
    Levi Childress vs. Everette L. Ford.
    All the instructions given by the circuit court on the trial of a cause must be construed together; and if, when taken altogether, the law he correctly given, the judgment will not be reversed because a single instruction taken by itself, would be too broad in its terms.
    Therefore, where in a trial of right of property involving the question whether the sale to the claimant was fraudulent, the court instructed the jury, that if they believed the sale made by the defendant in execution to the claimant was intended wholly or in part to defraud, hinder, or delay creditors, the conveyance was void; hut had previously instructed the jury that unless the claimant participated in the fraud of his vendor they must find for him ; it was held, that if the one instruction were too broad, its error was corrected by the other.
    On a trial of the right of property levied on under execution, the circuit court instructed the jury that they might take into consideration facts which took plaee after the purchase by the claimant, which went to explain the intent of the parties to the sale when it was made ; held, that the instruction was not erroneous.
    The sanctity of the trial by jury requires that the jurors should be impartial and unbiased, and if it is afterwards ascertained that they were not so, the verdict should be set aside.
    Where, therefore, in a trial of the right of property to slaves, levied on under execution, one of the jurymen had stated, previously to the trial, that the sale from the defendant in execution to the claimant was fraudulent, and the slaves should be made liable to the execution; and on the impanelling of the jury, the jurors were asked if they ¿ad formed and expressed. o$'m-
      ions against the validity of the claimant’s rights, and they had all answered in the negative; and the claimant made oath that he was ignorant until after the trial of this expression of opinion by one of the jurors ; it was held, that the verdict should be set aside and a new trial granted.
    A different rule would perhaps prevail if the party chose to go to trial without examining the jurors.
    In error from the circuit court of Choctaw1 county; Hon. Francis M. Rodgers, judge.
    Everette L. Ford, on the 17th day of September, 1845, recovered a judgment against James Cameron for $751.02, and on the 12th of November, 1845, levied an execution thereon, on two negro men who were claimed by Levi Childress, according to the statute.
    At the March term, 1846, of the Choctaw circuit court, an issue was made up to try the right of property, and at the succeeding term the case was tried, and a verdict rendered in favor of Ford, the plaintiff in the execution.
    A motion for a new trial was made; 1. Because the jury found contrary to the law and evidence; 2. Because the court misdirected the jury: 3. Because of the partiality of the jury.
    It is not deemed requisite to detail the testimony on either side, as the opinion of the court was not predicated on it.
    The counsel for Childress moved the court to instruct the jury, that fraud is not to be presumed, but must be proven, and that unless the jury believe from the evidence that the contract of purchase was made by the claimant in fraud, they must find for him; that whatever they may believe of the fraudulent intent o'r ignorance of the defendant, Cameron, unless they believe from the evidence that Childress was a party to, and participated in the fraud, they must find for the claimant; that no subsequent conduct can render the original contract fraudulent; and that the law is, when a party introduces the declarations of the adverse party, they are bound by the proof, unless the same is contradicted. These instructions were given.
    The counsel for Ford asked the. court to instruct the jury: 1. When the vendor of personal property remains in possession of such property after the sale, such possession is prima facie fraudulent.
    2. That the possession of the vendee to avoid the above stated rule of law must be exclusive, and a mixed possession by the vendor and a son of the vendee is not such change of possession as to avoid the presumption of fraud.
    3. If the jury believe that the sale, made by Cameron to Childress, was made either wholly or in part to defraud, hinder, or delay the creditors of Cameron, then the conveyance is wholly void as to the creditors of Cameron.
    4 If the jury believe that the contract was fraudulent, they must wholly disregard such contract in the investigation of this cause.
    5. If the jury believe, from the evidence, that Cameron made the conveyance to Childress, for the purpose of hindering, defrauding, or delaying his creditors, and that Childress knew or believed that such was Cameron’s intent, then they must wholly disregard the conveyance.
    6. If the jury believe, from all the testimony and circumstances .of the case, that the deed made by Cameron to Child-ress was made for the purpose of hindering, delaying, or defrauding the creditors of Cameron, the deed would be void as to the plaintiff in execution.
    7. That circumstances alone may outweigh positive proof, and establish fraud as fully as it could be done by the most positive and direct proof.
    8. That the jury can take into consideration facts which took place after the trade, which go to explain the intent of the parties, when they made the trade.
    The court gave all but the seventh instruction, and the claimant excepted. On the hearing of the motion for a new trial, the affidavit of Childress was read, which states in substance that since the trial he had learned that Henry T. Mullen and David Daniel, two of the jurors, had formed and expressed their opinions before the trial adversely to his right of recovery; that they had both stated that they believed the sale from Cameron to him was a sham sale, and ought to be set aside. That before the jury were sworn, his counsel called upon each, to know if they had formed or expressed any opinion upon the matters to be submitted to them, to which they all replied in the negative; and that he had been ignorant of their previously expressed opinion until after the trial. The affidavit of Charles Matthews was also read; he stated, that he had on several different occasions, heard Henry T. Mullins say that the purchase made by Childress from Cameron was a fraudulent and' sham purchase, and that the slaves levied upon ought to be made liable to the execution; and that he had heard David Daniel say the same things prior to the then term of the court, at which the trial was had.
    The new trial being refused, Childress appealed.
    
