(after stating the case). When a party to an action moves in the Superior Court, before the end of the trial term, for a new trial, on account of testimony discovered after the rendition of verdict, the motion is addressed to tlie sound discretion of the presiding Judge, and, if he rests his refusal to grant it solely upon his discretionary power, his decision is not reviewable in the appellate court. Carson v. Dellinger, 90 N. C., 226. So, where a party moves -for a new trial in the Supreme Court, on the ground that he has discovered, since the expiration of the trial term below, new and material evidence, that he could have the benefit of on a future trial, the higher Court exercises a purely discretionary, power in passing upon the motion. We therefore deem *367it proper to give notice, that this Court will, as a rule, in future, grant or refuse such motions without discussing the facts embodied in the petitions or affidavits of the moving party, as we cannot see that any good will be accomplished by contributing another to the volumes that have been written upon the exercise of legal discretion in deciding .■questions raised by applications for new trials. In this case, however, we find, that the new testimony which the defendant proposes to offer is intended only to contradict the feme plaintiff as to her alleged declarations to the witness. The testimony in chief is not separated in the statement from that elicited by cross-examination; but it may be, and indeed it seems probable, that her testimony on that point was given in response to a question from defendant. We can readily see how, if the motion were granted, and acted upon as a precedent, a majority of defendants in cases like this might lay the foundation for a new trial, by asking one charged with being a party to a secret fraudulent conveyance, to whom the witness communicated the fact that it was executed, and then proposing by some of the persons named in reply to contradict on a future trial. The proposed new testimony, as to the collection of fees for the services of the horse, would be offered confessedly to contradict statements made by the husband on cross-examination. The general rule is, that, when the new testimony will tend merely to contradict a witness examined on the trial, a new trial will not be granted the party wishing the benefit of it. Hilliard on New Trials, ch. 15, sec. 19; Graham and Waltman on New Trials, 498.

The defendant excepted to the refusal of the Court below to submit the more numerous and specific issues, tendered on his part, and the substitution of those passed upon by the jury instead of them.

The judgment can be predicated upon the facts found by the jury, as set forth in the record. It does not appear that *368the defendant was denied the opportunity to have the law applicable to any material portion of the testimony fairly presented and passed upon by the jury, through the medium of some one of the issues submitted. Emery v. Railroad Co., ante, 209. The exception cannot therefore be sustained.

The defendants insist that there was error in the refusal to give the instructions asked, numbered 6, 7 and 15, involving the question whether, upon the evidence, the Court should have told the jury that there was a presumption, not only that the wife had not paid bona fide for the property assigned to her by her husband, but that a transaction of the kind between husband and wife cast upon the plaintiff the burden of rebutting the presumption that it was fraudulent.

The doctrine of the burden of proof, in its application h> causes involving an issue of fraud, has led to their division into three classes(Hardy v. Simpson, 13 Ired., 132): First, when fraud appears so expressly and plainly upon the face of the deed as to be incapable of explanation by evidence de hors (as when it is manifest, from reading a conveyance, that it was made and was intended to secure the ease and comfort of a debtor embarrassed with debt at the time of its execution), there is conclusive presumption of fraud, and the Court, without the intervention of a jury, declares the deed fraudulent. Second, when the law raises a presumption of fraud because of the relation of the parties to a transaction, or the circumstances attending it, and if rebutting evidence is offered the issue must be left to the jury. But in the absence of such testimony, the Court acts upon the presumption, as when a person stands in certain fiduciary relations to others, such as arise out of reposing trust in his skill and integrity. The law raises a presumption in any transaction between the parties, that the party in the superior position has used it to the injury of the person in the inferior position. Bige-*369low on Fraud, 190; Lee v. Pearce, 68 N C., 76; McLeod v. Bullard, 84 N. C., 515; Kerr on F. and M., 385 and 386. Among the other cases classified under this head, are those in which a conveyance seems (nothing more appearing) to have been made for the ease and comfort of the debtor, but in which it is evident that some explanation might be given, and a different purpose and intent might be shown. Hardy v. Simpson, 13 Ired., 132. Third, as a general rule, where there is onty evidence of such circumstances as naturally excite suspicion as to the bona fides of a transaction, the issue involving the question as to its fraudulent character should be left to the jury, with instructions that such circumstances are badges of fraud, and should be scrutinized closely in passing upon the issue. Among these badges, as enumerated by the courts, are failure to register a conveyance, required by law to be registered, within a reasonable time after its execution ; the embarrassment of a grantor, and his failure to reserve sufficient property to satisfy his indebtedness; inadequacy of price; unusual credit given by one in failing circumstances ; secrecy in the execution of a conveyance; the fact that one involved in debt makes a conveyance to a near relation. Bump on Fraud. Con., ch. 4; ibid., p. 158. The last proposition embodies the usual but not the universal rule, however.

