The first question raised in this case is as to the competency of the testimony of the witness Balsey, “ that he tried to buy a house and lot for his step-daughter before he made a deed to her.” This testimony was excluded by his Honor, and we think correctly, as it- could have no tendency whatever to prove that the conveyances from Doak to Balsey were bona fide, or for a fair consideration. But had his Honor been in error in excluding this evidence of the witness, Balsey, the error was cured, by admitting the same proof by Mrs. Balsey, which evidence was admitted to be true, as the case states.
The question for a new trial on the ground of newly discovered testimony, was one of discretion for his Honor and cannot be reviewed in this Court. This is too well settled to require the citation of authority. ' As to the question of excusable neglect, as provided for in sec. 133 C. C. P., that section has no application. That provides for setting aside a judgment rendered at a previous term, and has no reference as to what the judge may do at the trial term; as there is no judgment rendered until all the questions raised at the term have been decided. We are at a loss to understand *273how it could be supposed, that sec. 133 of O. O. P. could be construed to warrant the course of the defendant’s counsel in this case.
The remaining question is as to the charge of his Honor, to which defendants excepted. The instruction excepted to was as follows: “ That the deed from Doak to Balsey would have been a sufficient defence had not the insolvency, or at least very great indebtedness of Doak at the time of the conveyance, been established, which presumptively tainted the deed with fraud, whereby it devolved upon the defendants to show affirmatively that the resale from Doak to Balsey was a fair, honest, bona fide transaction.” In this instruction we understand his Honor as informing the jury substantially, that the case as made by the plaintiff’s evidence would raise a presumption of fraud and devolve upon the defendants the burden of showing that in fact the transaction was fair, honest and bona fide, and that the question of the bona fides was a question for the jury upon the consideration of all the testimony in the cause.
Viewed in this light, and we can regard it in no other, the instruction was well warranted by the cases of Satterwhite v. Hicks, Busb. 105, and Reiger v. Davis 67 N. C. Rep. 185.
There is no error.
This will be certified.
Pee Cueiam.Judgment affirmed.