Young v. White.

meet all his debts, is valid against a subsequent mortgage to secure a previous debt; and if valid at the time of its execution, it is not rendered fraudulent by subsequent embarrassment of the grantor. Bracket v. Wait, 4 Verm. 389.

A voluntary conveyance, made by one indebted at the time, is not fraudulent, if the grantor had other property sufficient, out of which the creditors may make the amount of their debts. Arnett v. Wanett, 7 Ired. 41; Ib. 341.

A person indebted to a larger amount than his property, gave his son-in-law, soon after marriage, a slave. Held, that the gift was not fraudulent per se, though a jury, from these and other circumstances, might infer fraud. Toulmin v. Buchanan, 1 Stew. 67.

Mr. Justice FISHER delivered the opinion of the court.

This was an issue for the trial of the right of property, in the circuit court of Lowndes county, between the plaintiff in error, as a judgment creditor of R. C. Moore, and the defendant in error, claiming the slave in controversy, under a deed of trust founded upon the consideration of natural love and affection, by the said Moore, for his wife, to the claimant as her trustee.

A verdict and judgment were rendered in the court below for the claimant. A motion was made for a new trial by the counsel for the plaintiff in error, and was overruled by the court. The question presented by the record is, whether the deed as to prior creditors of the grantor is void.

The law presumes a voluntary conveyance as to such creditors to be fraudulent and void, and the party claiming under it must, by clear and satisfactory proof, rebut this presumption. It will not be sufficient, merely to show the fair intentions of the grantor, and that by good management the property by him retained was sufficient to pay his debts. The proof must show, that by the ordinary course of human transactions, the deed could not operate to hinder, delay, or to defeat the claims of prior creditors.

It is only out of favor to the party claiming under the deed, that it is not held by the courts fraudulent per se; and the rule

Matthews v. Montgomery et al.

having been relaxed, merely to let in the party's evidence to explain the transaction, it follows that the evidence must afford a sufficient explanation, by showing, that the property conveyed was so inconsiderable, when compared with that retained by the grantor, and the amount of debts he then owed, that it could not be supposed to endanger the safety of a debt, or to delay its payment.

In our opinion, the proof in the record was not sufficient to rebut the presumptions of fraud, created by the plaintiff's evidence.

We, therefore, reverse the judgment, and grant a new trial.

JOSEPH W. MATTHEWS, Governor, use, &c., vs. WILLIAM MONTGOMERY et al.

The condition of the bond given by the clerk of the circuit court, is that he shall faithfully perform those duties required of him by law. Held, that it is no part of his duties to collect or receive the fees due other officers of the

court.

He is not, in such case, the officer of the law to receive the fees, or agent of the officer for that purpose, but only the agent of the party paying.

IN error from the circuit court of Madison county; Hon. Robert C. Perry, judge.

Smith and Scott, for appellant.

A. H. Handy, for appellee.

Mr. Justice FISHER delivered the opinion of the court.

This was an action of debt at the relation of Warren W. Wadlington, assignee of Samuel M. Flournoy, late sheriff of Madison county, in the circuit court of said county, upon the official bond of William Montgomery and sureties, as clerk of said court.

Govan v. Binford.

The breach assigned is, that said Montgomery, as such clerk, collected certain fees belonging to the said Flournoy, and has failed to pay the same to the relator, Wadlington.

The only question made is, whether the action can be sustained on the bond. The bond is conditioned that the clerk shall faithfully perform those duties required of him by law. It is no part of his duties to collect or receive the fees due other officers of the court. He is not, in such case, the officer of the law to receive the fees, or the agent of the officer for that purpose, but only the agent of the party paying.

The demurrer was, therefore, correctly sustained. Judgment affirmed.

MARY P. GOVAN, Executrix, &c., vs. JOHN A. Binford.

It is the settled doctrine, that if a creditor, without the consent of the surety, enters into a contract with the principal, upon a sufficient consideration, to give him an extension of time for a definite period, or enters into any contract with the principal, which, in its consequences, may have the effect to give such an extension of time, the surety is released.

