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Parker's Charge to Jury: Furstenheim & Wellford vs. J. Kittay, 1881

An often forgotten component of the cases heard in front of Judge Parker are the civil cases. Below is the jury charge in one such case, concerning property and debt.


Charge of Judge Parker to the Jury in the
Case of Furstenheim & Wellford vs.
J. Kittay.

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The case of Furstenheim and Wellford vs. J. Kittay, which has occupied the attention of the United States Court for the past week, was brought to a close yesterday afternoon. Judge Rose, of Little Rock, closed the argument for the plaintiffs, and the case went to the jury at 8 o'clock, who returned a verdict in favor of the plaintiffs for $8,000. Owing to the points of a legal nature involved in the consideration of the case and the array of counsel, it has aroused unusual attention among the members of the bar. It has been hotly contested from the beginning, and the arguments have been profound and replete with learning.

THE INSTRUCTIONS TO THE JURY.

The ground laid in the affidavit as a basis for the attachment against the property of the defendant in this case is, that the defendant has sold, conveyed or disposed of his property or effects, with the fraudulent intent to cheat, hinder or delay his creditors.

The defendant, by his affidavit, has denied this allegation, and thereby raised an issue, the burden of proving which is on the plaintiffs.

That the sale, conveyance or assignment attacked in this case by the plaintiffs, as having been made by the defendant with the fraudulent intent to cheat, hinder or delay creditors, is the one produced in evidence, dated November 8, 1880, and purporting on its face to be an assignment of all the defendant's property for the benefit of creditors, to N.C. Gibson, as assignee. The questions involved in the issue before you are, first, was such an assignment made; and second, the intent with which it was made; that is, whether it was made with the fraudulent intent to cheat, or to delay, or to hinder creditors. In proving this intent, the plaintiffs are not confined to the deed of assignment.

Without any facts showing the existence of fraud, the law never presumes it, but presumes good faith until the contrary is shown by evidence. The burden of proving that the deed of assignment offered in evidence was made for the purpose of hindering, or delaying, or defrauding creditors is upon the plaintiffs. To authorize a verdict sustaining the cause of attachment, the plaintiffs are required to show, to your satisfaction, by a preponderance of the evidence, that the defendant either sold, conveyed, or otherwise disposed of his property with the fraudulent intent either to cheat or to hinder or to delay his creditors. This fraudulent intent may be shown, like any other fact, either by positive proof or by circumstances of sufficient weight to create a preponderance on the side of the plaintiffs, or to establish it to our satisfaction by such preponderance of evidence. It requires no greater degree of proof to establish it, nor can it be established by any less degree than is required to prove any other fact.

In order to ascertain the existence of a fraudulent intent in this case, the jury are authorized to take into consideration any fact or circumstances offered in evidence which has a tendency to establish it. If the preponderance shows that the defendant purposely inserted, or caused to be inserted, in his deed of assignment false or fictitious debts, which he claimed that he owed to certain preferred creditors named therein, then such deed is fraudulent and void, and you must find for the attaching creditors.
If the evidence shows that the defendant concealed or withheld from his assignee such an amount of his property or effects as to show that such concealment or withholding was purposely and intentionally done, and was not a mere oversight or mistake on his part, but that the same was done that he might receive some benefit thereby, then you will find that the assignment was fraudulent and void, and you will find for the attaching creditors.

If all the debts named in the deed of assignment as being owed by the defendant to the different persons therein named as creditors, were real and actual debts for about the amounts therein named, and the defendant did not conceal or withhold any considerable part of his moneys or assets conveyed by the deed of assignment in order to prevent them from coming to the hands of his assignee, and made such deed in good faith and in order that the whole of his assets should go to his creditors, then the fact that the deed may work the ordinary delay in paying creditors incident to an assignment made in good faith does not make it a conveyance executed to hinder, delay or defraud creditors.

A debtor has a right, under the law, when he makes an assignment for the benefit of creditors, and he may assign the whole of his property for the benefit of one or any number of creditors, provided they are really and in fact creditors for about the amount named in the deed of assignment, and that such deed of assignment is made in good faith to pay them just debts owing from the assignor to them, and in this case, if all the debts named in the deed of assignment as being due from the defendant to the different professed creditors, were really and in good faith debts, and were not false or fictitious claims which the defendant caused to be inserted in the deed of assignment that he might conceal his effects from his real creditors, then he had a right, under the law, to prefer such creditors, and such circumstances would not render the assignment fraudulent and void.


As reported in the Fort Smith Weekly Herald, October 22, 1881.

Did You Know?

Trail of Tears Routes

The Choctaw, Chickasaw, Cherokee, (Muscogee) Creek and Seminole Indian tribes were forcibly moved to Indian Territory on what became known as the Trail of Tears. The Arkansas River served as a water route to Fort Smith where they received supplies before crossing the river into Indian Territory.