Opinion
(Spring Riding, 1804.)
1. Any fact stated in the bill and denied in the answer may be inquired into if the counsel require it, and the Court will not refuse to submit it as an issue to the jury.
2. A conveyance cannot be deemed fraudulent to defeat creditors unless it be proved that there was a creditor to be defrauded.
TAYLOR, J. Defendant has a right to require that any fact he deems important, and which is stated in the bill and denied in the answer, to be one of the issues to be inquired into, and the Court will not (297) refuse it. So an issue which HALL, J., at the last term refused was now referred to the jury, namely, whether the bill of sale made by the plaintiff to defendant's wife was intended to comprehend the negroes in question; and whether the conveyance which Smith made of the negroes in question, to Rowland, the father of defendant's wife, was intended for the fraudulent purpose of defeating creditors. Plaintiff alleged it was in trust to return the negroes to him when called for; and upon this allegation his bill was founded.
said in his charge to the jury: It is not enough for the maintenance of this issue that the parties supposed a certain person would recover against the grantor, and that the conveyance was made to defeat that person. It should appear that he was actually a creditor.
And upon this issue the jury found for the plaintiff, that it was not to defraud creditors, though there was full proof that it was intended to protect the property against the effects of an action, then depending, in which the plaintiff claimed damages for the conversion of certain slaves, in which he finally failed.
NOTE. — As to the first point, see 1 Rev. Stat. ch. 32, sec. 4, which provides that the court of equity may, at their discretion, submit a fact to the jury or decide it themselves. Upon the second point, see Brady v. Allison, post, 348.