Douglass v. Boynton

Warner, Chief Justice. This was a claim case, on the trial of which the jury, under the charge of the court, found the land levied on not subject. The plaintiff made a motion for a new trial, on the several grounds therein stated,, which was overruled by the court, and the plaintiff excepted. 1. It appears- from the record and bill of. exceptions, that the plaintiff’s counsel, on the- argument of the case before the jury, proposed to read to them the case of Peck vs. Land, as reported in the 2d volume of Kelly's Reports, which' the court refused to allow him to do, but told him he could read it to the court in the hearing of the jury, if he desired to do so. There was no error in the refusal of the court, to allow the case of Peck vs. Land to be read to the jury, in view of the provisions of the 3d common law rule of practice in the superior courts, which declares that, “ In all civil. cases, questions of law shall be argued exclusively-to the court, and questions of fact to the jury.” 2. There was no error in the charge of the court to the jury, in view of the evidence contained in the record. The verbal agreement that the claimant, was to let the defendant in fi. fa. have the home-place back after “ these troubles were over,” from which a trust could be inferred, was not made until 1870 or 1871- — -long after the conveyance of the land by the defendant in "fi. fa. to the claimant, which was in 1868; The evidence in the record failed to satisfy the jury that the claimant had knowledge that it was the intention of the defendant in fi. fa., in making. the conveyance of [286] tlie land, to defraud his creditors, (if, indeed, .such was his intention,) but, on the contrary, the claimant swore that lie took the conveyance of the land in payment of a debt which the defendant owed him, and did not know that the defendant owed a dollar. There being no error in the charge of the court, and there being sufficient evidence in the record to sustain the verdict, if the jury believed the claimant’s witnesses, and that was a question for them, the- verdict was not contrary to law or the evidence, and there was no error-in overruling the motion for a new trial. Let the judgment of the court below be affirmed.