The record-union., 1891-01-21

and from the cases above cited in the import
ant particular that the evidence of fraud was
objected to at the trial Though the report does
not show lt). By reason of this fact, probably,
counsel for defendant did not make the point
tilat there had been any waiver of defects i'll
his plea OF fraud, and did not cite any of the
cases holding the doctrine above quoted from
King VS.. Davis. His whole contention was
that his plea was sufficient, and that was the
only question which the department decided
Iherefore, the rule of King VS.. Davis is still
unquestionably the law of this State, as il un-
| queStionably ought to be-
But the respondent contends that it does not
apply to this case, because:
| First-The answer was in such form that he
coula not nave demurred to it on any ground
allowed by the statute; and, therefore, he
waived nothing by failure to demur.
Second-The record does not show that he
failed, to object to evidence of fraud.
Ihlrd1Ihe defect in the plea was not cured
| by verdict as in King VS.. Davis and other
cases in which the verdict was in favor OF, and
| not against, the plea as it is in this case.
says the plea of fraud was not separately
stated, but was coupled with denial of plain
tiff's ownership, which made the answer good
against the general demurrer to the whole an
swer, and a demurrer to the plea of fraud inn
practicable. We think, however that the plea
OF fraud Is separately stated in the answer,
ana 3l0i might nave been separately demurred TO-
But If 1t was not separately stated it must be
regarded qualifying the denial in general
terms OF plaintiffs ownership, and showing
that such denial meant nothing more than
that the plaintiff was not the owner of the
goods, because the transfer from L. NJ. Suxe-
forth was void as 10 creditors by reason of
raud. In which case-assuming THAI the
fraud was insufiiciently pleaded-the whole
answer was demurrable on the ground that it
did not state facts sufficient to constitute de-
fense or that it was ambiguous. uncertain and
unintelligibie. Code Civil Procedure. Sec
tiOn 444.l
As to the second point 1t is true, as con-
tended by respondent that there is no express
statement IN the record TO the effect that he
| failed to object TO the evidence of fraud but
| we do not deem such an express statement
necessary, if the fact can be clearly inferred
| from the statement as we think ii can. The
! defendant Ill moving for q new trial specified
IN ms statement the particular grounds upon
which he relied, and every specification of
! fact or law showed that he relied upon having
proved every fact necessary TO establish n
| fraudulent sale He also set out the evidence
| 10 sustain his specifications, all appearing to
/ have been received without any objection
| upon the ground that fraud had not been
! pleaded. II any such objection had been
amend the proposed statement SO as to show
| II, ana undoubtedly he would have done So
| The fact, therefore, that no objection appears
! to have been made is proof that there was
| none. To hold otherwise would destroy all
the advantage of the doctrine of waiver; for in
all cases where the party had not been warned
lection to evidence, he would be wholly un-
aware of the necessity of making it appear by
| his statement or bill of exceptions that he had
not been warned, and the court would merely
have saved him from one snage in order TO in
| yolye him in another.
| as to the third ground for denying the de-
fendant the benefit Of the doctrine of waiver.
we blink that the fact that he is appealing is
rather in his favor than otherwise. In King
VS.. Davis, rs in all the cases in which the
plaintiff was appealing, the only consequence
OF q reversal of the judgment on account of
! the lnsuEiciency of the plea would have been
| a re-trial of the cause upon amended plead
| 1ngs, but 20 affirm the Judgment on that
| ground when the DEFENDANTS appealing would
! leave him without remedy or hope of redress
/ Therefore, when he is appealing in a meritori-
| toTious case il which he might prevail on n
| new trial under correct rulings. it would be
! even more uni ust to allow plaintiff to object
TO his plea in this court for the first time than
| it would have been to allow the objection in
| the cases cited.
For these reasons We conclude that the de-
fendant is entitled to have his appeal consid-
cred on its merits.
His first proposition Is that the evidence
| showed without substantial conflict that the
transfer of the property in controversy by l..
| N. Sukeforth to plaintiff fraudulent and
void as to creditors, and that the Superior
Court erred i'll not granting new trial on that
! ground.
It is certain that many facts were established
without any conflict in the evidence from
which the jury would have been justified in in-
| ferring a fraudulent intent upon the part OF
plaintiff and his brother in making and accent.
ing the transfer. but we are not willing to say
| that such inference was absolutely necessary
| Its, however, certain that the case was such
| as entitled the defendant to have the issue OF
fraud submitted to the jury upon instructions
fully and fairly stating the law applicable
| thereto.
This we think was not done-the court hay-
! ing given instructions that should have been
| refused or qualified, and refused instructions
| that should have been given. But here again
! we are met with the technical objection that
| the errors of the court in giving and refusing
instructions cannot be reviewed because they
were not excepted TO in time or at all.
The objection is based upon the following
statement in the record:
AFTER the officer had been sworn to take
charge of the jury, and us the jurors were
| retiring. but before they were out of the court
| room. counsel for the defendant stepped up to
the side OF the bench and said to the court: Il
| would like an exception entered to all the in
structions given by the court, Mt the request of
I the plaintiff, TO all the instructions asked by
| the defendant, and refused by the court
and to all instructions given by the court on
| its own notion
..The court said: Have any exceptions en-
1 tered your desire.
s'Counsel said: Shall have the clerk enter
them?'
THE court replied: IF you choose to do so.'
\ Neither the minutes of the court kept by
! the clerk, nor the reporters notes OF the trial
show that any exception to instructions was
! reserved or entered"
This shows very clearly that sufficient ex-
| ception was taken to the written requests to
| charge given and refused. (McCreery vs. Fyerd-
429), though it probably insufficient as
| an exception TO the oral charge of the court.
tRider vs.. Edgar, 5l Cal. 130, and cases there
citedl. We will, therefore, consider only the
exceptions written to the charges.
II was error TO give plaintiffs instruction