delivered the opinion of the court.

Plaintiffs brought this suit to recover the sum of one thousand seventy-five dollars; they issued an attachment, which was levied on a certain number of hogsheads of tobacco consigned to Wallace & Co., by John G. M'Murray. Said Wallace & Co., made garnishees, answered the interrogatories propounded to them by plaintiffs, and show, that they had already made to John G. M'Murray, advances to a large amount, to be deducted from the proceeds of the sale of the tobacco. During the pendency of the suit, John G. M‘Murray and one John S. Page, intervened to claim the tobacco, or the proceeds thereof, as their own; alleging that said tobacco had been sold by the sheriff in Kentucky, under an execution issued against the defendant; that John Gr. M'Murray was also interested in said tobacco for one-half; that previous to the time of the sale of the tobacco, the defendant had given his brother a mortgage on the same, to secure or indemnify him against certain security debts and liabilities, which John G. M'Murray had contracted and incurred for the defendant; that one Derastus Wilson, having obtained, in Kentucky, certain judgments against the intervenors and defendant, issued his executions which were levied on the said tobacco; and that, for the purpose of avoiding a sacrifice of the same, it was agreed between the parties that it should be sent to New-Orleans, to be there sold for the best price it could bring, and that out of the proceeds, the judgment should be discharged. They pray that the tobacco be decreed to belong to John G. M'Murray, or that *470the proceeds be paid over to the intervenors, to satisfy the judgments, and that the residue be paid over to John G. M'Murray. The plaintiffs joined issue, by alleging fraud against the intervenors, and averring that the sale spoken of, was done in order to screen the property from defendant’s creditors.

The counsel appointed to represent the absent defendant, also filed his answer, and disclaimed any right of ownership to, or interest in the property attached. There was a verdict and judgment in favor of plaintiff against defendant and intervenors, and the intervenors appealed.

The intervenors appear to be dissatisfied with the charge of the judge a quo to the jury, in which he stated, in substance, that it was his opinion that the plaintiffs could join the action to annul the contract, to that instituted for the recovery of their demand ; and that no objection having been made to the evidence introduced to prove the fraud, nor any exception taken to the answer in which the fraud is alleged, the jury were seized of the issue of fraud, as presented by the face of the pleadings. Although no bill of exceptions has been taken to the charge of the court, nor to the refusal of the judge to charge the jury, as requested by intervenors’ counsel; and, although the charge of the court only appears in a statement of facts, without reserving the exceptions made by the intervenors, we feel disposed to give our opinion on the legality of the charge. We think the district judge did not err; it is perfectly clear that the plaintiffs may join act-'on lo minul a contract, to the principal demand; (Louisiana Code, 1970), and they certainly had a right to V . , J , .. ,, . ,, 8 t oppose the intervenors claim, by pleading that the contract 011 which they relied was fraudulent, and simulated. The question of fraud raised in this case, was one particularly of 1 ... . .... , the province of a jury; and no exception having been taken to the pleadings, nor any objection made- to the evidence, jury was, undoubtedly, seized of all the issues presented to their decision.

Gh the merits, we are not ready to say that the verdict ^ie jury s0 cl®a>'ly erroneous as to require our inlerfer*471ence. The testimony adduced is contradictory; the evidence of Wilson, first taken under a commission, was introduced and read to the jury, without any objection on the part of the intervenors. It appears, also, from the answers of the garnishees to the interrogatories, and from an account of sales of the tobacco, filed in the suit, that the intervenors had already received advances above the amount of their liabilities, as shown by the testimony of Wilson, and on the whole, we think justice does not require that the verdict of the jury should be disturbed.

The intervenors did not think proper to apply to the lower court for a new trial; and we are unable to say that the district judge should have granted one, if it had been moved for; nor that he would have erred, if it had been refused. Judgments of inferior tribunals, founded on verdicts of juries, should never come before this court, without showing that an unsuccessful attempt has been made to obtain a new trial.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.