Opinion
March Term, 1858
William C. Brown, for the appellants.
Morris Vary, for the respondents.
The question litigated at the trial was, whether a general assignment made by the defendant Orvis to the defendant Fenton was fraudulent and void as to creditors. The cause was tried at a special term of the Supreme Court, without a jury, and a case was made for appeal. The case so made, after setting out the evidence, states that "thereupon the said cause was submitted to the said justice, who afterwards filed his decision as follows." Then follows the decision, signed and filed, as the authority for the judgment, in which it is stated, as a conclusion of fact, that the assignment was made "with intent and for the purpose to hinder, delay and defraud creditors;" and, as a conclusion of law from this fact, the assignment was pronounced void. There is also printed, at the close of the appeal book, an opinion of the justice of the Supreme Court who tried the cause, in which the question is discussed, whether the assignment is void, on its face, by reason of a provision respecting the compensation of the assignee.
We have repeatedly held that we can only look into the Case, prepared according to the Code, for the facts and conclusions on which the judgment is based. The written opinion of the judge is no part of the case, and is not a proceeding upon which an appeal lies. The Case has a reference to the decision filed by the judge, which may therefore be considered as forming a part of such Case. In this finding the assignment is declared to have been made with intent to defraud creditors. That fact being found, there is no question of law for our consideration. In order to present, on appeal, the question of law discussed in the opinion before referred to, the Case should show affirmatively that there was no fraudulent intent established by evidence, dehors the assignment, thus leaving the decision to turn wholly upon the provisions which it contains on its face.
The judgment must be affirmed.
All the judges concurring,
Judgment affirmed.