
    JANUARY TERM, 1844.
    John Johnson v. Taylor, Reed & Co.
    T. R. & Co. recovered a judgment against J., who moved for a new trial, which was.granted him upon his paying th4 costs of suit within ninety days; held, that the payment of the costs within the ninety days, could not be construed to be a condition precedent; he was entitled to his new trial whether he paid the costs or not; and if he failed to pay, the opposite party must resort to their legal remedy to obtain them.
    Error from the Circuit Court of Yazoo county.
    The facts of this case, so far as the opinion of the Court renders a statement of them necessary, are as follows, to wit: On the 9th day of May, 1840, Parham Buford conveyed, in trust for the benefit of his creditors, who are not named in the deed of trust, and never formally accepted itj to A. G. Harrisdn, all his moneys, debts, goods, chattels, and all his estate, real as well as personal. Taylor, Reed & Co., having recovered a judgment at the November term, 1839, of the Circuit Court of Yazoo county, against said Buford, for ‡525.87, on the 1st day of March, 1841, sued out of the office of the clerk of said Court, a process of garnishment, which was served on John Johnson, who, in his answer, stated that he owed Buford nothing, but he was indebted to the trustee in said deed of trust about $250. T. R. & Co. alleged, that Johnson had not discovered the truth ; and a jury was empanelled to try the issue ; who found a verdict for T. R. & Co. J. then moved the Court for a new trial. His motion was sustained, a new trial granted, upon his paying all costs within ninety days. At the next term of the Court, in November, 1843, T. R. & Co. moved to .dismiss the case from the docket, and award an execution, because J. had not paid the costs within the ninety days, nor in fact paid them at all. On the trial of this motion, T. R. & Co. introduced Gibson Barnes, who, being sworn, stated that he was a deputy clerk of said Court; that shortly before the expiration of the ninety days, Frederick W. Wheliss came into the clerk’s office, and said he had the,’ money to pay the costs of said suit, but he left it at his house, which, the witness stated, was about three miles from the clerk’s office, yet he would get it if required to do so ; that he, Barnes, said it was not necessary, and told Wheliss he might consider the costs as paid, intending to pay them himself, if called for, though he did not tell Wheliss so ; that a few weeks afterwards, Wheliss came and paid the costs. The defendant, Johnson, then called Thos. P. Slade, the clerk of the Court, who testified, that Barnes informed him of the above conversation with-Wheliss, a day or two after it took place, and from that time he considered the costs as paid, and himself liable for them ; that he had ever since been ready and willing to pay them, and was so still. This being all the evidence, the Court sustained the motion, and ordered the cause to be dismissed, and that execution issue ; to which the defendant excepted, and now brings the case up by writ of error.
    
