There was no error of law committed upon the trial. It does not follow that, because one party makes a charge of fraud against another, there must be a question for a jury. Fraud is a question of fact; but to go before the jury there must be legal evidence, and whether such evidence exists, and, if it does, whether of sufficient weight to sustain a verdict, is a question for the court. The court below propeily refused to submit the question to the jury. There is no foundation for the claim that the instrument was a mortgage. The goods were sold to pay a precedent debt, and it was not difficult for counsel, but putting the words into the mouth of the witness, to get him to say he received them as “security for á debt.” There was no possibility of a surplus. The transaction was a sale, and not a mortgage.
Judgment affirmed, with costs.