H. Baylies, for plaintiffs.
The intent is a conclusion of law. Bump, Fraud. Conv. (2d Ed.) 266; Marden v. Babcock, 2 Metc. 99; 1 Story, Eq. Jur. §§ 359, 361, 363; Norton v. Norton, 5 Cush. 524, 528, 529; Parkman v. Welch, 19 Pick. 231, 236. The province of the jury, to whom the issue is submitted whether a voluntary conveyance is fraudulent as against existing creditors, is to ascertain the facts and circumstances attending such conveyance; and then the law, in view of the facts and circumstances, determines the intent and the character of the conveyance. It is not sufficient in such a case to instruct the jury, as was done in this case, “as to the legal meaning of the word fraud,' and the distinctions which exist [in meaning] between what the law terms fraud' and the common understanding of the word in morals." Norton v. Norton, ubi supra; Bump, Fraud. Conv. 26; Gunn v. Butler, 18 Pick. 248, 251, 252; Winchester v. Charter, 12 Allen, 609. 13 Eliz. c. 5, is common law in this commonwealth. It would seem that the duty of the jury to find the facts, and the duty of the court to declare the intent, are distinct duties. 2 Kent, Comm. (12th Ed.) 442, note. The decisions are "vacillating and contradictory” upon this whole matter, and therefore could not, if cited, control or materially aid the opinion of this court. The return to "sound, wholesome, and stern rules of law" would establish, upon the firm basis of principle, rather than upon the uncertain and shifting sand of precedent, the distinctive rights of debtor and creditor, and the respective functions of judge and jury.
I. J. Thomas, for defendants.
The finding is decisive of the facts, and it is well warranted by the evidence. "Whether a voluntary conveyance is fraudulent in any given case is a question of fact for the jury, to be determined in view of all the circumstances." Winchester v. Charter, 102 Mass. 272. "Whatever may be the law in regard to voluntary conveyances to others, a conveyance made on the meritorious consideration of blood or affection to a child, or as a settlement to a wife, is not per se fraudulent and void as to existing creditors. Whether it is so depends upon the circumstances of the case, and the actual or presumed intent of the grantor." FIELD, J., in Draper v. Buggee, 133 Mass. 258, 262.
MORTON, C. J. The object of this suit is to reach and apply, in payment of the plaintiff's debt, certain real estate conveyed by his debtor, one Holbrook, to the defendant Russ. The conveyance was a voluntary one made by said Holbrook for the benefit of his children to the defendant, as trustee, and the plaintiff was a pre-existing creditor. The court gave instructions to the jury, as to the legal meaning of fraud, which would invalidate such a conveyance, which were not excepted to and are presumed to be appropriate. The plaintiff requested the court to rule that "fraud, in a voluntary conveyance, such as this is shown to be, so far as concerns existing debts, is an inference of law." The refusal to give this ruling presents the only question before us. There is some confusion and contradiction in the adjudged cases as to the effect of a voluntary conveyance by a debtor upon the rights of his creditors, but the law is well settled in this commonwealth that a conveyance made on the meritorious consideration of blood or affection to a child, or as a settlement to a wife, is not, as matter of law, fraudulent and void as to existing creditors. Whether it is so or not depends upon all the circumstances of the transaction. If made when a person is deeply indebted it furnishes prima facie evidence of fraud; but this may be rebutted or controlled, and the question of fraud is not one of law, but of fact for the jury. Lerow v. Wilmarth, 9 Allen, 382; Winchester v. Charter, 12 Allen, 609; Draper v. Buggee, 133 Mass. 258. The ruling requested was therefore properly refused. Exceptions overruled.
NOTE. A star (*) indicates that the case referred to is annotated.
Abatement.
Of nuisance, see Nuisance, 5.
ACCORD AND SATISFAC- TION.
See, also, Release and Discharge. What constitutes satisfaction.
Plaintiff had a claim against defendant for one-third of the net profits of a joint enterprise, and sent a letter requesting de- fendant to render an account, and the lat- ter, in reply, sent a letter inclosing an ac- count in which he credited plaintiff with one-third of the profits and charged him with a certain amount for defendant's serv- ices, and also inclosing a check for the balance of the account thus stated. Plain- tiff credited the check to defendant on ac- count, and demanded payment of the sum charged by defendant for services, and, up- on the latter refusing to pay the same, plaintiff at once brought suit to recover it. Held, that plaintiff could recover the bal: ance due him, the acceptance of the check not amounting to a compromise or an ac- cord and satisfaction.-Tompkins v. Hill, (Mass.) 177.
