N. Y. Superior Court.-Randall v. Parker.

The presumption, however, of a fraudulent intent which the statute creates, is not juris et dejure, but may be contradicted by proof upon the part of those against whom it is alleged. The section we are considering proceeds to say, that the facts upon which the presumption is founded, shall be conclusive evidence of fraud, unless "it shall be made to appear on the part of the persons claiming under such sale, that the same was made in good faith, and without any intent to defraud such creditors or purchasers." It must be observed, that the words of the statute are not that if it shall appear to the jury that the sale was not made with an intent to defraud creditors or purchasers, they may disregard and overrule the opposite presumption, which the statute adopts. The decision of the question is not left to their discretion, but the non-existence of a fraudulent intent must be made to appear on the part of those who claim under the sale. The meaning of this provision is clear and unambiguous. It casts the burthen of proof upon the person who asserts the validity of the sale. It requires him to show affirmatively that the real intention of the parties involved no such fraud as the law imputes to them, since it is manifest that the existence of the fraudulent intent, that otherwise must be presumed, can only be disproved by evidence that the actual intent was fair and honest. We are aware that it has been frequently asserted that when no such evidence as we have stated has been given, the question of a fraudulent intent must still be submitted to the jury, and its determination be left to their uncontrolled discretion. Such, it has been alleged, is the just construction and necessary effect of the 4th section in the 3d title of the same chapter which declares, “that the question of fraudulent intent in all cases arising under the provisions of the chapter, shall be deemed a question of fact and not of law." Our opinion as to the true construction of this section, is widely different. We cannot assent to an interpretation that renders the salutary provisions in the preceding 5th section a dead letter, and virtually expunges them from the statute. It is a contradiction in terms to say that certain evidence when not contradicted, is conclusive, and that the same evidence, although not contradicted, may be rejected. Conclusive evidence is that which must be followed; it takes away all exercise of discretion; it establishes the fact it is adduced to prove, and it cannot be rejected by judges or jurors without a violation of their duty and their oaths. The two sections under consideration, although found in different titles, are parts of the same law, and were enacted at the same time, and it would therefore be unreasonable to suppose that the latter was intended to repeal the former. The fifth section was originally reported by the revisers in a different and more stringent form, and had its repeal been intended, instead of being studiously amended by the legislature, as it actually was, it would have been stricken from the law. The provisions in each section, we are bound to presume, were equally intended to have the force of law, and hence to render them operative and effectual, we are bound to give to them a consistent interpretation. Nor is such an interpretation at all difficult. The question of fraudulent intent, is indeed

N. Y. Superior Court.-Randall v. Parker.

a question of fact, but it is to be submitted as such to the determination of the jury, exactly upon the same terms and conditions as all other questions of fact which it is their province to determine. The existence or non-existence of a material fact, can only be properly found by a jury when the requisite proof-the evidence that the law deems to be applicable to the fact, has been given by the party upon whom the burthen of proof is devolved. Hence, when the statute declares that a fraudulent intent shall be presumed, unless a contrary intent is proved, the jury, when no such proof has been given, has no right to deny by their verdict, the existence of the imputed fraud, and if in the exercise of power without right, such a verdict is rendered, it must of necessity be set aside as contrary to law.

The next inquiry is, what is the nature of the proof that the party asserting the validity of the sale, is bound to give, in order to rebut the statutory presumption of a fraudulent intent? The statute gives the answer. He is bound to prove, 1st, that the sale was made in good faith, and 2d, without any intent to defraud creditors and purchasers; for it is a serious mistake to suppose that those two questions are identical in meaning. The latter words are not superfluous, they are not in technical language mere surplusage; they were necessary to explain the whole intention of the legislature; they were necessary to give the sanction of the legislature to an important principle, by which the courts of law and equity in interpreting and enforcing successive statutes of frauds, have invariably been governed. The good faith of the parties, in the restricted sense in which the terms are here used, is evinced by showing that the sale was not colorable and fictitious, but was founded upon a valuable, and as the parties believed, an adequate consideration, and was intended to operate as a valid transfer of the ownership; but it is certain that such a sale may yet be fraudulent in respect to creditors. Even where a full consideration is actually given, the governing or leading motive of the parties may have been the design of preventing the application of the goods sold to the payment of the debts of the vendor, and this is the fraudulent intent which the statute imputes to them, in every case in which the vendor is permitted to retain the possession of the goods. Hence it is this intent that must be disproved, even where the sale is real and effectual. The validity of the sale and the absence of a fraudulent intent, are distinct and independent facts, both of which are necessary to be proved, and proof of the first, in no degree, alters or lessens the obligation of proving the second.