When a voluntary conveyance is attacked for fraud by the creditors of a donor, the burden is always upon the donor to establish the truth of circumstances that will repel the presumption of fraudulent intent, or by showing that the grantor retained other property sufficient to discharge all of his pecuniary obligations. Ibid., 286.

The possession of the wife is also prima facie the possession of the husband, and consequently raises a presumption of ownership in him, and where the wife purchases property during coverture whether from the husband or another, the; *370burden is upon her to show distinctly, that she paid the purchase money out of her own separate estate, not with the funds furnished by her husband. Bump on Fraud. G., 318. But this Court has held that certain combinations of the several badges of fraud, already mentioned, will raise a presumption of fraudulent intent, and make it incumbent on the party benefited by the alleged fraud to show the bona fides of the transaction. Counsel for the defendant cited especially the cases of Reiger v. Davis, 67 N. C., 185; Tredwell v. Graham, 88 N. C., 208, and McCanless v. Flinchum, 98 N. C., 358, in support of his position, and we propose, at a later stage of this discussion, to distinguish each of said cases from that at bar.

In applying some of the principles announced,"we find that his Honor instructed the jury as to the delivery :

“ Now, if the testimony satisfies you that Mrs. Brown accepted the bill of sale, and gave her husband authority to hold the property as her agent, they living together and he using the property as hers and for the benefit of the family, according to. her directions, this would be a constructive delivery.”

This instruction was given just after calling' attention to the testimony of the plaintiff' and her husband, and plainly left the recovery of the plaintiff to depend upon the question, whether their evidence should show to the satisfaction of the jury that there was a constructive delivery. The onus was-thus plainly thrown upon plaintiff to prove the delivery. The instruction was correct, too, as to what constituted a constructive delivery. Benjamin on Sales, secs. 1018 (and notes), 1043 and 1044 ; Jenkins v. Jarrett, 70 N. C., 255; Bartlett v. Blake, 37 Me., 124. The Judge also left to the jury the question, whether the testimony of the husband and wife combined (there being no other evidence as to the point) had satisfied them that there was a bona fide debt due from the former to the latter, and made the right of recovery dependent upon the weight given to their testimony as to the exist*371ence of the debt. 58 Am. Dec., 775. On this point, he charged as follows:

“ Was there an indebtedness by the husband to the wife? You have heard the testimony of both husband and wife on this point. If they have satisfied you, by a preponderance of evidence, that there was an actual debt'owing by the husband to the wife, he had a right to pay or secure the debt,” &c.

lie did not tell the jury that the law presumed that the deed was executed in good faith and for a fair consideration, but imposed the burden upon the plaintiff of showing a delivery, and also of establishing the consideration. The Judge was not bound to adopt the language of the defendant’s counsel.

