117 Ala. 285 | Ala. | 1897
This appeal is from the original judgment rendered in the cause, and the only error assigned is that the court below improperly refused to grant a new trial therein on motion of appellant. The statement in the bill of exceptions that “the court refused to grant said motion” is a sufficient statement of the decision of the court rendered on a motion for a new trial under Acts of 1890-91, p. 779 ; the statute not requiring that the order or judgment of the court granting or refusing the motion shall be set out in full in the bill of exceptions.
The contest was between a vendor of chattels and a sub-purchaser from his alleged fraudulent vendee, and was instituted by the filing of an affidavit and claim bond by appellant to try the right, of property in the goods, which liad been seized under a writ of detinue sued out by appellee. It has been repeatedly declared by this court that to authorize the rescission of a sale of chattels on the ground of fraud on the part of the vendee, it must appear, (1) that the purchaser was at the time of the transaction insolvent or in failing circumstances ; (2) that at the time of the purchase of the goods he had a pre-conceived design not to pay for them, or no reasonable expectation of being able to pay for them ; (3) that he intentionally concealed these facts, or made a
The judgment of the circuit court is reversed, and a judgment here rendered granting a new trial, and remanding the cause.
Reversed and remanded.