
    Wm. H. Weaver and others vs. Jonathan Wright.
    
      Insolvent Debtors' Act — New Trial — Fraudulent Confession of Judgment.
    
    
      A debtor’s application, for tbe benefit of tbe Insolvent Debtors’ Act was resisted on tbe ground that a judgment confessed by tbe applicant to bis father was fraudulent in part, and upon suggestion filed, tbe jury so found: — Held, tbat tbe verdict could not be sustained upon tbe evidence ; tbat a confession must be taken to be bona fide until tbe contrary be made to appear; tbat circumstances of suspicion were insufficient’ to justify a verdict finding it fraudulent as against creditors.
    BEFORE WARDLAW, J„ AT DARLINGTON, SPRING TERM, 1860.
    The report of his Honor, the presiding Judge, is as follows
    “ This was an issue made under a suggestion contesting the application of the defendant for the benefit of tbe Insolvent Debtors’ Acts. The plaintiffs are some of his many judgment creditors.
    “ He was arrested under ca. sa., December 24,1855, and he filed a schedule, January 1,1856. The suggestion was filed at the next term or in the vacation following, and the issue was three years on the docket before it came to trial. No demurrer, nor motion to strike out, nor refusal to plead, had before the call for trial, intimated any objection to the vagueness of the charges made in the suggestion. Under these circumstances, I could not conduct to any profitable result the remarks which were made about what was obvious — the want in the suggestion of those exact specifications which might give to the defendant explicit notice of the particulars alleged against him, and might confine the inquiries on trial to such particulars. The case seemed to be regarded as one of expectation; witnesses by scores were in attendance, and some of them were put up four times ; and Saturday, after four days’ hard work, the end was reached, which, I think, if the case had been properly understood and prepared in the beginning, might just as well have been reached in six hours from the opening.
    “The specifications were, in the opening and afterwards, ranged under four heads.
    “ 1. Undue preference. Five particulars under this head occupied much time in examination of witnesses and argument ; but it is unnecessary now to speak of them, for all were (very properly, I thought) overruled by the jury.
    “2. Fraudulent removal of slaves from the State. This, too, vanished, when, after great consumption of time, the dates and exact circumstances were ascertained.
    “ 3. Omissions from the schedule of money and choses in action. Under this head there was a tedious and minute investigation of the defendant’s affairs, in which the plaintiffs undertook to show what he had received, or ought to have received, from May, 1850, until his arrest, amounting, as their statement showed, to thirty-two thousand two hundred and forty-eight dollars and fifty-three cents, but, as I thought, was proved to seventeen thousand seven hundred and forty-six dollars and forty-nine cents; and the defendant undertook to show what he had expended, or might be supposed to have expended, in 1854 and 1855, amounting to nineteen thousand eight hundred and thirty-seven dollars and forty-eight cents, as his statement exhibited, but, as I thought the proof showed, to fourteen thousand three hundred and ninety-four dollars and eighty-two cents, besides losses on cotton, losses on furniture sold by the Sheriff, travelling expenses, and a doubtful payment made by a bill of exchange. The result attained was wholly inconclusive — a calculation of probabilities, about which there might be honestly wide differences of opinion, a scramble, without the definite purpose which should characterize legal proceedings, a lamentable waste of time in a district where the delay of suitors has amounted to almost a denial of justice. The jury found nothing against the defendant under this head.
    “ 4. Fraudulent confessions of judgment to his father, and sale under them, to the father, of land and negroes, amounting to a fraudulent assignment of the defendant’s property. Under this head, a verdict against the defendant was rendered, finding that one confession was in part fraudulent, and to this matter only the appeal of the defendant relates.
    “Solomon Wright, father'of defendant, is a planter, of comfortable means, making forty bales of cotton or more every year; has nine children, all grown but one; lives between Darlington and Society Hill. The defendant acquired some education, married Miss Herron, had a plantation in the neighborhood of his father worth about three thousand dollars, and six or seven negroes; went into the business of keeping a country store, in partnership with D. L. Stuckey; bought and sold cotton on his individual account for two or three years; closed his mercantile operations in 1852, and sold his plantation on Swift creek for two thousand six hundred dollars, of which about seven hundred dollars was. paid to him in his own paper; bought a place in the neighborhood of Timmonsville for about three thousand six