Bowland v. Wilson, Palmer & Co.

Stone, J., delivered the opinion of the Court. This is an appeal from the action of the Circuit Court for Somerset County overruling a motion in arrest of judgment. The motion was made in a proceeding of involuntary insolvency, and the material facts are these: Wilson, Palmer & Co., and Young, Creighton & Diggs filed in January, 1889, a petition against Bowland, charging that they were'' creditors of Bowland to an ³¹¹ amount exceeding two hundred and fifty dollars; that Bowland on and before the 2nd of October, 1888, was a merchant doing business in Somerset County, and that their debts had occurred prior to that time; that said Bow-land, in his own right, was possessed of real and personal property in said county, and that he also held in his own right a mortgage from a certain A. Goodrich and wile for two thousand dollars; that the said Bowland being insolvent, and in contemplation of insolvency, and within sixty days before filing the petition, did assign said mortgage and other of his personal property to his wife, Evelyn C.; that said assignments did contain and work an unlawful preference, and were made with the intent to delay, hinder, and defraud the creditors of the said Bowland, and. especially the petitioners; and that said assignments, conveyance, and transfer and the preferences therein contained, are unlawful, fraudulent, and void. The petitioners prayed for process against Bowland, that he might be declared an insolvent, and the assignments and conveyances declared void.

Bowland, the defendant, appeared and answered this petition. In his answer he admitted his indebtedness to the petitioners, and that he was prior to 2nd October, 1888, a merchant in Somerset County, and that on that date, to wit: 2nd of October, 1888, he was insolvent. He also admitted the execution of the mortgage from Goodrich and wife to himself, and he also admitted the assignment of said mortgage for a good and valuable consideration, and in good faith, to his wife Evelyn. But the defendant denied that he was a merchant at the time of making the assignment of the mortgage, to wit, on 23rd of ^November, 1888, but alleges that the sheriff seized his goods, and closed his store on the 2nd of October, 1888, and that he had carried on no business as a merchant since.

He denied that he ever ³¹² transferred to his wife any personal property as set forth in the petition. He also denied that he held the mortgage debt in his own right, but claims that at the time of the assignment, and before, his wife, Evelyn, was the real owner of said debt, and her right to it would have been enforceable in equity. He denied that he had made any assignment, transfer, or conveyance of his property with intent to delay, hinder, or defraud his creditors. These are the material facts set forth in the petition, and admitted or denied by the answer.

Upon the filing' of the answer, a jury appears to have been empannelled, which found a verdict “for the petitioners.” The defendant, Bowland, thereupon moved in arrest of judgment and filed the following reasons: 1st. Because no issues were made up and submitted to the jury for their determination. 2nd. Because the Court cannot discover from the verdict what issues, if any, were passed upon by the jury, and what the jury found upon the issues, if any, in the cause. 3rd. Because of other errors and irregularities in thh verdict, and apparent upon the face of the record.

The first reason assigned by the defendant for arresting this judgment, — that no formal issues were framed,— cannot now avail him. It is certainly true that, in all cases of this sort, formal issues should be framed, which should clearly present the facts in dispute; and it is the right of either the petitioners, or the defendant, to demand such issues. It is also the duty of the Court, upon such demand being made, to see that the proper issues are made and submitted; and it is a good ground for exception if the Court refuses so to do. But, if the goarties elect to go to trial ug>on the petition and answer, they cannot afterwards complain of the want of formal issues.

In this case