See Executors and Administrators, 7-9; Guardian and Ward, 2.
ACCOUNT STATED.
Pleading and proof.
I. APPELLATE JURISDICTION. II. REQUISITES.
Plaintiff sued on account stated. De- fendant pleaded general denial, and testi- fied that, at request of plaintiff's husband, he had opened accounts in the names of her two sons and herself, but all were really one account with her husband. Held III. PRACTICE. that, under the pleadings, he could intro. IV. REVIEW. duce any testimony tending to establish these facts.-Field v. Knapp, (N. Y.) 829.
See Costs; Damages; Limitation of Actions; Parties; Pleading; Practice in Civil Cases; Venue in Civil Cases.
VI. LIABILITY ON APPEAL-BOND.
Action on appeal-bond, recoupment, see Set-Off and Counter-Claim.
Bill of exceptions, see Exceptions, Bill of. From tax assessment, see Taxation, 4. In criminal cases, see Criminal Law, 14-16. (945)
I. APPELLATE Jurisdiction.
Appealable orders.
1. A proceeding under Rev. St. Ind. § 4030, providing that, on filing in the circuit court clerk's office the transcript of a jus tice's judgment against a railroad company for injury to stock, the judgment creditor shall be entitled, on motion, to the process of that court, is a new suit in that court, and the decision therein is a final order from which an appeal will lie to the su- preme court without regard to amount. Chicago & A. Ry. Co. v. Summers, (Ind.)
Amount in controversy.
2. Where the decree of the circuit court disposed of the whole of a fund, and the appeal was from the disposition of a part, less in amount than required to give juris- diction to the appellate court, held, that the whole amount of the fund should be con- sidered in determining the jurisdiction.- Longwith v. Riggs, (III.) 840. Waiver.
3. When a party against whom judgment has been given, voluntarily pays the money to the judgment creditor, and causes the judgment to be satisfied of record, he is not prevented from appealing, unless he has agreed not to do so, or the payment was by way of compromise.—Hayes v. Nourse, (N. Y.) 508.
Appeals to general term.
4. An action to redeem from a deed ab-
solute in form, alleged to be a mortgage, does not involve the title to the property so as to justify an appeal directly to the supreme court of Illinois instead of to the appellate court.-Lynch v. Jackson, (Ill.)
Actions relating to decedents' es- tates.
6. An administrator, on the death of the appellee, was substituted pending the sp- peal, which resulted in the cause being re- manded for a new trial, and from the judg ment rendered thereon the administrator appealed. Held, such judgment not grow ing out of a matter connected with a de- cedent's estate, it was not necessary that the appeal should be taken within the time, nor in the manner, prescribed in Rev. St. Ind. 1881, §§ 2454-2457, relating to appeals in matters connected with decedents es- Acts 1885, p tates, as amended in 1885. 194.-May v. Hoover, (Ind.) 472. Time of taking.
7. Where the notice of an order and its entry fails to show, by indorsement or otherwise, the office, address, or place of business of the attorney serving it, it is in- effectual to limit the time of appeal.— Forstmann v. Schulting, (N. Y.) 190.
III. PRACTICE.
Assignment of errors.
8. Where an appellee files no assignment of cross-errors, none will be considered in his behalf.-Gage v. Davis, (Ill.) 36. 9. Where two or more appellants jointly complain, in any specification or paragraph of their joint assignment of error, of any ruling of the trial court against one of them alone, such specification or paragraph can- not be sustained as to any one, because it is not well assigned as to all who have joined therein.-Hanshew v. State, (Ind)
10. Rule 19 of the Indiana supreme court provides that marginal notes shall be made on the transcript in their appropriate places, but prescribes no penalty for the failure to comply therewith. Held, that a motion to dismiss for non-compliance with this rule will be denied where the tran- script is brief, the judgment chi fly as sailed upon the sufficiency of the plead- ings, and the merits of the cause have been discussed in the briefs of counsel on both sides, before the filing of the motion.— Bass v. Doerman, (Ind.) 377.
5. Plaintiff obtained a judgment by con- fession before a justice, a transcript of which was filed in the county clerk's office. After five years, plaintiff, still claiming to own the judgment, noticed a motion for leave to issue execution. Upon the hear- ing contestant appeared, and, by affidavit, alleged that he was the owner of the judg- ment by assignment from plaintiff. The matter was referred to a referee, who re- ported adversely to plaintiff. The report was confirmed by the county court, and plaintiff appealed to the general term of the supreme court, which court dismissed the appeal as not appealable. Defendant did not appear at any stage of the proceed- ings Held, that the proceeding was a spe- cial proceeding, within the meaning of 11. Under Rev. St. Ind. 1881, § 551, pro- Code Civil Proc. N. Y. § 1357, which providing that if either party request it, the vides that "an appeal may be court shall first state the facts in writing. taken to the supreme court from an order and then the conclusions of law upon * * made by a court of record possess them," an unauthenticated paper described ing original jurisdiction, or a judge there- in a marginal note upon the record as a of, in a special proceeding instituted in "statement of the court," will not be re-
garded as a special finding of the facts.- Conner v. Town of Marion, (Ind.) 488.