hundred dollars, of which sixteen hundred dollars, with interest, was in 1856 paid by his surety, John F. Ervin, and about six hundred dollars is now in the judgment obtained against him by Wm. H. Weaver; built a new house, gin-house and out-buildings, and got fine furniture, all at the cost of four or five thousand dollars ; made twenty-five to forty bags of cotton, mostly with hired hands, in each of the years 1853, ’4 and ’5, and got large advances from factors by holding out to them severally the prospect of getting more cotton than he ever had; went to Alabama, or some other place in the West, several times in ’54 and ’55, and spoke of leaving; bargained for a place there’; sold a negro man, December, 1854, for nine hundred and seventy dollars; took off one of his negro women and a girl, when the property left was far more than enough to pay all judgments then obtained against him ; and for his means dealt largely in drafts, notes in bank, and the other expedients of struggling insolvency.
    “Solomon Wright managed the property of his brother, Abraham Wright, a person deemed non compos. In the winter of 1854 and ’5, the spring following, the defendant, by permission of Solomon, his father, took to the West a negro woman, Mahala, and her two children, of the property of Abraham Wright, and, after some clamor raised by the other brothers and sisters of Abraham about their removal, the defendant brought them back and restored them to the possession of his father.
    “July 2, 1855, there were only two judgments unsatisfied against Jonathan Wright, to wit: one for about three hundred dollars in favor of E. A. Mclver, and another, C. Coker and Brother vs. W. L. Morse, Jonathan Wright, and L. P. Eollins, which had been obtained on a prison bounds bond, wherein the two latter were sureties for Wm. L. Morse. Jonathan Wright paid to the Sheriff Mclver’s execution in full, and the Sheriff having been previously instructed by C. Coker to levy under the fi. fa. in his case, but having made no levy, Solomon Wright, on-the 2d day of July, 1855, procured for valuable consideration an assignment to himself of the Coker j udgment, got from Jonathan Wright two confessions of j udgment, and directed immediate proceedings for collection of the whole. Of these two confessions, one was for four hundred and ninety-eight dollars and twenty-one cents, the amount of several notes made by Jonathan Wright, on which Solomon was liable as surety or guarantor, and which were’ for collection in the hands of Mr. Haynesworth, who took the confession. The evidence seems to remove all just ground for suspecting the fairness of this. The other confession was for five thousand and eighty-seven dollars and twenty cents, besides interest and costs, and in this are the two items of one thousand and four hundred and forty-nine dollars and five hundred and fifty dollars, which have been found fraudulent by the verdict.
    “In August, 1855, Jonathan Wright gave to the Sheriff an acknowledgment of levy, and Solomon gave to the Sheriff' a written release of liability in case Jonathan should not produce the negroes for sale. September 3,1855, the Sheriff sold Jonathan’s land for five thousand six hundred dollars, (a full price,) and applied the proceeds to Solomon’s execution, thqre then being no other executions against Jonathan. Tbe same day Jonathan made’to his father, Solomon, another confession of judgment for one thousand one hundred and eight dollars and sixty-three cents, intended to secure the father in respect to sundry notes, therein specified, on which he was surety for Jonathan. All objection to this seemed to be removed by evidence.
    “October 1, 1855, the Sheriff sold to Solomon Wright the three remaining slaves of Jonathan for two thousand three hundred and five dollars, and January 8,1856, he sold Jonathan’s furniture, tools, cattle, &c., for two hundred and eighty-six dollars and thirty-one cents; of. which Solomon Wright bought to the amount of ninety dollars and twenty cents, and Adams and Croswell, two brothers-in-law of Jonathan, bought the remainder. The sales were all fair, and there was competition in the biddings.
    “The total amount of the sales was eight thousand one hundred and ninety-one dollars and thirty one cents. The Coker case and the two older ones of Solomon Wright were satisfied in full, and six hundred and four dollars and twenty-nine cents applied to his last case. If only five hundred and fifty dollars were struck from the largest case, the last one would be nearly satisfied; if one thousand four hundred and forty-nine dollars were struck out, a considerable sum would go to other creditors.
    “Other writs offi.fa. were entered against Jonathan Wright after the sale in October, 1855, to wit:
    «1855.
    «Oct. 6. — J. H. Adams (his brother-in-law) vs. Jonathan Wright, on confession, two hundred and ten dollars and thirty-six cents, besides interest and costs.
    « 12. — G. A. Croswell (his brother-in-law) vs. Jonathan Wright, on confession, ninety-one dollars and fifty-nine cents, besides interest and costs.
    