      Acce, for appellant,
    insisted,
    1. That the instructions given for the plaintiff in execution were erroneous. He cited Wheaton v. Sexton’s Lessee, 4 "Wheat. 503; Gregg Lessee v. Sayre and wife, 8. Pet. 244; Wright & Cooke v. Stanard, 2 Brock. C. C. Rep. 311; How. & Hutch. Dig. 371, § 3; Harney v. Pack & Clifton, 4 S. & M. 258; Fos-terY. Hall, 12 Pick. 89; Clark v. Johnson, 5 Day’s Rep. 373 ; Edgehill v. Bennett, 7 Ves. R. 537.
    2. That on the facts proved, Childress was entitled to a new trial.
    3. That the preexpressed opinions of the jurymen vitiated their verdict, and it ought to have been set aside. McKindley v. Smith, Hard. Rep. 167 ; Vance v. Hastell, 4 Bibb’s Rep. 191; Hernden v. Bradshaio, 4 Bibb, 45; Craigg v. Elliott, 4 Bibb, 272; Pierce v. Bush, 3 Bibb, 347; Jeffries v. Randall, 14 Mass. 205; United States v. Fries, 3 Dali. Rep. 515.
    
      Jackson, on the same side,
    relied on the last point taken.
    
      William and William G. Thompson, for appellees,
    contended, that the verdict should not be disturbed; the whole record showed it was right. They cited Meigs’s Rep. 167, 262-264.
   Mr. Chief Justice Shaeeey

delivered the opinion of the court.'

Ford, the defendant in error, had recovered a judgment against James Cameron, for seven hundred and fifty-one dollars, on the 17th of September, 1845, and on the 12th of November, 1845,'had his execution levied on two negro men, which were claimed by Childress, who gave a bond to try the right according to the statute. A trial was had on issue joined, which resulted in a verdict that the negroes were liable to Ford’s execution, and that the claim of Childress was fraudulent. During the progress of the trial, a bill of exceptions was taken to the charges of the court, which also embodies the evidence. After verdict, the claimant moved for a new trial, and excepted to the opinion of the court in overruling his motion. The grounds relied on for a new trial were, first that the verdict was contrary to law and evidence; second, because the court misdirected the jury in the instructions set out in the first bill of exceptions; and third, because of the partiality of part of the jury.

We are not prepared to say that the verdict was contrary to law or to the evidence. On.the contrary, it seems to be in strict accordance with both.

But it is insisted, that a new trial should be granted because the court erred in giving the third and sixth instructions asked by the plaintiff in execution. The third charge was, that if the jury believed the sale made by Cameron to Childress was intended wholly or in part to defraud, hinder or delay creditors, the conveyance was void. The sixth charge contains the same proposition in substance. To these it is objected that they were too broad; that the sale was not void unless Childress was a participant in the scheme. We shall not controvert the doctrine, that a bona fide purchaser without notice, who has parted with his money, and has taken an absolute conveyance, will be protected in his purchase, although his vendor may have made the sale to hinder or delay creditors. But we find that the jury had been fully informed on this subject by the previous instructions given at the instance of the claimant, in which the court used this language, to wit, that unless the jury believe from the evidence, that the contract of purchase was made by the claimant in fraud, they must find for him. That whatever they may believe of the fraudulent intent or ignorance of the defendant Cameron, unless they believe from the evidence that Childress was a party to, and participated in the fraud, they must find for the claimant.” The jury were thus distinctly informed in the outset, that Childress must have participated in the fraud, and the subsequent instructions were given in view of this principle of law. The charges must be construed together, and when all that the court said is taken into consideration, the principles of law were not extended too far.

The eighth instruction is also objected to. It is in these words, to wit, “that the jury can take into consideration facts which took place after the trade, which go to explain the intent of the parties when they made the trade.” To this there can be no valid objection. This was not a resort to subsequent facts to vitiate the trade, but to show the intention which operated on the parties when the contract was made.

The last ground taken in support of the motion for a new trial is, that two of the jurors had formed and expressed opinions against the validity of the claimant’s right. By his own affidavit, the claimant shows that he was ignorant of this fact until after the trial. He also shows that before the investigation commenced, each juror was called upon to state whether he had formed and expressed an opinion. It is shown by the affidavit of a third person, that one of the jurors had been repeatedly heard to declare, that the sale made by Cameron to Childress was fraudulent, and that the negroes levied upon ought to be made liable. For a similar expression of opinion, a new trial was granted in the case of Cody v. The State, 3 How. 27. And in the United States v. Fries, 3 Dallas, 515, a new trial was granted because one of the jurors had, before the trial, expressed his opinion as to the guilt of the prisoner. The sanctity of the trial by jury, requires that the jurors should be impartial and unbiased, and if it is afterwards ascertained that they were not so, the verdict should be set aside. We mean for the present only to apply this rule where, as in the present case, the proper inquiries have been made to ascertain whether the jurors were competent. If a party chooses to go to trial without examining the jurors, the effect may be different.

Judgment reversed, and new trial awarded.  