By Court, BATTLE, J. The recovery in the former suit upon the same covenant in which the same breaches were assigned was, we think, a bar to the present action, and his honor properly ruled out the testimony which was offered to show that full damages were not then given. The covenant was, in the particulars mentioned, one and indivisible, and upon a breach of it the plaintiffs were entitled to the whole amount of damages, present and prospective, caused by such breach. If the damages were restricted in consequence of instructions from the court, it was an error which the plaintiffs, by taking the proper steps, might have had corrected in that action. Their omission to do so cannot give them the right to harass the defendant with the expense and trouble of another suit. For the distinction between the cases where prospective damages, that is, such as have accrued since the commencement of the suit, may and where they cannot be given, see the case of Moore v. Love, 3 Jones L. 215, in which the subject is fully discussed. Judgment affirmed.

FORMER RECOVERY IN COURT HAVING JURISDICTION CONCLUDES SAME PARTIES and their privies from another trial of the same cause of action or ground of defense: Gray v. Gillilan, 60 Am. Dec. 761; Doty v. Brown, 53 Id. 350; Coffin v. Knott, 52 Id. 537; Agnew v. McElroy, 48 Id. 772; Cutler v. Cox, 18 Id. 152, and cases collected in notes to these cases.

JESSUP v. JOHNSTON.

[3 JONES'S LAW, 335.]

WHAT CONSTITUTES FRAUD IS QUESTION of Law.

CONVEYANCE BY FATHER, OVERWHELMED WITH DEBTS, TO SON, OF NEGROES AND PROPERTY WORTH LARGE SUM, in consideration that son will discharge debts amounting to two thirds of that sum only, raises a presumption of fraud which, if not rebutted, avoids the conveyance as to creditors, and it is the duty of the court to so instruct the jury.

TROVER to recover the value of a slave conveyed by deed from father to son. The substance of the charge of the court, upon which the jury returned a verdict for defendant, is sufficiently stated in the opinion. Defendant had judgment. Plaintiff appealed.

Shepherd and Strange, for the plaintiff.

William McL. McKay, for the defendant.

By Court, PEARSON, J. "What constitutes fraud is a question of law. In some cases the fraud is itself evident when it is the province of the court so to adjudge, and the jury has nothing to do with it. In other cases it depends upon a variety of circumstances arising from the motive and intent. Then it must be left as an open question of fact to the jury, with instructions as to what in law constitutes fraud. And in other cases there is a presumption of fraud which may be rebutted. Then if there is any evidence tending to rebut it, that must be submitted to the jury. But if there is no such evidence, it is the duty of the court so to adjudge, and to act upon the presumption:" Hardy v. Simpson, 13 Ired. L. 132.

In our case, the substance of the charge was, that the evidence raised a presumption of fraud; that there was no evidence to rebut the presumption; and it was the duty of the jury to find for the defendant, if they believed the evidence.

The fact that a father finding himself overwhelmed with debts couveys to his son negroes and other property worth six thousand dollars, in consideration that the son will undertake to pay debts amounting to four thousand dollars only, of itself raised a presumption of fraud; for it is neither more nor less than a fraudulent gift by an insolvent father to his son of two thousand dollars, at the expense of his creditors; to say nothing of the other facts, that the son was only twenty one or two years of age; had no property of his own; the debts were reduced to two thousand seven hundred dollars before the name of the son was substituted for that of the father on the notes in bank; and that the negro in controversy, and other property which had been conveyed by the father to the son, was still in hand after the bank debt was discharged. As there was no evidence to rebut this presumption, it was the duty of the judge to instruct the jury that if they believed the evidence, the conveyance was fraudulent and void as against creditors. So in McCorkle v. Hammond, 2 Jones L. 444, the fact that a father being about to fail conveyed a stock of goods to a son who was under age, in consideration of his son's notes for a sum which was a fair price for the goods, was held to amount to fraud; the fact that the father had included the son's notes in an assignment which he soon thereafter executed in favor of certain of his creditors, being no evidence to rebut this presumption, inasmuch as the son could not be compelled, either in law or equity, to pay the notes.

These cases all range themselves under the same head, that is, where there is a presumption of fraud and no evidence to re

but it. Lee v. Flannagan, 7 Ired. L. 471; Young v. Booe, 11 Id. 347, are instances of another class, where the presumption of fraud is rebutted by evidence explaining the circumstances, and showing that there was no fraud.

The second charge of his honor superseded what he had said in his former charge, by taking higher ground against the defendant; and as we sustain him in that, of course it is not necessary to notice his former charge; and the fact that it was liable to exception as being too vague, and as assuming that the son was under the age of twenty-one, which was contrary to the evidence, can make no sort of difference.

Judgment affirmed.

FRAUD IS QUESTION OF LAW, ESPECIALLY WHEN THERE IS NO DISPUTE ABOUT FACTS: Sturtevant v. Ballard, 6 Am. Dec. 281. Fraud is question of law when facts are ascertained: Pettibone v. Stevens, 38 Id. 57, and note 61, collecting cases; but see Dodd v. McCraw, 46 Id. 301, where it is held that fraud is a mixed question of law and fact to be determined by the jury.

CONVEYANCE BY FATHER ON VERGE OF INSOLVENCY, TO HIS SONS, in consideration of an agreement to pay off certain judgments against him, is fraudulent as to creditors: Johnston v. Harvy, 21 Am. Dec. 426, and cases in note 432; to same effect, see Hanson v. Buckner's Ex'r, 29 Id. 401, note 407; and a legal presumption arises upon a voluntary conveyance by one at the time indebted that it is in fraud of creditors: Hutchinson v. Kelly, 39 Id. 252, and cases in note 263; Briscoe v. Bronaugh, 46 Id. 108; and that such conveyance is void: Whittlesey v. McMahon, 26 Id. 382, and cases in note 385; a reservation in the conveyance by the debtor of any portion of his property for the benefit of himself or family renders the assignment void as to creditors: McClurg v. Lecky, 23 Id. 64, and citations in note 71; Grover v. Wakeman, 25 I. 624; Goddard v. Hapgoed, 60 Id. 272, note 276.