The distinction we have thus stated is by no means novel, but the rule of evidence, which it suggests, has prevailed from a very early period in the history of the law. The earliest statute of frauds is the 13 Elizabeth, Cap 5, and the earliest case under that statute is Twyne's case, 3 Rep. 81. In that case, as in the present, the consideration of the sale was the satisfaction of an antecedent debt, and the vendor was permitted to retain the possession of the property sold. The chancellor, and the two common law judges by whom he was assisted, were unanimously of opinion that the consideration,

N. Y. Superior Court.-Randall v. Parker.

which was admitted to have been proved, was wholly insufficient to rebut the presumption of an intended fraud upon creditors. The authority of this decision has never been denied or doubted; on the contrary, the rule which it established, is admitted by all the text writers, and has been followed in all the subsequent cases in the English reports, and this is so certain that the citation of authorities to prove it would be a waste of time, and an idle ostentation of research. It is true, that there is no statute in England, and never has been, which declares that the continued possession of the vendor shall be presumptive or conclusive evidence of an intent to defraud his creditors, but it is manifest that whether the presumption of fraudulent intent is an inference drawn by judges, or declared by statute, can make no difference in the nature of the proof by which alone it can be rebutted. Hence, we assent entirely to the propriety of the decisions of our supreme court in the successive cases of Collins v. Brush, Wend. 9, 198; Doane v. Eddy, 16 Wend. 523; Randall v Cook, 17 Wend. 56; in each of which the rule in Twyne's case was held to be applicable to the construction of our present statute. Had we even been compelled to refuse our assent to the propriety of these decisions, we should still have held ourselves to be bound by their authority, since we deny that their authority has been overturned, or in any degree shaken, by the subsequent determinations of the court of errors, in Smith v. Acker, Cole v. White, and Hanford v. Aitcher. In each of these latter cases not only was a valuable consideration proved, but many additional circumstances had been offered in proof to rebut the presumption of a fraudulent intent, and it was upon these additional circumstances that the senators, who were in favor of reversing the judgments of the supreme court, manifestly placed their chief reliance. In neither case did a single senator express or intimate an opinion, that had a valuable consideration alone been proved, or offered to be proved, the cause could properly have been submitted to the determination of the jury; but the refusal of the supreme court to admit evidence of additional facts, was in each case the sole cause of the reversal of the judgment.

The application of our remarks to the facts in the present case, is seen at once to be decisive. Admitting that the reality of the sale was sufficiently proved, there was not a particle of evidence to disprove the existence of a fraudulent intent; not a particle of evidence to contradict the presumption that the statute raised, and the facts in the case so forcibly suggested, that the real object of both father and son, purchaser and seller, was to secure the property from the grasp of the impending execution; in other words, to defraud the judgment creditor. Under these circumstances, the learned judge should have instructed the jury, that the presumption of fraud was rendered by the terms of the statute conclusive evidence of the fact.

The observations we have made, relieve us from the necessity of examining in detail the exceptions that were taken to the charge of the judge, since, if these observations are just, it is a necessary consequence that the exceptions are groundless. Some of the expres

N. Y. Superior Court.-Isham Williamson.

sions used by the learned judge may not have been entirely accurate, and were certainly liable to misconstruction, but his charge, taken as a whole, was much more favorable to the plaintiff than his counsel had any right to expect. He distinctly submitted to the jury the question both of a change of possession and of a fraudulent intent, and whether all the remarks that accompanied this submission were critically just, it is needless to inquire; since, if we have rightly construed the statute, these questions ought not to have been submitted to the jury at all. There was no evidence of a change of possession, no evidence to rebut the presumption of a fraudulent intent, and the learned judge would have been fully justified in directing the jury to find a verdict for the defendant, as the only verdict that, without disobedience to the statute, they could possibly render.

