
    WILLIAM STEINMAN vs. WESLEY TOLIVAR.
    ]. If no objection was made to any of the evidence given in the circuit court, and no exceptions taken to any of the instructions given by that court for either party, the supreme court will not notice ei her.
    2. The overruling a motion for a new trill is properly a subj°ct which comes before the sound discretion cf the circuit ourt; the supreme couit must see that this discretion ha» been abused before it will interfeie.
    APPEAL from St. Louis Court of Common Pleas.
    STATEMENT OF THE CASE.
    Wesley Tolivar, the'appellee, sued Lubke & Penningrot, and attached the steamboat “Beardstown,’’ as their property. William Meinman the appellant interpleads and claims thebvat as his property at the lime the attachment is-nied. Evidence a note for $1200 executed to him by Lubke & Penningrot on the 1st Dec., 1847. 2. Conve) anee.of boat to tius-tee on the I8ih M r d>, >8 !8, io secure said nole. 3. l»ale of the boat by trustee, and purchase by Steinman, aid I ill o¡ sale and delivery of bo it to Steinman.
    Evidence of Lubke that 'lie <’e d of trust was executed in good faith to secure the note W’.iic i wu a's J evec ited in goed faith.
    The appellee ] roved by three w'dii's-e*, Riley, Tice and Felt, that Lubke said before the ¡sale of'fhe bo t the died of trust vra> executed to .-ecure the debts of said witnesses. One of the wlfno.-ses, Felt, also stated that Steinman, the appellant, stated aftei the sale that thedeed of trust was‘intended to secuie the debts of Tice and Tolivar.
    Morehead, for appellants.
    Upon this state offacts if is ¡ntis'ed that tb" title of Steinman to the boat at the time fheat-iachment was levied is unquestionable, unless there is positive proof oí fraud in the execution of the note, fraud cannot be presumed. Thai e is no proof in the case relating to the note, its'xe’n<i n, cons'deration or justness except by Lubke.
    That the verdi t of the jury was erroneous and that the weight of evidence was for the appellant, inter l-rder b low.
    If the statements attributed to Lubke by the three witnesses be true, (which is not admitted) yet if he did make the statement, that statement cannot affect the rights of Steinman, the justice of his not-, or implicate Irm in a fr< tid. That statement could not affect the deed oftrnsj solemnly execute 1 o'' a different import. Besides, it was not made under oath ; he now makes aviry dii'er?ut statim nf underoath.
    Again, if the s'a'emm b > liu -, vi h it does if amomtfo? Not thif the note was not just and bona fide that was ex»cuted long before the debts of Tice, Felt & Tolivar began to accrue, and the wiJ nesses with all their prejudices could not attach it, but that they, the witnesses, were impliedly beneficiaries of the trust with Steinman. The validity of the sale under the trust cannot be affected. If there is any advantage from this statement it is against Steinman himself fjr a portion of the proce-ds of sal-. The sa e must stand good, made regularly and without notice, and the title under if, is go id. The case then comes before the jury on the part cf Steinmin wi‘h a note, deed of trust and sale, all unimpeached and sale regular, and enc witness who proves the note and deed of trust executed in good faith; on the part of Toi-ivar, one witness, Fel‘, who prove» that St, imnan said after the sale the trust was intended to secure Tice í¡ Tolivar. If ¡here h. ny thing in Felt’s evidence it is only as to liability ot Steinman personally to Tice & Tolivar for proceeds of sale, it cannot as before staled affect 1he validity of sale, ree case of Laker vs. Welsh, 4 Mo. JL 48-1, as to Lubke’s evidence.
   Rtlanr, Judge,

delivered the opinion of the court.

This was a suit by attachment in favor of Wesley Tolivar against Lubke & Penningrot.

The steamboat *• Beardstown” was attached. William Steinman claimed the property as ids, and filed his interpleader setting forth his claim. This claim was denied ; a jury was empannelled, and they found a verdict against Steinman. He moved for a new trial, which was overruled and denied him. He therefore tendered his bill of exceptions, and brings the case here by writ of error.

The bill of exceptions shews that no objections or exceptions were taken by the, interpleader to any evidence offered by either party below. Nor were any exceptions taken to any instructions refused or given by the court for either party below.

The facts were off. red, and were presented to the jury without any exception.

The court gave instructions to the jury which placed the matter fairly before 1l;< m.

We cannot now take n itice of any illegal or improper evidence, if any such were offered ; nor can we notice the instructions gh en, asno objection was taken to them below. Tire only point before us is the overruling the motion for a new trial.

Nov this is properly a subject which comes before the sound discretion of tlie lower court, and in this matter we must see that the court abuses this discretion before we will interfere.

The jn y liad t he whole facts before them, they knew what credit the witnesses were entitled to, and they could very properly see whether from the facts in proof there was any fraud or not between Steinman and Lubke & Penningrot about the sale and trust of the steambi at Beard»-town.

We cannot interfere with the judgment of the court below in this ease. (

Nothing has been properly presented to us but the simple queston of new trial or not, and there is no sufficient reason apparent on the record why there.should be a new trial.

Let the judgment below below be affirmed.  