
    Hardaway v. Manson.
    Wednesday, April 17th, 1811.
    Evidence — Weight—Question for Jury. — The weight of testimony, to establish any fact, (though it be a fact upon which a question of law arises,) is a question belonging exclusively to the jury, unless it he withdrawn from their determination by a demurrer to evidence.
    See, to the same effect, Fisher’s Executor v. Duncan & Turnbull, 1 H. & M. 563.
    On the trial of an action of detinue, for a negro slave Jack, in the district court of Petersburg, the plaintiff, Peter M. Hardaway, gave in evidence, to support the issue on his part, a bill of sale executed to the plaintiff by his father William Hardaway, dated April 25th, 1802, and duly recorded, conveying to him, his heirs and assigns for ever, twenty-eight negroes, by name, (of whom Jack was one,) for and in consideration of the sum of 1,6801. current money. He further proved that the said William Hardaway had been frequently anxious to sell his said slaves before this sale to the plaintiff; that the sum of 1,6801. was a full price for them; that to the payment of that sum the plaintiff’s own means were fully adequate, independently of the property acquired by him by the said purchase ; and, moreover, he gave bond with good and sufficient security for the payment of the same ; having actually paid in part the sum of 9001. or thereabouts ; nearly all of which sum of 9001. was paid, not to the said William Hardaway himself, but to his creditors, in discharge of their just demands against him, and such payments were by the plaintiff accounted for, allowed as discounts, and actually credited upon the said *bond ; that at the time of the execution of the said bill of sale, the said William Hardaway delivered to the plaintiff all the slaves therein mentioned, though with an express verbal stipulation that part of the said slaves, of whom Jack was one, should remain with him the said William Hardaway till the Christmas following, in order to finish the crop; but the plaintiff and the said William Hardaway lived upon the same plantation, within one hundred yards of each other, and used the same gardens, &c. and the stipulation, that part of the slaves, of whom Jack was one, should remain with the said William Hardaway until the Christmas ensuing, was a part of the original contract, which was accordingly carried into effect; that, at the expiration of that time, the plaintiff hired a part of the said slaves (including Jack) to the said William Hardaway, for a valuable consideration, for the ensuing year, (1803,) and, again, on the 23d. of December, 1803, for the year 1804. It further appeared from the testimony, that the slaves had always, from the date of the bill of sale, been registered on the commissioners’ books of Dinwiddie county, as the property of the plaintiff, by whom the taxes chargeable thereupon had always been paid: “And a witness of the plaintiff, who was intimately acquainted with both parties to the said bill of sale, who drew that instrument, and who lived, during a considerable portion of the. time in which these transactions happened, in the family of the said William Hardaway, declared that he never heard a syllable drop from either of the said parties, or observed any part of their conduct, that justified the remotest suspicion that there was any fraudulent desig'n in making the said contract; and that he verily believed that it was a bona fide transaction.” It was further proved that, in February, 1804, the said slave Jack, then being in the possession of the said William Harda-way, by virtue of the bailment last mentioned, was seized by the sheriff of
    ^Dinwiddie county to satisfy a fi. fa. against him, and sold by the sheriff, though forbidden by the plaintiff, under which sale the defendant held ; the debt, on which the judgment was rendered, having originated prior to the execution of the bill of sale, though the judgment was not rendered till afterwards.
    This being all the evidence in the case, the defendant’s counsel moved the court to instruct the jury “that the law was, that, wherever there is an absolute bill of sale for a valuable consideration, the possession must accompany and follow the deed, in order to make the conveyance valid against creditors; that, if the possession remain in the grantor, that circumstance is not only evidence of fraud, but is fraud per se, not to-be controverted by any evidence of fair and bona fide intentions in the contracting parties, however strong; and that, in this particular case, the possession of the said slaves stated to have remained in the bargainor William Hardaway, under the circumstances, and for the purpose above stated, after the execution of the said bill of sale to the plaintiff, was such a possession as was not only evidence of fraud, but of itself fraud, which no countervailing evidence, however strong, of bona fide intentions in the parties to the contract, could wipe away ; and therefore the jury ought to find for the defendant; and the court did so instruct the jury, and added, that the possession proven to have remained in the bargainor William Hardaway was such, that counsel could not go into argument to prove to the jury that the possession.,
    
      so as aforesaid proven, was not such a possession as the rule of law (sanctioned by the court as above mentioned) applied to and established as a fraud of itself.” To which opinion the plaintiff by his counsel excepted.
    Verdici and judgment for the defendant, and appeal taken.
    Hay, for the appellant.
    The court erred in the instruction *to the jury. It is not law that, where possession remains with the vendor, the transaction is, in all cases, fraudulent per se. The court also went too far in deciding a question of fact, as well as law.
    The doctrine of fraud per se, now brought forward, is of recent origin : we are indebted for it to Mr. Justice Buller. These words have obtained possession, in defiance of the plainest principles of reason and justice. Prior to his time there was no decision, that possession must follow and accompany the deed, otherwise it is fraud per se. Eord Coke never thought a transaction, fair and honest in fact, was fraudulent in law. In Twine’s Case,  the circumstance that possession did not accompany the conveyance is not said to be fraudulent per se, but only evidence of fraud, or a circumstance to be weighed with other circumstances.
    I admit the modern judges have sanctioned the doctrine of Buller; as in Hamilton v. Russell, 1 Cranch, 309.
    No counsel for the appellee.
    
      
       Evidence. — See monographic note on "Evidence” appended to Lee v. Tapscott. 2 Wash. 276.
      Sale of Personalty — Retention of Possession by Vendor — Effect.—On this subject, the principal case was cited in Mackey v. Bell. 2 Munf. 525; Sydnor v. Gee, 1 Leigh 546; Davis v. Turner, 1 Gratt. 448. See foot-note to this last case.
    
    
      
       See 2 T. R. 594, Edwards v. Harben.
    
    
      
      Ob) 8 Go. Rep. 83, b.
    
   Tuesday, April 23d, (in the absence of the president,)

JUDGE ROANE

reported the unanimous opinion of the court

(consisting of ROANE, BROOKE and CABEEE) that the judgment be reversed.

The court’s opinion was entered as follows:

“It seems to the court here that there is error in the said judgment, in this, that the district court instructed the jury, at the trial, that the possession of the slaves referred to in the bill of exceptions, which remained in the father, under the circumstances and for the purposes therein stated, after the execution of the bill of sale to the plaintiff, was such a possession as was not only evidence of a fraud, but amounted to a fraud in itself, and that that possession was such that counsels should *not be permitted to go into argument to prove to the jury that it did not itself amount to and establish a fraud ; this court being of opinion that the weight of the evidence, touching the possession aforesaid, was a question belonging exclusively to the jury, and ought to have been left with them, without any such declaration or direction as aforesaid, unless the court had been compelled by a demurrer to evidence to decide upon it. ”

Judgment reversed, and cause remanded, “with direction that the court, upon the future trial, shall forbear to give any decision upon the weight of testimony as aforesaid, unless it be required in the manner herein before stated.” 
      
       Note. See post, Alexander v. Deneale.
     