
    Smith and Stanly v. Niel and others.
    From Bertie.
    The circumstanceof possession not accompanying the conveyance of a chattel is not per se fraud, though it may be evidence of it.
    
    Whether a conveyance comes within the operation of Stat. 13 Eliz. Ch-5, i. e. whether it is made with an intent to defraud creditors, or not* is a question of fact and not of law.
    This was an attachment sued out by the Plaintiffs against Niel, and levied on a negro slave. Wood, who claimed the slave, interpleaded, and an issue was directed to determine in whom the property in the slave was. It appeared in evidence, among other matters, that on the 30th of June, 1819, Niel executed an absolute bill of sale to Wood for the negro, but that the possession of the slave did not, accompany the conveyance, but remained continually in Niel until ten days before this attacliment issued, when Niel absconded, leaving the negro. On these facts the presiding Judge instructed the Jury, that if there was nothing but the absolute conveyance without possession, that, in point of law, was fraudulent against creditors. The Jury found that the slave was the property of Niel, and from the judgment rendered pursuant to this verdict, Wood appealed.
   Per Curiam.

We will not say that the bill of sale unaccompanied with possession was not fraudulent under the IS Eliü. CL 5 ; nor will we say that the Jury ought not so to have found it; but in our opinion, the decision of that question, properly and of right, belonged to the Jury. It is 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 13 Eliz. Ch. 5, declares that conveyances made with intent to defraud creditors shall be void and of no effect; and whether a conveyance comes within the operation of that statute, whether it is made 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 the absence of all other testimony, a Jury are at liberty to say, if tiiey 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 be 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 only be evidence of fraud. And we must here repeat what was said in the case of McRee v. Houston, (3 Murp. Rep. 450) that the law was so understood when we separated from the mother country in the year 1776; for in the case of Codegan v. Kenneth, (Cowp. 434,) Lord Mansfield said that the stat. 13 Eliz. said not a word about possession, but that if a vendor remained in possession after a sale of goods as the visible owner, it was evidence of fraud, because goods pass by delivery.

Nor have we formed the opinion which we are now giving, without due consideration of the case of Edwards v. Harben—(2 Term Rep. 587,) and the case of Bamford v. Baron et al.—(Ib. 594, 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 drawn 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. The rule for a new trial is therefore made absolute.  