A single exception, independent of those to the charge of the judge, remains to be noticed. One of the witnesses, the bar-keeper, swore that a portion of his salary was still due to him; he was asked to whom he looked for payment, and the judge is supposed to have erred in overruling this question. Whether the question was proper in itself, we shall not inquire, since, had it been answered as the plaintiff wished, the answer could not have affected the merits or law of the case. In fact, the question had been already answered. The witness had sworn that he had been employed by the plaintiff alone, and, consequently, it was the plaintiff only who could have been liable to him for his wages.

The exceptions are overruled, and the motion for a new trial denied, with costs.

[At Chambers.]

Before Mr. Justice MASON.

ISHAM, Receiver, &c, against WILLIAMSON and another.

MOTION TO STRIKE OUT PLEADING FOR REDUNDANCY, &c.

Where an objection is taken to a pleading, on the ground of irrelevant or redundant matter being inserted, it must be taken within the time limited by the Code for putting in an answer or a reply. Where, therefore, it appeared that the time for the plaintiff to reply had been extended beyond the twenty days, and an application was afterwards made to strike out certain passages in the answer, as being redundant and irrelevant: Held, that the application was too late. Expressions of opinion merely, and insinuations tending to throw discredit on the motives of a party, need not be replied to.

It is only material allegations, not controverted by the answer or reply, that are to be taken as

true.

THIS was a motion to strike out certain passages in the answer of the defendants as being irrelevant, redundant and immaterial.

The answer was served on the 28th August, 1849, and at the expiration of the twenty days from the day of service, the plaintiff ob

N. Y. Superior Court.-Isham v. Williamson.

tained a consent from the defendants' attorney for time to put in his reply.

The passages in the answer proposed to be striken out, were in reply to the allegations in the complaint as to the character of one of the parties referred to in the cause, and if replied to would, probably, have formed immaterial issues.

Charles T. Cromwell, in support of the motion, contended that the passages referred to in the answer were inartificially pleaded, and that the plaintiff could not, therefore, reply thereto.

Samuel Owen, contra, submitted that the plaintiff should have taken his objection to the sufficiency of the answer before he obtained an extension of time to reply; that not having done so, he was too late with his application.

MASON, J.-It was the established rule in the court of chancery, that the defendant could not except to a bill for impertinence, after he had obtained further time to answer; because, the obtaining the order was a submission to answer, and all objections to the bill were thereby waived. (1 Barb. Ch. Pr. 101.) And, for the same reason, he could not demur to the bill after he had obtained an extension of

the time to answer. There is nothing in the Code at variance with this salutary rule; on the contrary, its whole scope is to confine within proper limits objections which are dilatory in their very nature. In this case, the time for the plaintiff to reply has been several times extended by consent, without any intimation of the existence of irrelevant matter in the answer, and it is, therefore, now too late for the plaintiff to move to strike out such matter; or, as we would express it under the former practice, to except to the answer for impertinence.

The plaintiff, however, need not be embarrassed in his reply by reason of any irrelevant matter in the answer. Statements which have nothing to do with the case, and are, therefore, immaterial, expressions of opinion merely, and insinuations tending to throw discredit on the motives of the plaintiff, if found in the answer, need not be replied to. No evidence could be given to support or defeat them —and no inference, therefore, can be drawn unfavorable to the plaintiff for his omitting to notice them. It is only a material allegation, which, if not controverted by the answer or reply, is to be taken as true, ($168.) The plaintiff's motion to strike out must be denied, but without costs, as the question now presented has not, that I am aware, been decided with regard to pleadings under the Code.

The time to reply is extended for ten days from the service of the rule hereby granted.