Moser v. Mayberry

[14] The opinion of the Court was delivered by Rogers, J. We cannot perceive any just cause of exception to the charge. The court sustained the defence, in part, on the ground of a failure of consideration; the property having been taken from the garnishee by due course of law, and applied to the use of the creditors of the vendor. But they put it to the jury to say, whether all the property which formed the consideration, had been taken and applied to that purpose, and instructed them that it was a defence only to that extent. As between the vendor and vendee, the defence would be available only so far, and surely the unpaid creditors of a fraudulent vendor cannot be in a worse situation than the vendor himself. The vendee would, at least, be bound to pay for all that would remain, after deducting the value of the property lost by the attachment. It is said, the notes were declared void by a former verdict and judgment, but this was a proceeding in rem, and between the parties; and besides, granting the .contract to have been fraudulent, it may be well doubted whether the garnishee, who was a party to the fraud, was entitled to any deduction whatever. A party who asks the aid of a court of equity must not claim through the medium of a fraud. He must come into court with clean hands. When the vendee prays relief on account of the property taken under the former attachment, it may be replied that it was the necessary consequence of his own fraudulent act, and on that account he cannot entitle himself to the protection of a court of chancery. After the jury had given their verdict, and before it was entered, the defendant’s counsel asked the court to request the jury to say upon which of the notes attached they found the sum returned to be due. Although debts are attachable under a foreign attachment, yet the garnishee is not compellable to pay the money before it is due. The notes in controversy were payable, some before, and some after the attachment, so that it was difficult to tell on which of the notes the jury found. To remove this uncertainty was the object of the defendant’s motion. The jury found generally for the plaintiff, 478 dollars; the legal effect of which is, that the money was due. But admitting that the jury were mistaken in their conclusion on the facts, the ordinary remedy is by a motion for a new trial. The court may, and frequently do, recommend the jury, when a palpable error has been committed, to reconsider the verdict; but it has never been held that this is a matter of right, on which any party can insist., and that a refusal to do so would be error. This would make the court in the last resort, judges of the fact, as well as the law. It is not for us to say whether the court of common pleas was wrong in refusing the defendant’s prayer, although we cannot see, if we may venture to express our opinion, that any great injustice has been done, as it is admitted that one of the notes, to a greater amount than the sum found, was due, and payable by the vendee. If the counsel had requested a direction on this point to [15] the jury, perhaps an omission to do so would have been matter of exception. But, having slipped the time, they cannot now assign it as error. A judgment must follow the verdict; the court was bound to enter judgment for the plaintiff without stay of execution. If the verdict warrant it by a special finding, the court may enter judgment, with stay of execution, until it is due. Judgment affirmed.