12. In chancery a motion in writing be- comes part of the record, and a judge's certificate on appeal as to what such mo- tion and the orders thereon were, is inop erative and void, and does not perform the functions of a "certificate of evidence. Flaherty v. McCormick, (Ill.) 846.
13. The copy of the record of proceed ings in a trial justice's court, when trans mitted to the superior court on appeal, is sufficient when attested by the trial justice who tried the case, although in the attesta- tion he describes himself as "justice. " in stead of "trial justice."-Commonwealth v. McParland, (Mass.) 164. Hearing and rehearing.
14. Under rule 24 of the supreme court of Indiana, a rehearing must be applied for by petition in writing, and such petition must set forth the cause for which the judg- ment is supposed to be erroneous.-Fertich v. Michener, (Ind.) 68.
Appeals from justices.
15. Upon a petition for leave to enter in the superior court an appeal from the judg: ment of a trial justice, it is not competent for the petitioner to show compliance with the statute provision by parol evidence that he offered to recognize, or that he offered to deposit with the trial justice, and tend- ered to him, a sufficient sum in lieu of a recognizance, which recognizance and de- posit the justice refused to accept; he has his remedy, not by treating the appeal as perfected, but by proceedings in review. Handy v. Tibbetts, (Mass.) 645.
16. Where a case has been heard in a trial court, subsequently reversed on ap- peal, and remanded to the trial court, with specific directions as to the decree it shall enter, the decision on the appeal is conclu- sive as to all questions properly before the appellate court, and on a subsequent ap: peal such questions cannot be again raised and reargued.-Mix v. People, (Ill.) 209. Objections not raised below.
17. A question of law reserved for the decision of the supreme court under Rev; St. Ind. 1881, § 630, will not be considered by this court, if such question arose upon trial of the case, unless a motion for a new trial was made, and an exception taken to the ruling of the court thereon.-Conner v. Town of Marion, (Ind.) 488.
different and inconsistent position. Thomas v. Kingsland, (N. Y.) 807.* Presumptions.
evidence was in and argument heard; un- 19. On amendment to pleadings after the less it is shown by the party objecting that he was misled or prejudiced thereby, the court, on appeal, will presume that the trial furtherance of justice.- Burns v. Fox, court permitted the amendment for the (Ind.) 541.
20. Upon appeal to the supreme court of Illinois, where the record presents no ques- tion of law, the decision of the appellate court as to matters of fact is final.-Guthrie v. Doud, (Ill.) 47.
21. It is not the duty of the supreme court to examine the evidence to see whether the appellate court found cor- rectly as to the question of facts in the case.-People v. Illinois & St. L. R. Co., (Ill.) 261.
22. The supreme court will not reverse a decision on the ground that the damages given are excessive, when the question is one purely of fact.-City of Joliet v. Wes- ton, (H1.) 665.
23. Since Code N. Y. § 992, forbids ex- ceptions to findings of fact, the practice of the general term in refusing to review questions of fact, unless the case contains a statement that all the evidence given upon the trial is set forth therein, is ap- proved.-Porter v. Smith, (N. Y.) 446. of certain voters was questioned, and the evidence bearing thereon was very close. Held that, as it was purely a question of fact, the lower court's decision would not be disturbed.-Belden v. Ravlin, (Ill.) 38. Rulings on evidence.
24. In an election contest the residence
25. In order to present questions on the admission or exclusion of evidence arising on the trial, a motion for a new trial must be made in the trial court.-Racer v. Baker, (Ind.) 241.
26. Construing Rev. St. Ind. 1881, §§ 627, 630, in pari materia, it is necessary, when an appeal is taken under the latter section upon a bill of exceptions only, and the question reserved is upon the exclusion of exhibit enough of the case, and the evi- evidence, that the bill of exceptions should dence touching the point in controversy, to show the relevancy of the evidence re- jected. - Indiana, B. & W. Ry. Co. v. Adams, (Ind.) 80.
Matters not apparent of record.
