Dodge & a. vs. Griswold & a., 12 N.H. 573

Upham, J. The substance of this case appears in the issue which was transferred to the court below for trial. This issue was to determine whether a deed, purporting to convey a certain tract of land in Walpole, described in the plaintiffs’ bill, and which is the same land attached by him, was fraudulent as to creditors. The proper determination of this cpiestion is conclusive as to the whole case. A verdict has been found against the defendants.

It is contended, however, that the finding is erroneous, and that it should not properly render any aid to the judgment or conscience of the court, in the decision betwixt these parties, but should be set aside, and a new trial granted, or the court should rescind the order sending the issue to the jury, and proceed of themselves to determine the matters in controversy, on their own views of justice and equity. We shall waive, for the present, the question whether either party is not entitled, of right, to the trial of any issue in fact by the jury, under the provisions of our constitution. The 20th

article of our bill of rights provides that .“in all controversies concerning property, and in all suits between two or more persons, except in cases in which it has been heretofore otherwise used and practised, the parties have: a right to a trial by jury ; and this method of procedure shall be held sacred, unless in cases arising on the high seas, and such as relate to mariners’ wages, the legislature shall think it necessary hereafter to alter it.” The issue having been sent to the jury, on a question highly proper for their consideration, we should not, at this stage of the case, revoke the order to this effect, even admitting we had a constitutional right so to do.

The verdict is, however, open to exception from any cause showing it to have been improperly rendered, either from misconduct of the jury, or the consideration of improper testimony, or wrong direction given by the court. But exceptions of this description should be taken at the court below, and properly certified to this court, for revision and adjudication here. In no other mode can we obtain the proper and authentic evidence of what transpired on the trial.

It is said that the evidence was not excepted to, for the reason that the testimony taken was transmitted to the court below, with the order that it might there be used on the trial of the issue. Such was the order. It never was supposed, however, that this precluded exception, on the part of the defendant, to any particular portion of the testimony, as irrelevant, improper, or inadmissible for any cause.

It was not. the proper province of the court to take exception in the outset to any part of the testimony, because such exceptions are left for the party to take in the progress of the trial, and when not taken are regarded as waived. The exception taken to the order of the court is a general one, and goes merely to the competency or propriety of it as a general order, and cannot be regarded as an exception to particular portions of the testimony transmitted. Such exception should have been specifically made on the trial, which was not done.

Had such exception been taken, we have no belief it could have prevailed. We have as yet heard no portion of the testimony excepted to, but what we regard as strictly competent in the trial of the issue. It has been contended that there was nothing in the testimony fixing any participation in the fraud on the part of George S. Griswold, one of the defendants, so as to make the declarations of Joel Griswold evidence against him. But these declarations of Joel Griswold, so far as any are in the case, all relate to transactions and acts done by Joel Gris-wold, in which it is shown that George S.

Griswold participated, and which the jury found were fraudulent, with his knowledge, aid and assistance. There was no evidence submitted to the jury but would have been competent in the trial of any case at law, in a conspiracy to defraud. So far as there has been any specification of exception on this ground, we think it must be overruled. It has been farther contended, that there was no evidence submitted to the jury competent to sustain a verdict against the defendants, either under the rules of law or equity; for the reason that there was no testimony in the case sufficient to overrule the weight of George S.

Griswold’s answer, on the ground that there must be more than one witness, directly conflicting with the statements in his answer, otherwise he must go purged of any fraud. It is a well established rule, that the answer of the defendant to a bill upon any matter in issue betwixt the parties, is evidence in his favor. 2 Fond. Eq., b. 6, ch. 1, § 1, and note c; 2 Johns. Ch. Ca. 127, 128; 2 Vern. 176, Marshfield vs.

Weston ; and it is not only so, “ but it is conclusive, unless it is overcome by the satisfactory testimony of two opposing witnesses; or, what is holden to be equivalent, the testimony of one witness corroborated by other circumstances, or facts, which give to it a greater weight than the answer.” 2 Story’s Eq., ch. 47, § 1528; 1 Bro. Ch. Rep. 52, Pember vs. Mathers ; 2 Atk. 19, Walton vs. Hobbs; 1 Ves. 97, Arnot vs. Biscoe ; 18 Ditto 12, Cooke vs. Clayworth ; 9 Cranch 160, Clark’s Exrs. vs. Van Reimsdyk ; 1 Johns. Ch. 459, Smith vs. Brush.

In this case, the issue betwixt the parties is, whether or not the sale of certain real estate was executed with a view to defeat, delay, or defraud creditors. In all such cases the evidence almost uniformly consists of a variety of facts, derived from different witnesses, the aggregate of which tend to show a fraud; and where such evidence, as a whole, overbalances the answer, it is a good foundation for a verdict. Such was the testimony submitted in this case. Numerous witnesses testified to various transactions, each severally tending to disprove the answer of the defendant.

It is not necessary that the evidence should in terms negative the allegations of the answer. It is sufficient that.distinct facts are shown from two or more witnesses conflicting with it. Facts thus derived from independent sources, are fully competent to overrule the answer. It was on such evidence that the verdict was found. We see. therefore, no ground to set aside, or interfere with the verdict of the jury, for any cause shown ; but, in conformity with the verdict, we hereby adjudge the sale fraudulent, and decree that George S.

Griswold and Joel Griswold be barred from setting up any claim, under the deed to them, to such portion of the premises mentioned in the deed as shall be duly set off upon execution, issued in the suit of the plaintiff ; and that George S. and Joel Griswold, on demand, after such levy, execute a sufficient deed of release to the plaintiff, of the portion of the premises embraced in the levy ; and that execution issue against the defendants for the plaintiffs’ costs. Ch. Jus. Parkee and Justice Giechbist did not sit.