Knibb's v. Dixon's , 1 Rand. 249 ( 1822 )

December 12.

Judge Brooke,

delivered the opinion of the court.^*

The court excluding the evidence in relation to the supposed fraud of the appellant, it not being put in issue by any thing in the pleadings, is of opinion, that the conflicting evidence touching the question, whether the bill of sale from Knibb to Dixon, was intended by the parties as a security to Dixon, for payments to be made by him in behalf of Knibb, or as an absolute and unconditional transfer of the property, ought to have been submitted . , . 1 . ° , to a jury, by an issue to be made up between the parties; on the trial of which, the weight of that evidence would be more correctly ascertained than by the chancellor. The decree dismissing the bill, is therefore reversed, and the cause remanded to be further proceeded in, according to the principles of this decree.

* Judge Green did not sit, the case haying been argued before his appointment.