The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1866-12-13
DECISIONS OF TIE HIGH CUUR1
or
ERRORS AND APPEALS.
APRIL TERM. 1865

George II Barney }

plaintiff ia error against the defendant, on
/ a suggestion under oath, that the defendant
WAS Indebted 10 him in q specified sum OF
money, and that he had assigned or dis-
posed Of or was about to assign or dispose
Of, his property or rights in action or some
| part thereof, with intent to deiraud his cred
| itOrs, or to give an unfair preference to some
Of them, or that he had converted, or was
about Ia convert, his property into money
or evidences ofdebt, with intent to place Il
beyond the reach OF his creditors" The de-
| PENDANT fled his plea in abatement, travers-
| ing the several ayerments Of this AFFIDAVIT ;
aud upon that issue, the verdict was for the
defendant The plantf thcreupon moved
| for new trial on grounds stated, which will
| be hereafter noticed that motion was over
ruled, and thereupon the plaintiff took his
! bill Of exceptions, and brings the case here
The grounds for a motion for q new trial
are LIST. Because the verdict was contrary
| to law and evidence. I'd. Because the YER
dict assessing damages against the plaintiff
was contrary TO law and evidence and I'll.
Because the Court allowed improper ey-
idence to go to the iury-that the property
levied on was the property Of Anne g. Shir-
ling, and not of the defendant.
The first error assigned is the admission of
the evidence offered by the defendant to
show that the lands attached were the
property of his wife
On the trial, the defendant offered in ey-
idcnce deed for the land attached, execu-
ted by one COwdcn to Anne G.. Stirling
The plaintiff objected to its Introduction,
and the objection was overruled. 1t does
not appear by the record, nor is it now
stated, on what ground that objection was
based and We can only regard the deed
with reference to its relevancy and compe-
teDcy as evidence.
We consider it competent under the issue
and proper II be taken into view by the
jury, upon the question of the alleged intel@
Of the defendant to dispose of his property,
including the lands embraced in this deed,
in fraud of his creditors. II tended to show,
in the first place. that the lands were the
property of his wife (; and hence his effort to
dispose of them about time the at
tachment was issued, was not for the pur-
pose of dsposing of has property to deiIaud
his creditors If the jury believed the convey
ance to his wife to be bona fdeand valid, and
not made with intent to deiraud his creditors,
or to place the lands beyond their reach by
having them conveyed to his wife, then it is
clear that the evidence was directly relevant
to the issue, whether he was about to dispose
of his property with intent to defraud his
creditors. But the evidence was likewise
competent to be considered by them with
reference to the validity of the deed, and it J
was for them to determine whether the con-
ycyancc to her was, or was not, made with N
fraudulent intent towards his creditors. InN
the next place, the evidence was proper tn
be taken into consideration, as tending t.
show that the defendant was not attpmptinn
to dispose of his property in fraud of Lis
creditors, because the lands were conveyedW
to his wife, and that was to some degree an
impeachment to their being subjected to the
payment of his debts and reason why he
should not convey them to de'raud his credi- |
OrS. In this view, the evidence was proper |
to he considered by the Jury, wlN,fmight |
give i such weight as they they Thought
proper.
The second error assigned is that The court
gave the first, third, fifth and sixth instrna. |
tons aslSod by the defendant
1t is to be observed that no objection was |
made on the trial, to the granting of these
instructions, nor was any exception taken |
on that ground Nor was it alleged, as
ground for the motion for u new trial, that |
these instructions, now alleged to be erro-
ncous, were gNop. The case is brought here
for review, solely upon the ground that the
court erred in everything the motion for
new trial; and the question for our deter
mnation is, whether the court erred in dis
allowing that motion on any of the grounds
on which it was made. 1t is clearly not |
proper for us to take into consideration any !
other objections to the proceeding, trial and
verdict than those which tho plaintiff has
stated in his motion,
This appears to be very clear on general
aud there is nothing in our laws
in conflict with it,
The statute, Rev Code, p. 50i, art 16l re-
quircs that all instructions given by the
court in the trial of any cause, civil or Grim
inal, shall be in writing, and that all instruc-
tons asked and given, or refused, shall be
marked by the clerk .s given or refused, and
shall be n part of the record, on appeal on
writ of cuor without u bill of exceptions
This simply makes the instructions, given
and refused, part of the record, without a
bill Of exceptions, which was necessary to
that end.
Art, 1862 gives to any party aggrieyod by
any charge or decision of any circuit court,
the right to tender n bill of exceptions, sta
ting the mattels of law wherein the court
is supposed to err, (aud of course so much
of the evidence touching the same as is
to present the questions of law
and the judge is bound to sign the same.
and said bill of exceptions is made a part of
the record
This gives the right of bill of exceptions
tn the ruliugSOf the court, penGtug the trial
and before verdict, in order that the iudg-
mcnt, so far as it is affected by such rulings.
may be reviewed on appeal or writ of error
in this court and this was the right aud
the course of procedure prevailing under the
aw Of England, in order to the correction of
errors Of inferior courts.
Ant. lG6 OF the same statute gives the
further right that when a motion for a
new tTi3l shall be granted or refused. either
party may except to the decision of the court,
aud may ratlace 20 irriiiRg the loa.OR offered for
,did Eclr iriGl, together with the substance Of
the evidence In the case, aud also the decis-
on Of The court on said motion; and il shall
be the duty of the Judge to allow and sign
he same; and Such bill OF exceptions shall |
be part of the record in the cause. And il
hall be lawful foI the appellant or plaintiff 1
IA error in such eases 20 assign for error /
hat the Judge in the court below improper
v granted or refused new trial therein,
ind the High Court Of Errors and Appeals
hall have power 10 grant new trials, OF TO
orrect any error OF the Circuit Court in
granting orrciusing the same"
II is manifest that these provisions Of law I
we're intended 70 apply to distinct states of
asses in which bills OF exceptions were re-
ocuiztd or Authorized that art. lG2 applies
q bills Of exceptions taken and signed ,lend- ,
~ the trial and before verdict: and that
ut. 100 applies 10 exceptions taken to the ,
ction Of the court ON motions Tor new [
rails Il Is equally clear that one or both {
4 those remedies may be rcsortcd to in ole ,
MI the same ease, but that each must stand Z
q its own merits. !
The exceptions taken under the former are I