Wolf v. Arthur

• Decision Date: 09 February 1893
• Citation: 16 S.E. 843,112 N.C. 691
• Parties: WOLF et al. v. ARTHUR.
• Court: North Carolina Supreme Court

16 S.E. 843

112 N.C. 691

WOLF et al. v. ARTHUR.

Supreme Court of North Carolina

February 9, 1893

Appeal from superior court, Swain county; BYNUM, Judge.

Motion by J. W. L. Arthur to vacate an order of arrest heard upon the submission of an issue of fraud, raised in an action by W. H. Wolf & Co. against Arthur. The motion was vacated, and plaintiff appeals. Reversed.

On an issue as to whether or not a person executed a deed in good faith, a question asked of a witness who was a party to such deed if the trade between himself and such person was a bona fide transaction is incompetent, as calling for an opinion of the witness, and not for facts.

The following issue was prepared by the court, and submitted to the jury, to wit: "Did the defendant, J. W. L. Arthur dispose of his property to Collins and Allison with an intent to defraud his creditors?" Counsel for defendant Arthur, proposed to ask the witness Collins "whether the trade between witness and Arthur was a bona fide transaction to which question the plaintiffs objected (1) because it was asking the witness to state a conclusion of law; (2) it was asking the witness to state an opinion, and not facts. Counsel for defendant proposed to ask the same question of the witness Allison, and to this question the plaintiffs interposed the same objection, and upon the same grounds both of which objections were overruled, to which the plaintiffs excepted; and the said witnesses were allowed to testify that said transaction was bona fide, and without fraud.

Fry & Newby, for appellant.

AVERY J.

No question is competent which puts the witness, in giving an answer to it, in the place of the jury, and substitutes his opinion for theirs, or offers his opinion for their adoption upon a matter involved in the issues, or upon some question of fact to be passed upon by them preliminary to a finding upon an issue. Best, Ev. § 512. The inquiry to which the attention of the jury was being directed was whether a deed was executed in good faith by Arthur, the defendant, to the witness and one Allison, or with intent to binder, delay, or defraud his creditors. As to a question of fact, the intent of Arthur was actually known only by himself, and the jury could not form an opinion as to his bona fides, except upon his direct denial or admission, or upon circumstances related by other witnesses tending to show his intent. The witness Coliins was competent to...