      “ Oct. 13. — W. H. Weaver vs. Jonathan Wright, on confession, five hundred and seventy-seven dollars and seventy-two cents, besides interest and costs.
    “ 18. — Bank of State of South Carolina vs. Jonathan Wright, on confession, four hundred and thirty-four dollars and thirty-two cents, besides interest and costs.
    “Nov. 10. — S. &. L. Mowry vs. Jonathan Wright, judgment, Fall term, 1855, one thousand three hundred and fifty-four dollars and fifteen cents, besides interest and costs.
    “ 10. — E. H. Bodgers & Co. vs. Jonathan Wright, judgment, Fall term, 1855, two thousand nine hundred and seventy-eight dollars and twenty-six cents, besides interest and costs.
    “ 10. — J. It. Davis vs. Jonathan Wright, judgment, Fall term, 1855, one hundred and twenty-eight dollars and forty-two cents, besides interest and costs.
    
      “ 10. — James Wilde vs; Jonathan Wright, judgment, Fall term, 1855, one hundred and thirty dollars and thirteen cents, besides interest and costs.
    “ 10. — Perry Moses vs. Jonathan Wright, judgment, Fall term, 1855, one hundred and thirty-seven dollars and seventeen cents, besides interest and costs.
    “ 10. — Ben Hatchell, vs. Jonathan Wright, judgment, Fall term, 1855, three hundred and sixty dollars and thirteen cents, besides interest and costs.
    “ 10. — L. P. Eollins vs. Jonathan Wright, judgment, Fall term, 1855, ninety-one dollars and sixty-one cents, besides interest and costs.
    “1856.
    “Ap’110. — Bank of State of South Carolina vs. Jonathan Wright, judgment, Spring terra, 1856, four hundred and three dollars and two cents, besides interest and costs.
    “April 10. — S. H. Pressly vs. Jonathan Wright, judgment, Spring term, 1856, one hundred and ninety-six dollars and thirty-six cents, besides interest and costs.
    “Oct. 30. — John Phillips vs. Jonathan Wright & Jno. E. Ervin, one thousand seven hundred and forty-six dollars and twenty cents, besides interest and costs.
    “Since his purchase at Sheriff’s sale, Solomon Wright has sold to Josiah Coker the land that was Jonathan’s for four thousand five hundred dollars, and he has sold of the slaves, Lewis for nine hundred and five dollars, and Hester for five hundred dollars, to Wm. H. Herron, father of Jonathan’s wife, who bought as her trustee under some settlement. Allen, Solomon keeps, and Jonathan, with his family and the slaves bought by his wife’s trustee, lives in the neighborhood of his father, Jonathan having betaken himself to the study of medicine, and exhibiting special neatness in his dress.
    “The assault of the plaintiffs upon the confessions of judgment consisted only of the proof, in vexatious detail, by piece-meal, a little from one witness and a little from another, of the circumstances that have been summarily stated above. In defence, the defendant undertook to show the consideration of the confessions severally. He satisfied the jury as to two. As to the third, the largest, he adduced the clerk, Mr. Brunson, before whom the confession was made, whose testimony was in substance as follows:
    “‘The parties came to*me, on sale-day, when there was crowd and hurry. Solomon seemed out of temper with Jonathan, and Jonathan seemed at first unwilling to make the confession. Solomon produced notes, the same that are now exhibited to me, acknowledged to have been signed by Jonathan; I made the calculation of each; I marked on it New note given; on this paper (exhibiting a dirty half-leaf carelessly torn off, on which were figures in ink, in Brunson’s handwriting, and a pencil calculation, said to be the handwriting of Chancellor Inglis, then of counsel for the defendant — of which paper no copy has been furnished to me, although I specially requested it) I added up the items, and then I took a new note for the whole from Jonathan to Solomon, and on that the confession of judgment. The five hundred and fifty dollar item there was tío note for; what it came from, I cannot now recollect, although then it was explained to me. The fourteen hundred and forty-nine dol- ■ lar item the parties said was for Mahala and her children. Their conversation was to the effect that Solomon had sent off these negroes by Jonathan, and Jonathan had sold them to a man who had failed; a fuss was made about Abraham Wright’s property ; Solomon sent Jonathan to bring back the negroes, and they being found in the hands of a second purchaser, Solomon had been compelled to advance his money to buy them again.’
    '' The notes which Mr. Brunson referred to proved to be in the handwriting of Jonathan; their dates ran from ’50 to ’55; they were all payable to Solomon, except one, which was signed by Jonathan and Solomon, payable to James H. McIntosh, on which Solomon was proved to have been surety, and to have made payment. They all looked fair, although the plaintiffs suggested that they might have been fabricated for the occasion.
    “ The defendant adduced a receipt, signed by Jonathan, in the following words: ' Received of Solomon Wright one negro woman named Mahaly, and two children, which negroes I am to sell, and pay over the proceeds to said Solomon Wright, after taking off the expenses of the negroes. January 30, A. D. 1855.
    “'JONATHAN WRIGHT.’
    