      Wilkinson and Miles, for plaintiff in error.
    The condition upon which the new trial was awarded, is insensible, could not have been carried into effect, and is such as the Court had no power to make. There is no person named in the award of the new trial who is to receive the costs. We are not told whether it was to be paid to an officer of the Court, or to any other person ; and the time of payment being in vacation, and no person being designated in the order, there was no one authorized to receive it. And if, under such circumstances, it had been paid by Johnson, he would have been liable to pay it over again.
    But, in the second place, it was in point of fact paid, as we think the record abundantly shows. The Court is referred upon this branch of the cause to the authorities at the end of the brief.
    And at any rate, .there was sufficient reason shown why it was not paid. The award of the new trial ought, therefore, to stand, and the insensible condition annexed to it should be regarded as void.
    That a new trial of the cause was properly awarded, the authorities we are persuaded fully show. See Brashear v. West, 7 Peters, 608 ; Brown v. Minturn, 2 Gallison, 557 ; Brooks v. Mar-bury, 11 Wheat. 78 ; 6 Condensed Rep. U. S. 232, 233 ; Nicole 
      v. Munford, 4 J. C. R. 529 ; 11 Wendell, 250 ; 4 Mason, 183, 206. These, cases, and especially the last, fully establish the principle, that, “ if a conveyance or assignment be made by a debtor in trust, for the benefit of creditors, not parties to the assignment, and an attachment be afterwards sued out, at the instance of a creditor, and served before such assent is expressly given, the deed is not void as to the attaching creditor.” And the only cases which countenance the opposite doctrine (which are to be found in the Massachusetts Reports), are noticed and successfully exposed in several of the above cited causes.
    The finding of the jury was wrong, therefore, and the Court having misled them by its palpably erroneous exposition of the law, very properly awarded a new trial. It seems strange, however, that in its effort to rectify its own error, it should have imposed such unreasonable terms, and have held Johnson to a literal compliance with them, heeding no excuse for his failure, if he did fail, and unceremoniously denying him all chance for that justice, which the blunder of the Court alone had caused him to fall short of at the first trial. It is clear, that if another trial of the cause is not had, Johnson will be compelled to pay this money twice; for the erroneous recovery of him, by the defendants in error, will be no bar to a suit by the trustee of the creditors of Buford. ■ See 4 Munford, 207, 364 ; 1 J. J. Marshall, 479 ; 5 J. J. Marshall, 243 ; 6 Cowen, 582 ; 2 Wendell, 293 ; 7 Wendell, 522 ; Gil-mer’s Reports, 123 ; 1 Pennsylvania Reports, 399 ; Graham on New Trials, 600 ; 1 Virginia Cases, 123 ; 2 H. & M. 614 ; 9 J. R. 370.
    
      John-Battaile, for defendants in error.
    It seems to my mind very clear, that the verdict and judgment, last obtained by defendants in error, from the evidence set out in the bill of exceptions, taken by the counsel in the Court below, of defendants in error, should not have been disturbed by the Circuit Judge. The deed of assignment of Buford to Harrison, is on its face most palpably fraudulent. But if there could be any doubt of this, the evidence embodied in the bill of exceptions establishes the fraudulent character of the instrument, as to creditors, to the exclusion of every reasonable doubt. The deed itself is its own best exponent, and from its very terms is almost evidently in violation of the statute against fraudulent conveyances, and was intended to hinder, delay, and defraud creditors. The fraudulent intention and purposes of such conveyances, can rarely, if ever, be proven by positive evidence. The true character of such conveyances is usually made to appear by the studied effort at the concealment of its real purposes, which its language betrays ; by the combined force of numerous indicia of fraud ; or by the irresistible conclusion, which the mind is forced to from the coincidence of many facts and circumstances, each of which is a badge of fraud. It often happens, that the very attempt to make the instrument present the outward appearance of consisténcy and fairness, discloses its inward and real deformity and vice.
    For anything that is shown in evidence, the possession of the personalty and choses in action conveyed, remained with the debtor, Buford ; the evidence justifies the presumption. The assignment deed professes to convey all of his property, “real as well as personal, of what kind, nature or quality soever.” And there is no proof of the delivery of possession by Buford to Harrison, of any portion of it whatsoever. Yet there seems, from the evidence in the bill of exceptions, to have been an attempt to prove a delivery of possession, which signally failed of its establishment ; which renders the presumption violent, and the conclusion irresistible, that the possession was retained. It is true, it is proved that Harrison was once in possession of Johnson’s note ; but there is no proof that it w?as delivered to him by Buford. It is a well established principle, which I conceive too generally acknowledged to require the citation of authority, that the retention of possession of persona] property by the grantor, which has been by him conveyed in an absolute deed of conveyance, left unexplained, is fraud, per se. This is the doctrine sanctioned by the supreme tribunals of nearly all our sister States, and many English authorities. But the doctrine of fraud, per se, is carried so far, by most of the English decisions, and nearly all of the decisions of the Supreme Court of the United States, as to preclude all explanation of inconsistent possession.
    But there are many badges of fraud established by the evidence. 1st. There is no schedule of the property, notes, and other choses in action conveyed. 6 Mass. 339 ; Twyne’s case ; 3 Coke, 87 ; Angel on Assignments, 66 ; 4 Mason’s R. 206 ; 1 Binn. 516 ; 4 Wash. C. C. R. 232 ; 7 Greenl. 84 ; 5 N. H. 118.
    2d. There is no schedule of debts; nor are any creditors named. 6 Mass. 339 ; Angel- on Assignments, 66, and authorities there cited ; 4 Dali. R. 76.
    3d. Buford, the debtor, was badly broke, as is the expression used in the testimony, at the time he executed the assignment. 1 Monroe, 105, 106 ; 3 Mon. 3 ; 3 Munf. 521.
    4th. There is no description of the real estate pretended to be conveyed. 13 J. R. 97.
    5th. There is no evidence, that the creditors of Buford ever sanctioned, or accepted of the assignment; or even that they ever had any knowledge of it, until after it was executed ; for none of them signed it. 10 Pick. 408 ; 5 Mass. 144; 6 Mass. 339 ; 17 Mass. 454; 5 Condensed Engl. C. R. 1 — 7 ; 3 Merivale, 707; 18 Ves-. 98.
    
