
    Trotter v. Howard.
    j-From Beaufort.
    Whether a deed be fraudulent or bona fide, is a question of fact, and possession, or the want of possession, is but evidence tending to establish the question one way or the other.
    This was an action of trover for a negro girl. The Plaintiff shewed title to the slave under a bill of sale from Thomas A. Cabarrus, executed in the town of Washington, on the 1st of June, 1818. This bill of Sale represented the property as being, at the time of the conveyance, in the possession of the widow of the vendor’s brother, at Ocracok«. It appeared in evidence, that the Plaintiff and Thomas A. Cabarrus lived/in Washington; 
      that the negro in suit accompanied the wife of Thomas A. Cabarrus to Ocracoke, in the spring of 1817", and Mrs. Cabarrus dying the fall of the same year at the house of her brother-in-law, Augustus Cabarrus, at Ocra-coke, the negro remained there until Augustus Cabarrus died, when she continued with his widow until and after the bill of sale to the Plaintiff. In the last of February or first of March, 1819, the Plaintiff authorised an agent living at Ocracoke, to take possession of the slave and send her home. The agent applied to Mrs. Cabarrus, who requested permission to keep possession of the siavc until it could be ascertained ¡whether the Plaintiff would sell to her. The bill of sale was in the hand-writing of the Plaintiff, and, the subscribing witness stated, was attested by him at the request of Cabarrus, the vendor, who brought it to witness requesting him to attest it. The Plaintiff was not present when it was attested, nor had the witness ever seen the consideration mentioned in the bill of sale, paid by Plaintiff. The Plaintiff offered no evidence of the payment of the consideration, further than that which arose from the bill'of sale itself.
    The Defendant claimed the negro under a Sheriff’s sale. He produced in evidence the record of the County Court of Carteret, shewing that on the 18th of May, 3 818, a writ issued at his instance to arrest Thomas A. Cabarrus, in a plea of debt; that the writ was duly executed, and returned the 3d Monday' of August 1818 ; that judgment was rendered against Cabarrus at the November term following ; a writ of ji-fa. issued, and was levied on the slave on the 17th of May 1819, and on the 15th of July 1819. she was sold by the Sheriff, and the Defendant became the purchaser. The Defendant did not prove the day when the writ was executed, but proved, that on the day when the writ was delhered to the Sheriff, Cabarrus was at the same place with the Sheriff. Cabarrus was much indebted at the time of the sale to Plaintiff, and Defendant relied upon the record of Car-teret Court to prove that he was a creditor of Cabarrus.1
    
      The Judge instructed the Jury, that the record between Howard and Cabarrus was evidence against the Plaintiff, and proved that Howard was a creditor of Cabarrus. y- was [11Cumbent on a purchaser, in a suit where his purchase is attacked by a creditor on the ground of fraud, to prove by other testimony than his deed, the actual payment of a consideration, and that if he did not do so it was a strong presumption of fraud i and that if a negro was at a distance from the place of sale, the vendee must go or send for it in a convenient time ; that the circumstance of the slave’s continuing with the sister-in-law of the vendor, from the date of the bill of sale to the Plaintiff until the sale by the Sheriff, was too long a time, and that such a possession was in law fraudulent against the present Defendant.
    The Jury found a verdict for the Defendant. A motion for a new trial was refused, and judgment rendered, from which Plaintiff appealed.
    
      Ruffin for tiie appellant, Gasion for appellee.
    The Reporter did not hear the arguments in this case, and has not been able satisfactorily to ascertain the points discussed by the counsel.
   IX Aim, Judge.

