
    No. 38.
    Joseph P. Gray, plaintiff in error, vs. John M. Cole, Edward H. Mann, defendants, and Noah McNabb, trustee, claimant, defendant.
    
       Not error to refuse to control Counsel under a suggestion that lie was misrepresenting the evidence, when he explains that his assertion was only an inference from the evidence, and there were some grounds, though’ slight, for such an inference. ^
    
       Charge to the Jury, tuiwarranted by the evidence, is error.
    
      
       The Jury may consideras evidence rebutting the inference drawn* by-plaintiff’s Counsel, that defendant bad sold all his property during the pen- • dency of the suit to claimant, that there was other property of defendant levied, on at same time with that claimed and sold.
    
       Sheriff’s return on a fi. fa., agiinst defendant not conclusive against a. - claimant.
    Claim, in Decatur County. Tried before Judge Allen, April Term, 1856.
    John P. Gray caused a fi. fa. in his favor, against John M. Cole and Edward H. Mann, to be levied on “ eight thousand, .pounds of seed cotton, more or less, fifty bushels of corn, more or less, and three stacks of fodder,” as the property of John M. Cole, one of the defendants injd. fa. Noah Mc-Nabb, as trustee for his wife, Mary A. interposed a claim . thereto.
    On the trial of this issue, plaintiff mfi. fa. introduced the fi.fa. with the levy upon the property above specified, and claimed said levy -also, including lot of land No. 826, in the 20th district of Decatur, and one hundred thousand brick, more or less. There was a further return indorsed on this fi. fa. by the Sheriff, showing a sale of the property levied on, and how the proceeds were appropriated, what amount each particular part sold for; and that the brick, when counted out, numbered seventy-four thousand six hundred and seventy-eight'.-
    Abner P. Belciier, the Sheriff who made the levy, testified, that at the time he made the levy, the corn, cotton and fodder were in possession of John M. Cole, one of the de•fendants, and were at the place where he lived, and which had been cultivated by him during the year 1854 ; that the door of one of the. houses in -which the property was found was nailed üp; but he did not remember whether it wras the house in which the corn or cotton was situated; that when he arrived at the house of defendant, he was not at home; but that he came while witness was there, and claimant was in company with him; he levied on the property, but did not ■take it off, for the reason that claimant informed him that he ■would claim it; that he sold the brick as levied on; (with '■the exception of a few thousand purchased by plaintiffs infi. jfa.;) that he authorized James McCullough to deliver the ''brick, who returned a few thousand delivered to claimant and •others; the purchasers made the return of the remainder, -and on their return and representations as to the number of brick, he made the entry and return on the ji. fa.; that of his own knowledge, he could not say how many brick there were, as he did not count them, but relied on the statements of plaintiffs in fi. fa. as they were truthful and honorable men; that at the trial of this case before the Petit Jury, he ■could not then make the return, because he had not estimated the number of brick that had been delivered; that he now relies on the statements of McCullough and the plaintiffs in „fi.fa. as to the number of brick sold and delivered; that he ■did not remember whether or not he gave instructions to Me■Cullough to count in the bats two for one on the delivery; ■'that the brick were sold in lots of ten thousand, and brought, on an average, less than five dollars and a-half per thousand; that the plaintiffs in fi. fa. allowed, as a credit on the fi. fa. .six dollars per thousand; they did this, as they said, because this would be all they ever .would be likely to get, for that ■ Cole was insolvent; McNabb lived about three miles from •Cole, and was his brother-in-law.
    The plaintiff in fi. fa. here rested. .
    The claimant then proved' by-James McCullough, that -the Sheriff' authorized him to deliver the brick from the kiln, .and he did deliver to McNabb some, and a few thousand to others, and that he made a return of them to the Sheriff; -that two bats were counted as one brick, and which he understood to be the rule in delivering brick; that there were •a good many bats; that he saw a negro of Mr. Law and Boot. Bruce hauling, and no white person was with them; that some of the brick were broken by running wagons over ■them, and a great number of bats were left; he cannot say whether more than one thousand or not; the bats are still ¡■there; that some 8 or 10 days before the Sheriff went to •make the levy, he Aras at the house of Cole and saAV the claimant and his hands Avith the hands of Cole that had made-the «rop, on the place picking out cotton; that he had been sick for some time before, ami Trad not been-out, and could not .say ho ay long claimant had been thus engaged. ■
    Benjamin Russell testified, that he put up two or three i,of the. eyes in the large kiln for Cole> and if the kiln Aras completed Avith 7 or 8 eyes, then, Recording to his estimation, the kiln would have contained 70 or 80 thousand brick; but he. dees not lcnorv Avhether the kiln was completed or not; he ¡bought of Cole the small kiln, estimated at 50 thousand .brick, and if it did not hold out, the deficiency was to be supplied from the large kiln ; that he hardly thought it would imve turned out 50 thousand brick ; that this kiln was-levied •en, and he and Colo canceled the trade; that he built for Cole a small chimney, and out of' the casing and outside brick ; that he is a briclcmason, and understands estimating ¡brick-kilns; that he thought Cole’s estimate too high; that in all kilrts there are á'great -many bats 'and salmon bricks.
    P. Bedford testified, that he finished putting up the large .lain, and on the plan in ay Inch it had been commenced, and ■that it contained 8 eyes; and from his count and calculation .¡of Cole, on his estimate, there were 80 thousand in it; it Avás . 22 bricks high; that he could not make the calculation liim■self. ‘ .
    Moultrie Maxwell testified, that he heard a trade between McNabb and Cole -in the..early part of the fall of 1854, in Avhich McNabb purchased of Cole all of his crop of corn, and fodder, and cotton, and stock of hogs, and cows, and his mules and wagon; that McNabb .paid for them in a note on Cole for several hundred dollars, but he could not remember the amount; that by the terms of the purchase, McNabb Avas ¡to have immediate possession; there Avas but a small number of stock of cattle; Cole had no negroes of his oavu ; the ne.groes he Avorked that year Avere hired; don’t recollect the exact time of the trade.
    
