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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.

END OF VOLUME 14.

INDEX.

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.

Accounting.

See Executors and Administrators, 7-9;
Guardian and Ward, 2.

ACCOUNT STATED.

Pleading and proof.

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APPEAL.

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.

Action.

See Costs; Damages; Limitation of Actions;
Parties; Pleading; Practice in Civil Cases;
Venue in Civil Cases.

v.14N.E.-60

V. DECISION.

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.)

733.

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.)

697.

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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)

365.

Record.

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.

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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.

IV. REVIEW.

Second appeal.

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.

Questions of fact.

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.

Reversal.

V. DECISION.

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.

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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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