lie went far enough when he required the jury, as a condition precedent to find for the plaintiff, to be satisfied of the truth of the fact mentioned by him, when those facts, if true, would rebut the presumption arising out of the relation of husband and wife, that he was in possession in his own right, and that she had not paid for the ’property with her own-funds. Indeed, it has been held by eminent authority incorrect to use the phrase “ burden of proof” in such connection as suggested in the prayer for instructions. The burden1’of proof, it is said,.never shifts, but is always on the party having the affirmative of the issue. The weight of evidence does sometimes shift in the progress of a trial. Green leaf on Ev., 74, and note; Am. and En. Ev. of Law, vol. 2, p. 655. This case cannot be made to depend on any. construction given to the language used in Reiger v. Davis, 67 N. C., 185, nor upon the more decided terms used in Tredwell v. Graham, 88 N. C., 208. It differs from both in the facts, that a stranger, who was present and wrote the bill of sale, was examined in the trial, as well as the husband and wrife, and there was an opportunity given to the jury, to weigh the testimony of all as to the good faith of the transaction in question. It differs from both of those cases, and *372also from McCanless v. Flinchum, 89 N. C., 358, in another respect. The husband and wife both testified that lie had owed her a certain sum of money, and had paid a portion, leaving still due a balance sufficient to pay, and that was used to pay an adequate price for the property described in the bill of sale. While the testimony as to the existence of the debt does not seem to be controverted by any other testimony, still the onus was put upon the plaintiff by a preponderance of testimony.

In Hodges v. Lassiter, 96, N. C., 351, Chief Justice Smith, for the Court, says: “But assuming proof, not controverted, to have been given of the indebtedness, the burden then rests on the plaintiffs, who allege, to prove fraud.”

If it were not true, as it is, that our case is distinguishable from Reiger v. Davis, we will find, by referring to the language used by Justice BoydeN (not to the syllabus), that the Court intended to state the rule of evidence laid down by Best in his work on the Principles of Evidence, p. 277: “ Where effective proofs are in the power of a party, who refuses or neglects to produce them, that naturally raises a presumption that those proofs, if produced, would make against him.” When the proofs are produced, the presumption is gone. The Court said in Reiger v. Davis, supra: “It is a rule of law, to be laid down by the Court, that when a debtor, much embarrassed, conveys property of much value to a near relative, and the transaction is secret and no one is present to witness the trade but these near relatives, it is to be regarded as fraudulent, but when these relatives are made witnesses in the cause, and depose to the fairness and bonafides of the transaction, and that there was no purpose of secrecy, it then becomes a question for the jury to determine the intent which influenced the parties, and to find it fraudulent or otherwise, as the evidence may satisfy them.” The relatives and a stranger were introduced, and an attorney named, with whom plaintiff had consulted. The Court evidently *373meant that the question, whether the fraud was shown by the defendant to the satisfaction of the jury, would, in our case, be left to the jury. Having pointed out the distinction between our case and that of Tredwell v. Graham, supra, it, therefore, is not necessary to question the proposition that the burden of proof shifted in that case.

Abbott, in his work, Trial Evidence, pages 171 and 172, says: “ It is held that, if the wife shows title to separate property or capital, not derived from him, the fact that she employs him upon it and supports him, does not raise a presumption of fraud. But his conduct in the business may be given in evidence on the question of fraud.” The conduct of the husband in managing her horses and other property was given in evidence.

It is not material whether the husband gave her any written evidence of an indebtedness, and how he invested or reinvested the money, if he owed her an honest debt and agreed to pay it. George v. High, 85 N. C, 99; Dula v. Young, 70 N. C., 450. We conclude, therefore, that the learned Judge who tried the case correctly interpreted tlie lawq when, after declaring the onus upon the plaintiff to establish the debt and prove the delivery of the property, he left the jury to determine what weight they would attach to the circumstances in the evidence that amounted to badges of fraud, and, mentioning each circumstance, especially cautioned the jury, because of the character of the evidence, to scrutinize the matter closely, and if they found that the husband executed the bill of sale with intent to hinder, delay or defraud his creditors, and that the wife participated in that intent, they would return a verdict for defendant on the first issue. Bump on Fraud. Con., ch. 4; Johnson v. McGuire, 11 Iowa, 151. After establishing the debt, it was proper to tell the jury that, though the husband intended to defraud his creditors, the validity of the transfer to the wife would not be destroyed unless she participated in the intent. *374Battle v. Maysant, S. E. Reporter. It was competent for plaintiff to show the advice of her attorney, as evidence of her good faith. Bump on F. C.,- 553.