      6th. There were judgments existing against Buford, at the date of the assignment, as appears from the evidence, which were liens on the property. The deed was certainly fraudulent as to the judgment-creditors. And the judgment of defendants in error, it will be seen by reference to the record, was recovered more than six months before the assignment was executed. 4 J. C. R. 522, 529 ; 14 J. R. 464. As to attaching creditor, see 1 Pick. 357 ; 11 Pick. 76, 298.
    7th. After the assignment, Buford attempted to collect the note of Johnson.
    8th. No valuable consideration is expressed, as 'passing from Harrison to Buford; nor is there any proof, that Harrison ever acted as trustee. The deed is therefore void, as a conveyance to Harrison, for want of consideration. Had there been one peppercorn mentioned, it would have been sufficient to have supported the deed; but in the absence of any, the least consideration, for no compensation even is provided for Harrison, the title to the property cannot vest in the trustee, and the deed is void at Common Law. Roberts on Fraudulent Con. 429 ; 2 Story, Eq. (2d ed.) p. 303, § 1036, b. ; p. 235, 236, § 972, n. (4) ; p. 310, § 1046 ; 1 Mon. R. 105 ; Simons’s English C. R. 1, 14 ; 11 Pick. 76, 298 ; 1 Pick. 267 ; 1 Chitty’s Pr. 303, 331 ; 1 Pirtle’s Dig. 464 ; 2 Chitty’s Pr. 60 ; 2 Sugden on Vendors, 159. The existence of so many badges, so fully corroborate the impeachment of the deed for fraud, that I feel confident, this Court must adjudge it fraudulent and void, as to creditors. Especially, as a jury has already, by their verdict, declared it fraudulent. 7 Cowen, 301 ; 9 J. R. 342 ; 8 ^Vend. 375 ; Angelí on Assignments, 113.
    Even, however, should the Court think that the deed of assignment is valid, the plaintiff in error was only entitled to the new trial upon his complying with the condition imposed by the Court granting it; that was, the actual payment of the costs, to the parties entitled to them, within the ninety days. The language of our statute, on new trials, is, that “ every new trial granted at law, shall be on such terms and conditions as the Court shall direct.'1'' How. & H. Dig. 616. The Court, therefore, undoubtedly had the power to impose the condition. And why not to enforce it ? The benefit of the new trial was awarded on terms ; and it would be unjust, that the party should have the privilege of the new trial, without complying to the terms. It is clear, that the terms were not complied with. By them it must be understood, that a performance could only be done by the actual payment of the costs, to those who were entitled to them, viz., the opposite party, who is •presumed, in law, to have paid the officers of court, the witnesses, and sheriff, &c. The clerk had no right to receive the money in vacation. Payment to the clerk .is only authorized when the Court orders the payment of money into Court. Much less had the clerk the power to assume the payment of the costs himself, and discharge the defendant Johnson from the condition. If this were the practice, in case of the insolvency of the clerk, parties in all such cases might lose their costs entirely. It is clear, that there was no actual payment of money, within the ninety days. It is not within the ordinary duties of the clerk, to execute such orders of court, or to receive costs in such cases, in vacation, under a rule of court. Such orders, if intended to authorize the clerkrto receive the costs, would be conferring judicial power on the clerk, to be exercised in vacation ; and suck orde?'s are void, being extra judicial, and mere matters in pais. See to this effect, 1 J. J. Marsh. 478, 479. Our statute'on the subject of terms and conditions on. granting new trials, is very strong, and overrules all decisions upon the practices in other States, unless made under similar statutes.
    But if the clerk, or his deputy, was bound to take the assumpsit of the defendant, Johnson, in lieu of the actual payment of the costs, was he authorized to take the assumpsit of Wheliss, a mere stranger ?
    The payment of all costs within ninety days, was a condition precedent to the taking effect of the order granting the new trial, and should have been strictly performed ; without which* the grant of the new trial did not take effect, nor did it operate to set aside the verdict and judgment rendered for defendants in error, at the previous term. But the verdict and judgment remained unaffected, and in full force ; was an end to the suit, and the plaintiff in error went out of Court.
    Although the amount involved in this case is small, and for its sake alone would not have required as elaborate an argument even as this, yet the question of the validity of the deed of assignment is • important, as involving important interests ; and the question of the payment, on granting new trials, of costs, imposed as a condition, in strict conformity to such condition, is important to be settled, that the practice may be established, one way or another.
    Upon the grounds set forth above, -I think the Circuit Court did not err in ordering the case to be stricken off of the docket, and in leaving the verdict and judgment rendered at the previous term undisturbed. ,
   Per Curiam.