CONVEYANCES WHICH BEAR SUCH RATIO TO INDEBTEDNESS OF GRANTOR as to tend directly to defeat creditors' claims is fraudulent as to them unless founded upon a sufficient consideration: Clark v. Depew, 64 Am. Dec. 717, and note 720.

THE PRINCIPAL CASE IS CITED in Grimsley v. Hooker, 3 Jones Eq. 7, S. C., ante, p. 227, to the point that the insolvency of a debtor and his retention for a considerable time of goods conveyed by deed of trust is a badge of fraud which, if unexplained, makes the deed void as to creditors; the main case was cited and its principles indorsed in Redding v. Allen, Id. 369; it was again cited to the last section of syllabus, supra, in Winchester v. Reid, 8 Jones L. 350; and again in McCauless v. Flinchum, 89 N. C. 375, to the point that after proper instructions have been given the jury as to what in law constitutes fraud, they may, in such cases as the main case and the one under consideration at that time, be left to determine whether or not a deed is fraudulent as to creditors.

BAILEY V. BRYAN

[3 JONES'S LAW, 357.]

RECORDARI MAY BE USED AS WRIT OF FALSE JUDGMENT. STATUTE OF NORTH CAROLINA RELATING TO FENCES MUST BE STRICTLY CONSTRUED, such statute conferring special jurisdiction upon justice of the peace and two freeholders, who are to view the fences of any person against whom complaint is made, and in a proper case estimate damages done to the stock of the party injured; and the judgment of the justice is erroneous when he and the freeholders assess damages for which no complaint is made.

PETITION for a writ of recordari, supersedeas, and restitution. Petitioner was summoned to appear before a magistrate to answer the defendant upon a warrant that “ a certain cattle, the property of the complainant, was unreasonably abused, and greatly injured, and killed one oxen, and that the same was done by the said Annis Bailey and others, or by their connivance and procurement, upon the premises of Annis Bailey; field not inclosed with any sufficient and lawful fence." The same day that the warrant issued the freeholders viewed the property and assessed the damages at fifty-six dollars. They also found that plaintiff "did unreasonably abuse and greatly injure a certain steer, cow, and calf, and killed also a valuable steer, the property," etc. Upon this report judgment was given against the plaintiff in this suit for the amount assessed and costs of suit; thereupon execution issued and was levied upon the personal property of plaintiff, the same sold, and the proceeds applied in satisfaction of the judgment. The petition alleges that at the time of the rendition of the judgment plaintiff applied for an appeal, which was denied by the magistrate, on the ground "that he did not have his forms with him." Upon the return of the writ and record in the court below, the court was of opinion that the judgment of the magistrate was erroneous, and he reversed it and ordered restitution to the plaintiff of the money collected under it. Defendant appealed.

Rodman, for the plaintiff.

J. B. Batchelor, attorney general, for the defendant.

By Court, BATTLE, J. The writ of recordari is used here, as it well may be, as a writ of false judgment: Parker v. Gilreath, 6 Ired. L. 221; Kearney v. Jeffreys, 8 Id. 96.

Among the errors assigned by the plaintiff, there is one so obviously fatal to the judgment given by the justice as to render unnecessary the notice of any other. The act under which

the proceedings were had confers a special jurisdiction upon a justice of the peace and two freeholders, who are to view the fences of the person against whom the complaint is made, and in a proper case to estimate the damage done to the stock of the party injured: See R. S., c. 48, secs. 2, 3; Rev. Code, c. 48, secs. 2, 3. This authority, being under a proceeding so contrary to the proceedings of the common law, must be strictly pursued, and the report of the justice and freeholders must be certified under their hands as the foundation of the judgment to be rendered thereon by the justice. This report ought to embrace only the damages for the particular injury complained of, and the judgment should be for such damages alone.

Here the complaint set forth in the warrant of the justice was for abusing and killing a certain cattle" and "one oxen," whereupon the justice and freeholders ascertained and reported that the plaintiff had been damaged by the defendant, who "did unreasonably abuse and greatly injure a certain steer, cow, and calf, and killed also a valuable steer," the property of the plaintiff.

The whole amount of the damages is stated to be fifty-six dollars, and the report bears date the nineteenth of November, 1855. Afterwards, on the thirtieth day of the same month, the justice rendered a judgment for that amount, in which no reference is made to the report, but it is expressed to be for that "the defendant did make default, as set forth in the plaintiff's complaint."

It is manifest, in this view of the proceedings, that the justice and freeholders transcended their power in undertaking to assess damages for injuries of which there was no complaint made, and therefore the judgment given by the justice for the amount of such assessment, while it professes to be for "the default as set forth in the plaintiff's complaint," must be erroneous. For this error in the proceedings, without noticing any other, the judgment of the superior court reversing the judgment given by the justice is affirmed.

Judgment affirmed.

RECORDARI FACIAS LOQUELAM.-This ancient writ, now superseded in English practice by the writ of certiorari, was in the early history of the law brought into requisition for the purpose of removing the plaint in an action of replevin, or other action of like nature, from the county court into one of the superior courts of common law. The writ issued out of chancery and was directed to the sheriff of the county wherein the cause was pending, commanding him in his full court to cause the plaint to be there recorded, and to have the record before the justices at Westminster on a certain day: Fitz N.