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Carter vs. Bennett.-Opinion of Court.

better reason. The principles we have established, showing the necessity of a cerditor obtaining a judgment before he has a right to impeach a conveyance, apply with all their force in resistance to the position here assumed by defendant. Nay, more, a judgment creditor, as such simply, has no title to the debtor's property till it is consummated by the execution of the judgment. It is surely not necessary to quote authority to prove that "in trover possession, whether rightfully or wrongfully obtained, is a sufficient title in the plaintiff as against a mere stranger." 10 Vt., 208, 11 Vt., 351.

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We have, in the progress of this opinion, exhausted argument to show that Carter, so far as the record informs us, was a stranger, and that it was perfectly immaterial to him what was the nature of Bennett's title or possession, if any title or possession at all was proved.

XX. The twentieth error assigned is that the court erred in refusing defendant's motion for a new trial.

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The motion in this case is based upon the allegation that there was error both in the ruling of the court upon the law and in the finding of the jury upon the facts of the So far as the questions of law are concerned, they have been presented to the consideration of this court in every variety of aspect. The skill and ingenuity of the eminent counsel having charge of the case, seem to have been tasked to the uttermost in exhibiting every possible question in every possible phase, and the court must take some credit to itself for the patience with which it has pursued the multiform enquiry which has been asked at its hands.

Has the appellant a right to demand of us to pass upon the facts? Have we a right to control the discretion of the court below in relation to its granting or refusing a new trial?

The question is not a new one before the appellate tribu

Carter vs. Bennett.-Opinion of Court.

nals in Florida; for it was presented to the late Court of Appeals, in the case of the United States vs. Jerrison & Foster, (not reported,) and decided adversely to the application. We see no reason to justify us in departing from that decision.

Although we have given to the subject as much thought and research as its importance seems to merit, we feel constrained, by the unusual length to which this opinion has been unavoidably protracted, to allude very briefly to the considerations which have influenced our judgments. The whole frame work of our judicial structure is derived from our English forefathers, and the practice of reviewing the decisions of a court, upon motions for a new trial, is wholly unknown to the judicial system of that country. Such also is the case with the Courts of the United States, while the courts of the several States seem to be about equally divided upon the question. The weight of authority, therefore, is clearly against the exercise of the right of controlling the discretion of the inferior courts on the subject of new trials.

When we consider the expediency of asserting such a right, we are at once met by the enquiry whether we are as competent to judge of the weight of evidence as the court and jury before whom it is given? One of the courts which accord the right to an Appellate Court of reviewing the decisions of inferior courts on this point, says: "Great deference is due to the judgment of the legitimate "triers of matters of fact." "That court has opportuni"ties greatly superior to those enjoyed by this court, of "determining whether the verdict is against the weight of "testimony." (7 Missouri, 221.)

In this admission, we conceive, rests the whole argument against the expediency of the exercise of this power. Every one at all familiar with the incidents of a jury trial,

Carter vs. Bennett.-Opinion of Court.

must admit the impossibility of conveying to an appellate tribunal a perfect transcript of the evidence given to a jury. The tongue of the witness is not the only organ for conveying testimony to the jury; but yet it is only the words of a witness that can be transmitted to the reviewing court, while the story that is told by the manner, by the tone, and by the eye of the witness, must be lost to all but those 'to whom it is told. The testimony of one witness, given with calm self-possession, an erect front, and an unhesitating accent, imports verity as strongly as a record, while the confusion, the hesitation, and trembling of another, will contradict to the eye what his faltering tongue has uttered to the ear. Yet the testimony of each will stand alike before the court of review.

For this reason mainly, and for others which we need not adduce, we deem it our duty to adhere to the practice, sanctioned by the most venerable authorities, of leaving the question of granting or refusing motions for new trials to the Judge who has had the privilege of hearing the evidence.

The points assigned for error, subsequent to the twentieth, were not noticed in the argument, and are understood to have been abandoned by the defendant. But as they are upon the record, it is our duty to pass upon them, which we shall do in the briefest possible terms.

XXI. The twenty-first point denies he jurisdiction of the court, which question we have disposed of in our consideration of the first and second points.

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XXII, XXIII. The twenty-second and twenty-third points deny the right of Judge Douglas, who was the Judge of the Eastern Circuit, to sit in the case, which was tried in the Western Circuit.

The State Constitution provides, in the 7th sec. of the

Carter vs. Bennett.-Opinion of Court.

5th article, "That the Judge of the several Circuit Courts "may hold courts for each other."

XXIV. The twenty-fourth point seems to have reference to the same point, and the assignment is, therefore, not sustained.

XXV. The twenty-fifth point presents an objection to the verdict, upon the ground of excessive damages. This was a matter proper to be brought to the attention of the court below on a motion for a new trial. We have nothing to do with it.

XXVI. The twenty-sixth point is obnoxious to the same objection.

XXVII, XXVIII. The twenty-seventh and twentyeighth points are mere recapitulations of others already decided upon.

The true elements of this controversy, when divested of the multitudinous wrappings in which it has been presented to our notice, (the printed record making a well sized octavo volume,) are very few and very simple. Bennett was in possesion of the slaves when they were taken from him by Carter, and converted by Carter to his own use. Whether Bennett's possession was rightful or not, Carter had no right to divest him of it munu forti, without showing that he was a judgment creditor or a mortgage creditor of Jordan's. He failed to do both, and stands before the court simply as a stranger, intermeddling without authority with the possession of another.

Having reviewed in detail the many complicated questions presented upon the record of this case, we conclude by saying, we find no such error in the proceedings in the court below as to require us to set aside the judgment, and we shall accordingly direct the judgment to be affirmed, with costs.

So. Life In. & Tr. Co. et al. vs. Cole.-Statement of Case.

Let the judgment be affirmed, with costs, and the case remanded to the court below.

NOTE BY THE REPORTER.-In the 8th line of the Head Notes, on page 283, instead of "former," read latter.

THE SOUTHERN LIFE INSURANCE AND TRUST COMPANY, AND THE STATE OF FLORIDA, PLAINTIFFS AND APPELLANTS, AND CHARLES COLE, RESPONDENT.

An Appeal in Equity is substantially a re-hearing of the cause, and the appeal opens the whole case to the Respondent;-and although the Appellant may show that the view taken by the Court below is erroneous, yet the Respondent is at liberty to show, if he can, that upon the whole case, no other decision can be rightfully made of the case in the Appellate Court.

The act of February 10th, 1832, gives authority to the Appellate Court to pronounce "such judgment, sentence or decree, as the Court below ought to have given." This power could never be exercised, if the Court had not the right to look into the whole case as it is presented in the Record. But though this Court will re-examine questions decided against the Responddent as well as such as passed sub silentio, or consider points made here for the first time, if raised by the pleadings and proofs, yet care must be taken that neither party be permitted to surprise or mislead his adversary, or to make objections which, if made in the Court below, might have been obviated.

It is well settled that the members or shareholders of corporations created for private emolument, are not admissible as witnesses for such corporations on account of their direct and certain interest. The liability of the company for costs,is a sufficient interest to render a shareholder incompetent as a witness. Time in a Court of Equity is rarely considered as material where the value of the property contracted for and the circumstances of the parties remain unchanged, but performance will not be decreed where time has elapsed and an important change in respect to value or circumstances has taken place. In sales of stock in the public funds, time is of the essence of the contract; and, in all cases where time is material, or of the essence of the contract, the rule in equity is the same as at law-that is, if the contract is not carried in

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