It was too late to move to quash the proceedings for want of notice, after the parties had appeared, the issue had been formed and they had announced themselves ready for- trial. The motion to dismiss was rightly overruled. But the judgment upon the merits cannot be maintained. The issue was properly framed by the Justice ; and as there were no pleadings .in the District Court, the trial must be deemed to have been had upon the issue thus framed. It was in proof that the defendant had owed the judgment debtor ; but he -produced the receipt of the latter of a date anterior to the service of the writ of garnishment, containing a full acquittance. There was no *401•evidence to falsify this receipt, or to cast suspicion upon the honesty of the settlement it evidenced, except the single circumstance that it bore date on the day before the rendition ■of judgment. That, of itself, we do not think sufficient to warrant the Court in assuming, and the jury in finding it false and fraudulent. It might have been a very cogent circumstance in connexion with others ; as that the debtor had no other property subject to execution, confidential relations subsisting between the parties ; the proof of any facts or circumstances tending to cast doubt on the fairness of the transaction. But there was no such proof. The affidavits of the parties, made in instituting or conducting the proceedings, were not evidence for them. The jury were required to decide the issue upon the evidence adduced upon the trial; and that we do not think sufficient to warrant the verdict. The judgment is reversed and the cause remanded.
Reversed and remanded.