      The claimant here closed.
    . In rebuttal, plaintiff in fi. fa: introduced two fi. fas.: one-' in favor of Jesse Harper, against same defendants, the other in favor of James English against John M. Cole, obtained at: the same term of the Court, and same entries upon them as; the first named fi. fa:; also, the minutes of the Court, which-showed that the October Term of the Superior Court for-1854^ commenced on the 21st day of the month. (Judgments were obtained at that term upon which the fi. fas. were-.1 founded.)
    The cause being submitted to the Jury, a verdict was rendered, finding the property subject.
    Whereupon, claimant’s Counsel moved a rule for a new-: trial, on the following grounds, to-wit:
    1st. Because the Jury found contrary to evidence.
    2d. Because the Jury found contrary to law.
    8d. Because the Jury found contrary to law and evidence...
    4th. That the Counsel for plaintiff, in concluding the argument, stated that the evidence rvas, that the defendant had sold the whole of his property to the claimant pending the' suit, and which was a badge of fraud; and Counsel for claimant objected and called upon the Court to restrain the concluding Counsel in this statement. The Court stopped the-' concluding Counsel, who then stated that it was in evidence' that the defendant in fi. fa. pending the suit or just about: or after the judgment, had sold all his corn, fodder, cottom crop, stock of cows, hogs, mules and wagon; and that he-had no negroes; and inasmuch as he had sold the means by which he lived, he was authorized to conclude that he had' sold the whole of his property — of which the Jury would judge — that Counsel had not shown that defendant had any-other property. The Court decided that it was not competent for the Court to say what had been proven, and that he-would leave it to the Jury to determine — the Counsel still' contending that the evidence showed the sale of all the property of defendant to the claimant — to which Counsel did not object, after the ruling of the Court as above.
    
      6th. That the Court erred in charging the Jury, that if a>. debtor sold his .property to a -creditor bona fide and for a-valuable consideration, in payment of his debts, the property was not subject; but -if he sold to the debtor a large surplus of property, over and above the payment of the debt, then, it would be fraudulent against creditors, and subject to the-debts of the debtor.
    7th. That the Court erred in refusing, at'request of claimant’s Counsel, to charge that the levy and sale by the Sheriff of No. 826, in 20th district, and the brick, as appeared by the return of the Sheriff on the several fi. fas. before the Jury would be proper to be considered by them as evidence-against the statement of concluding Counsel for plaintiff, that the defendant sold the whole of his property pending suit,, and this was a badge of fraud. This request was after the general charge was concluded, and the Court directed the Jury to consider the bonafides of the case, and all the facts as proven.
    8th. That the Court erred in charging the Jury, that the-return of the Sheriff, as to the number of brick and amount of sale, was conclusive.
    The Court refused the motion -on all the grounds, and: claimant excepted.
    'Warren & Warren, for plaintiff in error.
    Law & Sims, contra.
    
   By the Court.

McDonald, J.

delivering the opinion.

The first three grounds taken in the mot-ioh before the Court. below for a now trial, have been abandoned.

When the plaintiff’s Counsel was stopped by the-Court, on the motion of claimant’s Counsel, for misrepresenting the evidence, by asserting that the defendant had sold ■ to claimant the whole of his property during tho pendency of' the suit on which plaintiff’s judgment was obtained, and he-explained by saying it was his inference, only from the evidence, there was no error in the refusal of the Court, after this explanation, to control him. There was some proof on which such an argument might be predicated, though slight,, certainly, taking the whole evidence together. The Jury could not have been misled after the explanation.

The Court erred in charging the Jury, that if the-debtor sold to his creditor property, in payment of his debt, and a large surplus over and above the payment of it, it would be fraudulent against the creditor, there having been no evidence made to warrant such a charge.

The property claimed was levied on by the Sheriff, at the same time that a tract of land and a parcel of bricks, which were sold, were levied on. The plaintiff’s Counsel argued, as an inference from the testimony, that the defendant had sold the whole of his property pending the suit; and claimant’s Counsel requested the Court to charge the -Jury, that the levy and sale of the land and bricks was proper evidence to be considered by them, against that inference. This evidence was certainly a clear reply to that inference; and the charge, as requested, ought to have been given; and the refusal to give it was error.

Under no rule of evidence that occurs to us, was the return of the Sheriff on the writ oifi. fa. showing the sale of the bricks, conclusive on the claimant. It would not have been conclusive on the plaintiff, for under the Judiciary Act of 1799 the plaintiff might have proceeded by attachment against the Sheriff, if he had been injured by a false return. By a later Act, he may traverse the Sheriff’s return in certain cases. This case is an illustration of the propriety and good sense of the rule which allows the inquiry; for the Sheriff’s own evidence impeaches the return, and shows that he intrusted to one of the parties an important duty, which he alone ought to have executed.

The judgment of the Court is reversed, and a new trial ordered.  