The cases of Wadlington v. Gary, 7 S. & M. 522, and Newell v. Hamer, 4 How. 692, cited and explained by the court, and declared applicable to this case. Held, that the agreement made for the extension of the time of payment, is not such a one as would release the securities.

In error from the circuit court of Carroll county; Hon. F. M. Rogers, judge.

The facts of the case are contained in the opinion of the

court.

Cothran and George, for appellant.

If the promise should be considered to have been made at the same time with the promise to give indulgence, no such contract as the law requires was then made.

Lucas could not have enforced the delivery of the negro, be

Govan v. Binford.

cause that promise was merely accessory to the principal promise which was, to pay the money at a future day, which is clearly insufficient. Vide 12 Wheat. 511; 3 S. & M. 647.

But regarding it as the principal promise, it is nothing more than to pay the debt in a particular way, or out of a particular fund, which this court has decided to be insufficient. Gary v. Wadlington, 7 S. & M. 522; Newell v. Hamer, 4 How. 692.

But Lucas's statement or admission should not have been suffered to go to the jury, because there is no proof that, at the time such declarations were made, he was the owner of the notes, or that they were in his possession. The witness says that Lucas was the owner of the notes.

Ownership is a legal conclusion drawn from facts; it is not a fact which a witness can testify to. Ownership is a mixed question of law and fact, like murder or larceny. It is not a fact, the knowledge of which is acquired by perception. It is a conclusion of the mind made by an act of reasoning, and in this case it is the conclusion the witness came to, from reading a certain writing, which should have been produced in court, or (a sufficient ground being laid for secondary proof) its contents should have been proven, so that the court and jury could have decided whether the writing made Lucas the owner.

But this was not done; the witness, it is true, speaks of its object and its purport to a certain effect. This is certainly not allowable, and should not have been permitted to go to the jury. The court and jury are the legal interpreters of its object and purport, and not the witness.

The court should not have permitted the answer of the witness to be read, for another reason. No sufficient steps had been taken to let in parol proof of its contents. The existence of the paper should not only have been proved, but it must be shown.

That the instrument is in possession of, or under the control of the party required to produce it. Smith v. Leap, 1 Car. & Kir. 48; 1 Phil. on Evid. 440.

In this case the writing was in possession of Lucas, and there is no such privity shown to exist between him and plain

Govan v. Binford.

tiff as would authorize notice to be served on her. A subpæna duces tecum should have been served on Lucas, or if without the State, his deposition should have been taken. 1 Greenl. Evid. § 559, and authorities there cited.

The admission of the testimony of Gen. E. L. Acie, to prove the communication made to him by Lucas, is evidently erroneous. It clearly comes within the rule laid down by this court in the case of Crisler v. Garland, 11 S. & M. 136, and cases there cited.

It can make no difference to say that Binford was present, because he was interested and could not reveal the declarations as a witness in court. It was error to permit witness to state any thing with reference to Davis's character after he had stated that he was unacquainted with his reputation for truth and veracity. Such knowledge is an indispensable pre-requisite to the admission of any statement by the witness, as to reputation or character. 1 Greenl. on Evid. § 461, and notes.

Watson, on the same side.

Sheppard, for appellee.

New trial will not be granted, unless the verdict be most clearly wrong, and inconsistent with the proof. Waul v. Kirkman, 13 S. & M. 599.

When the credibility of the witnesses has been passed upon by the jury, the court will not disturb the finding. Stovall v. F. & M. Bank, 8 S. & M. 307; 6 Cow. 682; 8 Ib. 223; 1 J. J. Marsh. 223-227.

The testimony of Lucas is, throughout, opposed to his former admissions. He is contradicted on a material point by Acie, and again by E. Hammons, and his credibility was clearly impeached. Crump is contradicted by Davis on the fact of the transfer of the notes, also by the admissions of Lucas while the holder of the paper; and again is directly contradicted by H. W. Tatum, on the point of his statements to Tatum as to the transfer of the notes to Lucas, in payment of a debt due Lucas.

It is perfectly clear, that the credibility of both these wit