Hardaway v. Manson

2 Va. 230

Opinion

“ 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,

(1) and that that possession was such that counsel 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 com* pelled by a demurrer to evidence to decide upon it.”

Judgment reversed, and cause remanded, “ with direction that the court, upon the future trial, shall for. bear 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. Dencale.