By the record, it appears that Johnson had been summoned as a garnishee, by Taylor, Reed & Co., as judgment-creditors of Parham Buford. An issue was taken on his answer, and a verdict found against him. Having obtained a new trial, a second verdict was found, and he again moved for a new trial, which the Court granted on terms, to wit; the payment of the costs within ninety days. At the.succeeding term, the defendants in error moved to dismiss, because the costs bad not been paid, and the Court sustained the motion ; and it is to reverse this judgment that the case comes up ; so that it will be perceived the merits of the controversy are not now involved. For if the judgment was correct, , the case was at an end ; and if it was erroneous, the cause should still stand for a new trial.

The deputy clerk stated, that a few days before fhe expiration of the ninety days, one Wheliss came into the office, and stated that he had the money to pay the costs, but it was at home ; that he could get it if necessary ; upon which the witness remarked to him, that he might consider them paid. A few weeks afterwards, said Wheliss came to arrange the matter of costs for Johnson, and did actually pay them. The clerk stated, that in a few days he was informed by his deputy what had transpired, and from that time he considered the costs as paid, and himself liable ; and that he had always since been ready and willing to pay them when called for, and was so still.

It would be harsh, under these circumstances, to deprive the party of his new trial. The agreement of the clerk, to whom at least a part of the costs were due, must be considered as a waiver. The party, it seems, was not in default. He stated his readiness to pay, but payment was dispensed with by the clerk, and it would be a surprise on him to turn him out of court, because of the nonpayment under such circumstances. But again, the payment of costs cannot be construed as a condition precedent. The order was made in term time, and took effect then, or it did not take effect at all. The costs were to be paid in ninety days. This only imposed on the party a liability for the costs. The grant of a new trial was absolute at the time it was made, and if the party failed to pay the costs, the opposite party was entitled to his legal remedy for them. 5 J. J. Marsh. 242.

Judgment reversed, and cause remanded for trial.  