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Carnes agt. Platt.

intent to pass the title to Anihony; whether such deed was then accepted by Wetmore, he being anthorized by Anthony to accept it for him ; and whether there was any such acceptance by Anthony in September as would relate back to the day of the leaving the deed with Wetmore, and cut off intervening rights ?

Upon these several questions the court examined all the evidence, and decided that they must be answered in the negative.

There was nothing, therefore, on the second trial for the jury to pass upon, so far as related to the delivery of the deed to the defendant, unless as is now claimed by the appellant's counsel, the question of delivery was so entirely a question of fact, that it could not correctly be taken from the jury.

The office of a jury is to find facts upon conflicting evidence. If there is no dispute and the proof is clear, then it is the duty of the court to apply the law and pronounce judgment. And even where the evidence is not wholly on one side, yet if a verdict would be set aside as being against the clear weight of the evidence, the court should direct the verdict.

In this case, there was not any dispute or conflict in the evidence establishing the facts constituting what was claimed to be a delivery of the deed to Anthony; and the court had the right, and it was its dnty, to say which of the parties, upon such undisputed facts, was entitled to a verdict from the jury. And the learned justice following, as he was bound to do, the decision of the general term, held the facts insufficient to constitute a legal delivery.

I do not find anything in this case which takes it out of the ordinary rule regulating trials by jury; and the only distinction which was attempted to be taken, was that the alleged delivery and acceptance of the deed, was a question

the jury. But I cannot admit there is any such distinction.

Carnes agt. Platt.

If the facts and circumstances are such as to repel a presumption of an intention to deliver and accept, and the only conclusion which could legitimately be reached is, that there could not have been an intention to deliver or accept, then it cannot be said there was any conflict, or that the jury should pass upon the question.

Under the statue relating to fraudulent conveyances, where fraud is made a question of "fact,it has been decided ( Griswold agt. Sheldon, 4 N. Y. 581 ) that it was the duty of the court to non-suit, where the conveyance, under which the plaintiff claimed, appeared upon its face to be fraudulent. To the same effect is Edgell agt. Hart, (9 N. Y. 213,) in which a chattel mortgage was attacked on the ground of fraud, and it was there said, if the facts are undisputed the court should direct the judgment; and a nonsuit was sustained. And in Butherson agt. Jones (II., & D., R. Lalor 171), it is said, that although the inference is one to be drawn by the jury; yet where the weight of the proof is so decisive, that if the jury had found against it a new trial would be granted, it need not be left to them. That case involved a question of delivery of a deed.

None of the cases cited by the appellants's counsel reach the point I am considering; nor am I aware of any case or principle which renders a question of intent so purely and exclusively a question for the jury, that the court cannot take it from them.

In this case, thererore, as this court has held upon the same facts that there had not been a delivery of the deed to Anthony prior to the recovery of the judgment against Houghton, it wonld have been error to have left the question of delivery to the jury.

The appellant's counsel requested the judge below to submit to the jury whether the assignment of the judg. ment was procured from the Merchants' Bank for the benefit and in behalf of Houghton, or in collusion with him, for purpose of enforcing it as a lien upon the premises.

Carnes agt. Platt.

There was no attack made upon the judgment. That must have been conceded to have been valid; and I do not, therefore, see in what manner the allegation of obtaining the assignment of a good jndgment for a small or inadequate consideration, can be stronger now than it was then.

I have not found any evidence showing that the purchase of the judgment was made for Houghton, or that he had any beneficial interest in the purchase. Mrs. Carnes paid the consideration, whatever it was, and however much her husband may have desired to befriend or assist Houghton, there was nothing shown in the transaction of any collusions or fraud between them, which could in any way effect or impair the rights of the assignee. If the bank was imposed upon or overreached, it alone can complain. It would not, most certainly, invalidate a title obtained under the assigned judgment; nor would it authorise a preference to be given to either subsequent grantees or creditors. At any rate, the evidence fell much short of showing that the judgment was assigne} only nominally to Mrs. Carnes, and really to Houghton, so as to authorise à finding that the latter was the real owner of the judgment. Anything short of such evidence would not support the allegations in the answer to which the proof was directed. .

I have noticed all the requests to submit qnestions to the jury, and no claim can now be made that there were others which ought to have been submitted.

I am satisfied there was no error committed at the trial, and that we should affirm the judgment.

Houghton agt. Kenyon.

HERKIMER COUNTY COURT.

John M. HOUGHTON, respondent agt. DELOS M. KENYON,

appellant.

It was the intention of the law, allowing appeals from justice's courts to the county

court, “when the amount of the clain or claims for wbich judgment was demanded by either party in his pleadings in the court below shall exceed fifty dollars,” not to allow either party a new trial in the county court, unless judgment

for a sum exceeding fifty dollars is demanded, in a proper case, in good faith. Where an action is brought in a justice's court, claiming less than $50 damages, the

defendant bas a right to draw his answer in such a manner as to have a new trial in the county court, in the event of his being unsuccessful in the court below, provided, his defenses are not sham or false, and are pleaded in good faith, and are

proper defenses to the cause of action set out in the complaint. Where the plaintiff' succeeds before the justice on the trial of an issue of general

denial in recovering judgment for the amount of his claim-being less than $50: And the defendant appeals for a new trial in the county court, upou other defenses interposed, claiming a judgment of over $50, and such defenses are clearly sham and false, they will be stricken out by the county court, on motion, and the appeal ordered to be heard by argument, upon the justice's return.

June Term, 1869.

Houghton brought an action before a justice of the peace, in trover, for the conversion of a case of boots, alleged to have been delivered to the defendant through a mistake, and which the defendant converted to his own use, and demanded judgment in his complaint for $33. The defendant in his answer, set up three defenses, as follows:

First-A general denial. Second—An offset of an account against the plaintiff claiming a balance due him of $67, for which he demanded judgment; and Third—That in consequence of the negligence and carelessness of the plaintiff in effecting the alleged delivery of said case of boots the defendant sustained $100 damages, and demanded judgment for $167, and costs. On the trial, before the justice,

Houghton agt. Kenaon.

the defendant offered no evidence under the second and third defenses in his answer.

The plaintiff had a verdict, before the justice, for $33. The defendant appealed to this court and demanded a new trial.

The plaintiff' now makes a motion to strike out the second and third defenses in the answer, as sham and false; each party submitting affidavits in support of their respective allegations.

J. A. STEELE, for the motion.
Thos. RICHARDSON & J. J. DUDDLESTON, opposed.

Amos H. PRESCOTT, C. J.,—It is conceded by the counsel that this motion is properly made at this time, and that this court has full authority and power, upon this motion, to determine the questions involved upon the merits. From the return of the justice, it appears that, on the trial in the court below, the case was closely contested, and by able counsel, the main question lititgated pefore the justice, was, as to whether the defendant did actually recieve the case of boots,

The defendant offered no evidence under the second and third defenses pleaded in his answer. This bears somewhat upon the question of good faith, though it is not very material.

The defendant's attorney, before the justice and in this court, swears, that, at the time of the joining of the issue, he told the plaintiff's attorney, that the defendant would claim a new trial in the county court. It seems then quite clear, that the intention and the object of the defendant was, to draw his answer in such a manner as to have a new trial in the county court, in the event of his being unsuccessful in the court below. This he had a right to do, provided bis defenses were not shamor false, and were pleaded in good faith ; and provided also that the defenses

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