnesses, were the tests by which the jury were to decide. The operations of the witness’ mind could not affect the question one way or the other. If there was no' consideration for the assignment and no change of possession for instance, his honesty could not deprive the creditor of a right to take the goods in execution; and, on the other hand, if there was a good consideration, and an immediate delivery and continued change of possession, his fraudulent intent would not vitiate the assignment or sale. The conduct of others was mainly in question. The witness was a mere assignee, professing to have taken for the benefit of creditors. That he meant no fraud might well be, and yet the real actors have intended far, otherwise. They might have used him as an innocent instrument, so that, after his answer one way or another, the case would have stood precisely where it did before. In either view, the question was irrelevant; and I suppose it was objected to and overruled for that reason, though no ground was mentioned. If pertinent, however, another objection might have been, that it was a leading question, addressed by the plaintiff’s counsel to his own witness. The motion for a new trial must be denied.

New trial denied. 
      
      
         See per Cowen, J. in Sizer v. Miller, (ante, p. 227, 233, 234)
     