There was no testimony tending to show that the bill of sale was intended as a security. On the contrary, the witnesses testified that it was a sale. We cannot see how the principle stated in Duller v. Jones, 6 Jones, 14, applies to the facts of this case. The Judge was not bound to leave the question, whether the bill of sale was intended as a chattel mortgage, to the jury, merely because the plaintiff did not show affirmatively that she gave her husband a written receipt for the debt.

The defendant objected to the order of the Judge, allowing the pleadings to be amended, to conform to the proofs, after-verdict. Superior Courts possess an inherent power to amend pleadings, and, under the provisions of The Code, have power to allow amendments, both before and after judgment. The only limitation' on the power is, that no vested right shall be disturbed, and that the cause of action or defence shall not be substantially changed. Knott v. Taylor, 96 N. C., 553 ; Gilchrist v. Kitchin,. 86 N. C., 20; March v. Verble, 79 N. C., 19. If the action in this case had been originally begun and prosecuted against the Sheriff individually, and not against him and his sureties on his official bond, it is obvious that the defence would have been the same made in this case, and the same issues would have arisen. The nature of the action has not been so changed as to surprise the defendant by making it necessary to establish any fact not already material under the issues submitted to the jury. The Judge could, in his discretion, refuse the motion to amend or grant it, with or without terms. The Code, §§ 272, 273; Carpenter v. Huffsteller, 87 N. C., 273; Reynolds v. Smathers, 87 N. C., 24.

*375We conclude, therefore, that the defendant has shown no error that entitles him to a new trial. The judgment must-be affirmed.

No error. Affirmed.

(dissenting). The facts developed at the trial, that the alleged consideration of the conveyance was an indebtedness arising out of the sale of the wife’s land ten years before, and the application of the moneys received therefor to the husband’s use; that he was on the eve of hopeless insolvency; that the deed was kept without disclosing the transfer of the property; that it was proved at a late hour of the night, under unusual circumstances; that specific values were not put upon each article; the continued possession and use of the personal property, with no indica- • tion of a change of title, sustaining the credit of the husband in making contracts upon the faith of it; the assent of the wife thereto, whereby he had the beneficial enjoyment as before; — these,in my opinion,raised a presumption of fraud between parties, husband and wife, thus dealing with each, which the appellant was entitled to have given as an instruction to the jury, requiring proof in rebuttal. If the agreement for the continued use of the property, after as before the making of the deed, had been part of the arrangement for the transfer, it would have rendered the deed ipso facto void, as securing an interest to the vendor. Rea v. Alexander, 5 Ired., (144.

The assent to such possession and use may authorize the inference of its being a prior condition, express or implied, which would avoid the deed, and certainly strengthens the presumption of the presence of this vitiating element in the transaction.

In Askew v. Reynolds, 1 D. and B.. 3(17, the following language is used by Gaston, J., quoted with approbation by Ruffin, C. J., in Foster v. Woodfin, 11 Ired., 339, in reference *376to a conveyance unattended with a change of possession: <! But such a repugnance between the transfer and the possession yet raises the presumption of a secret trust for the benefit of the grantor, which, while it admits, also requires an explanation, and which, unexplained or not satisfactorily explained, establishes the fraud.” Here there is none — the consent, to the use for his own benefit, of the vendee, his wife-The refusal to so charge is an error, in my opinion, entitling the appellant to a venire de novo.