Wilson v. Forsyth

16 How. Pr. 448

Opinion

Harris, Justice.

It appears from the history of the trial which has already been had in this action, that James 0. Forsyth, at the time he executed the assignment, had in his possession about the sum of $5,000 in cash, with which immediately thereafter he absconded. It was not proved, nor is it now pretended, that the assignee had any knowledge of this fact. The single question upon which this action depends is, whether the fact that the assignor at the time he executes a general assignment for the benefit of his creditors, fraudulently and without the knowledge of the assignee, withholds from the-assignee a portion of his property, and subsequently converts it to his own use, vitiates the assignment. The facts being undisputed, a question is presented for the determination of the court. There is no occasion for the intervention of a jury. It is not pretended that upon another trial, any different state of facts will be presented. In that case, there would be nothing for the jury to decide. It would be the duty of the court to direct a verdict for the plaintiff .or the defendant, according to the view it might take of the legal effect of these undisputed facts. Under these circumstances, I think the order should be va-‘ cated. It is not a proper case for granting costs upon the motion to either party.