27. Plaintiffs appealed from a decision 18. Where a party, by his requests for of the appellate court, reversing a judg instructions, concedes the necessity of a ment in their favor in the circuit court, al- notice to repair on the part of a tenant to leging the court erred in the construction a landlord, he cannot, upon appeal, take a | of a statute. Held, that as the judgment
was simply one of reversal, and nothing | principal obligor for himself and the firm more, there is nothing to show that the court construed the statute in making its decision. People v. Illinois & St. L. R. Co. (Ill.) 261.
of which he was a member, the firm denied his authority to bind it. and the court so found. Held, that a finding, although er- roneous, that the firm had been dissolved by the death of a member. and that the heirs of such deceased members were not liable as partners, was non-prejudicial.— Schmidt v. Archer, (Ind.) 543.
28. Where the facts alleged in a declara- tion show a good cause of action, and the appellate court has decided that they were sufficiently proven, and no rulings of the trial court are alleged to be, or seem to be, 35. Plaintiff introduced a copy of a let erroneous, the judgment will not be re-ter written by defendant, stating that the versed by the supreme court on objections to the appellate court's opinion, that being no part of the record.-Christy v. Stafford, (Ill.) 680.
books showed a profit of $400 per month if the accounts were collected. Defendant introduced the books showing the same state of facts. Held that, even if the copy was improperly admitted, it worked no harm to defendant.-Dart v. Laimbeer, (N. Y.) 291.
Waiver of errors.
36. In an action to enforce a contract,
29. Defendant appealed from a judgment in the circuit court to the appellate court. where it was reversed. Plaintiffs applied for a rehearing, and by stipulation an amended declaration filed below, but omitted in the transcript filed in the appel- late court, was filed but disregarded by the the defendant pleaded mistake; but the court. Held, that as there was no order of plea was unsupported by evidence, and not the court entered of record, either denying urged by counsel on the trial. Heid, that or granting leave to amend the original such defense was abandoned at the trial. record by stipulationo or otherwise, there-Pettit v. Pettit, (N. Y.) 500. was nothing for this court to review in that regard.-People v. Illinois & St. L. R. Co., (Ill.) 261.
37. Where appellant fails to consider or refer in any way in his brief to an error as- signed by him, such error, if it really ex- ist, will be considered waived.-Hanshew v. State, (Ind.) 365.
30. Pending an action against a railroad company for failure to fence, an agreement in writing was entered into, by which the cause was continued, upon promise of the company to build a "good and sufficient" fence, and pay costs, together with plain- tiff's attorney's fee. The court excluded such agreement. Held, in the absence of any evidence in the bill of exceptions that the fence erected complied with the terms of the agreement, or that the costs and at- torney's fees had been paid or tendered, or otherwise showing its materiality, the rul- ing of the trial court would be upheld, al- though based upon another theory.-Indi- 39. Under 2 Starr & C. Ann. St. IIl e ana, B. & W. Ry. Co. v. Adams, (Ind.) 80.110, § 88, providing that the appellate Harmless error.
31. Exceptions will not generally be sus- tained, because incompetent evidence has been received to prove a fact which the conceded facts necessarily establish.- Hinckley v. Town of Somerset, (Mass.) 166. 32. Error in sustaining a demurrer to one paragraph of answer is harmless where substantially the same facts are set up, and the same evidence is admissible, under an- other paragraph of answer, to which a de- murrer is overruled.-Lehman v. Scott, (Ind.) 914.
33. A refusal to allow defendant to amend his answer so as to plead the stat- ute of limitations is not prejudicial error, where he subsequently introduces evi- dence which would avoid the effect of the plea.-O'Neil v. O'Neil, (Ill.) 844.
34. In an action on a note signed by the
38. Under 2 Starr & C. Ann. St. III. e. 110, § 81, providing that in all cases of ap peal and writ of error the supreme court or appellate court may give final judgment, the appellate court is authorized to enter final judgment on reversal of findings of fact made by the court below.-Commer cial Union Assur. Co. v. Scammon, (Iil) 666.
court, on final determination of any cause resulting wholly or partially from a find- ing of facts different from that of the court below, shall recite in its final order the facts as found, and its judgment thereon it is insufficient, in an action on an insur ance policy, where issues were presented as to whether there had been a breach of condition, whether notice and proof of loss were sufficient, and made in time, and whether a policy afterwards issued to sc other person on the same property was is- sued in lieu of the policy in suit, with the consent of plaintiff, to enter the findings of fact on the first two issues, omitting the third.-Id.
Remand and proceedings below.
40. After reversal of a decree in favor of plaintiff and remand, where defends:: with the mandate files a cross-bill, the
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