4 Mo. 279 | Mo. | 1836
delivered the opinion of the court.
The questions now raised for the consideration of this court are: 1 st. Did the circuit court err in refusing the continuance of course, and in adjudging the costs of the continuance upon cause, shewn against the defendant? Did the court err in giving the instructions asked for by the plaintiff? Was the verdict of .the jury against law and evidence? And did the circuit court err in overrul-
This cause might be readily disposed of without deciding the question first raised; and as the amount involved is a mere trifle, it would not now be looked into; but that itis a new question arising out of the statute, and may serve to settle and direct the practice under it hereafter, The counsel for the appellee insists that the 17th sec. of the insolvent debtors’ act, in providing for the summary trial, deprives the defendant of the right of continuance as of course, and that a continuance granted upon shewn, is always at the sound discretion of the court, and at the eosts of the applicant. For the appellant, it is contended that the insolvent debtors’ act “provides (up
The language of the 17 th sec. above cited, is that “the clerk of the court, before whom such allegations are filed, shall issue a summons as in other cases, requiring the said debtor to appear and answer the said allegations, and upon return of such summons duly served, the court, if the debtor do not appear, (or if he appear and the creditor elect to have issues made up) shall direct an issue or issues to be made up and tried by a jury in a summary way, without the form of an action to determine the truth thereof” &c. It seems to us that the act sufficiently explains itself in what it intends, by having the issues tried in a summary way. That no formal pleading or regular action to determine the truth of the allegations will be required, — not that the trial shall be immediate or without further time, when the defendant could not know whether the plaintiff would elect to file interrogatories or have issues made up for trial, and of course could not be prepared with evidence. To require that the debtor should come prepared at all points with his witnesses before he could know whether or not they would be needed; and when very often they would not and could not be examined, would impose (if not an impossibility) a hardship upon him, at war with the spirit of the. act, and in mockery of the relief it profeses to extend.— When the issues have been once made up in whatever summary or informal way, the case stands precisely as any other ordinary or formal action, and the right of the defendant to a continuance of course at the first term, will be as in other cases.
On the other points, the counsel for the appellee, have insisted with much earnestness and ingenuity, first that a correct construction of the insolvent debtors’ act, will sustain the instructions given for the plaintiff; and secondly, that if the instructions given for the plaintiff were wrong, they were corrected by these subsequently given for the defendant. It mav be conceded that the terms
There was no room for the jury to infer that the deed was made with intent to defraud the plaintiff, or other creditors, or to give to the creditors named, an undue preference, or made with intent to take the insolvent oath, or to secure to the defendant any unlawful profit or advantage thereby. We think, therefore, that the verdict of the jury was against the law and the evidence given in the cause, and should have been set aside, and a new trial granted. The instructions given for the plaintiff were too general, and not warranted by the evidence, It is not enough to show that they were in effect or might have been corrected by the instructions which were giv-enfor the defendant. They should have been expressly ■withdrawn from the jury. This point has been so adjudged-in this court.
Judge McGirk did not sit in this caso.