-.1 will not say in this case, that the bill of sale, unaccompanied with possession, was not fraudulent under the 13th of Elia. Ch. 5 ; nor will I say that the Jury ought not so to havefoundit: but in my opinion, the decision of that question properly and of right, belonged to the Jury. ’Tis the province of the Court to expound the Law, and it is as much the province of the Jury to pass upon the facts. The trial by Jury is guaranteed by the Constitution of the State; and the act of 1796, ch. 4, was passed for the purpose of preventing Judges from giving opinions to the Jury on matters of fact. The statute of the 13th of Elia. Ch. 5, declares that all conveyances made with intent to defraud creditors, shall be void and of no effect $ and whether a con-veyancc comes within the operation of that statute' — .whether it is made with intent to defraud creditors or not. is a question of fact, which, under all the circumstances of the case, properly belongs to a Jury to decide. In fisc absence of all other testimony, a Jury are at liberty to say, if they think fit, that a deed not accompanied with possession, is per se, fraudulent and void. Whether it is so or not, is a matter of fact, and not a question of law.

If in an action of trover, a demand and refusal bo found by special verdict, a Court would not give judgment on such verdict, because a demand and refusal is not a conversion, but only evidence of it; so, when the question is, whether a deed is fraudulent or not. If a Jury should find the facts, that a deed was absolute on the face of it, but that the vendor remained in possession of the property conveyed by it, such finding would not authorise the Court to give judgment — because the facts so found would not per se, make the deed void, but would be only evidence of fraud. , And I must here repeat what I said in the ease of McRee v. Houston—(Murph. Reps. 450,) that the law was so understood when we separated from the mother country in the.year 1776: for in the case of Codogan v. Kennith—(Caw. 434,) Lord Mansfield said, that the statute of the 13th of Elis, said not a word about possession; but that if the vendor remained in possession, alter a sale of goods, as the visible owner, it was evidence of fraud \ because goods pass by delivery.

It is under these impressions that 1 regret my concurrence with the opinion given in the case of Gaither v. Mumford—(N. C. Term Rep. 167.) Nor have I formed ¡he opinion which I am now giving, without due consideration of the case of Edwards v. Harben—(2 Term Rep. 587,) and the case of Banford v. Bason and others—(1b. 394, Note A,) and also the case of Hamilton v. Russel-(1 Cranch 310, 316.) The line of demarkation between the functions of the Court and those of the Jury, is so strongly drawrn by the Constitution of the State, and the act of 1796, (the latter declaring that it shall not be lawful for a Judge to give an opinion to the Jury, whether a fact is proved or not,) that to yield to those authorities, would be to transcend it.

Henderson, Judge.

I accord with Judge Hall, for the reasons which he has given. Whether a deed be fraudulent or bona fide, is a question of fact, and possession, or the want of possession, is evidence tending to establish it one way or the other. To make the deed void because possession does not follow it, its making it so, not because it is fraudulent, but because possession is wanting. It is true that the want of possession is so strong an evidence of fraud, that the evidence is taken for the fact, because it almost invariably follows, that a conclusion of fraud is drawn by the Jury, as a demand and refusal is frequently confounded with a conversion, for the same reason. But 1 should thi ¡k, that even in England, where it has been certainly decided of late, that possession not accompanying the deed is per se a fraud, and incapable of explanation, that if issue were joined whether a deed was fraudulent or not, and the Jury should find that the .deed was absolute, but that the possession did not accompany it, they would be told that they had found the evidence and not the fact.

It is unnecessary for me to undertake to account for the late change in the English decisions ; but I apprehend a solution may be found in the great disposition prevailing in all commercial countries, to make the possessor of a chattel its ow ner, where purchasers or creditors are concerned, of which disposition a strong evidence is afforded by the statute of James, relative to the possession of goods by a trader, who afterwards becomes a bankrupt. Nor'do I feel, myself bound by the decision of the late Supreme Court, in the case of Gaither v. Mumford, (N. C. Term R. 167,) for however I may be disposed to follow precedents, and particularly those of our own Courts, yet I cannot yield my assent to a decision which converts a question of fact into a question of Law, and transfers from the Jury to the Court, that, which, by the fundamental laws of our State and jurisprudence, exclusively belongs to the Jury. How the Jury would have found in this case, whether 01 not they would not have drawn thé same conclusion which was drawn l>y the Judge, it is not my province to determine. Let a new trial be granted.  