15 S.E. 881 | N.C. | 1892
W. B. Rodman, an attorney, held a claim for collection in favor of one Thomas against one Gaskins. He brought suit against Gaskins, and on the urgent solicitation of Gaskins postponed the hearing before the justice of the peace for several days till 6 February, at 10 (67) o'clock a. m., when Gaskins induced him to agree to a postponement of the trial till after 12 o'clock by a promise to try to borrow the money before noon. At 11 o'clock of that day Gaskins executed a deed of assignment, preferring other creditors, whose debts will exhaust all of his property. The attorney subsequently obtained judgment for his client and caused the defendant sheriff to seize the goods on execution issued on his debt. The sheriff is sued for making this seizure. The other material facts are stated in the opinion.
There was a verdict and judgment thereon for the defendant, and the plaintiff appealed. The charge of the court embodied a full, clear, and for the most part, correct statement of the law applicable to the testimony. But in response to a request of counsel made when the instruction proper was finished, the jury were told that a circumstance shown in evidence was a strong badge of fraud. The testimony so characterized was to the effect that the debtor had asked the attorney of a creditor to postpone taking a judgment against him before a justice of the peace, and that while the attorney was holding the case open till 12 o'clock *47 of the same day to see if the debtor could borrow the money to pay his debt, as he had proposed to do, the debtor made an assignment at 11 o'clock, preferring other creditors, and making no provision for the payment of the claim upon which the attorney had sued.
The trial judge must, upon the request of counsel, and sometimes his own motion, instruct the jury upon the weight of testimony in cases of this kind, where it is sufficient to raise a presumption of fraud, "but he is not at liberty to say to the jury that any fact, proved or admitted, that does not raise a presumption of the truth of the allegation of fraud, is a strong circumstance tending to establish (68) it." Berry v. Hall,
We think, therefore, that there was error, for which the plaintiff is entitled to a
NEW TRIAL. *48