      “ (Indorsed ' new note.’)
    
      “Concerning the five hundred and fifty dollars, there was some suggestion at the bar made in reference to a bill of exchange, but the attempted proof did not correspond with the suggestion, and I am now ignorant of what, for the defendant, it is said this item was founded on.
    “ Concerning the one thousand four hundred and forty-nine dollars, there was a suggestion made of an absent witness who could have told all, and in argument the jury were told that Jonathan got part [indefinite] of the money, and was liable to his father for the whole. The plaintiffs pressed the inquiries; if Jonathan got the money, and did not account to his father for it, what has become of it, as it is not in the list of what he says have been his receipts ? If he did not get the money, where is the note or draft that he got ? Why should he pay for negroes that his father now has ? The defendant, as it seemed to me, was quite as fearful of the charge that he had omitted the money in his schedule, as of the charge, on the other hand, that he had confessed without consideration.
    “ My instructions to the j ury submitted all facts to them. In reference to the confessions of judgment, I held that, although in another proceeding a judgment confessed might be set aside, questions concerning such a judgment, fraud imputed to it, its consideration, and the motives that led to it, might be investigated in an application like this, when they come collaterally into the issue, just as such questions in reference to a deed would be investigated:
    “ That fraud was not to be presumed in a confession more than in another transaction, but if, by circumstances proved, suspicion had been induced, proof of consideration might be required to remove the suspicion :
    “ That as to the two items most spoken of, the j ury were to say whether their belief of fraud had been raised by the evidence, and not removed by the explanations that had been given.
    
      “In reference to Mahala and her children, I explained that a demand by Solomon against Jonathan might have justly arisen, either from Jonathan’s receipt of money for which they were sold, or from his violation of instructions given to him as agent, from which loss ensued to Solomon, his principal. Sale upon credit, when he was directed to sell for cash, I held would make him answerable.
    
      “ I was of opinion that a lien upon a debtor’s estate given to one creditor by his confession of a judgment, which was in part without consideration, was to the extent of such part a fraud upon other creditors, if it appeared to have been made with fraudulent intent, and would of itself debar the debtor from the benefit of the Insolvent Lebtofs’ Acts; but I thought it unnecessary to say so, and, looking only to the circumstances of this case, held that such a fraudulent confession, followed by a sale under it, was a fraudulent sale or assignment which debarred the debtor. I directed the jury to inquire whether, under any items fraudulently introduced into a confession to his father, which the defendant had made for the purpose of hindering, delaying or defeating other creditors, the father had received property or money which would have come to other creditors, if such items had not been so introduced.
    “The jury returned from their room after considerable time for deliberation, and their foreman' reported that they found the items, five hundred and fifty dollars and one thousand four hundred and forty nine dollars, to be fraudulent. The senior counsel for the plaintiff then wrote the verdict, adopting nearly, but not precisely, the form I suggested. After the verdict had been rendered, the defendant’s counsel moved his discharge, notwithstanding the verdict. I refused the motion, conceiving that the verdict, under the reference which it makes to the suggestion, might be considered to establish against the defendant such fraud, or fraudulent assignment, as is fatal to his application.”
    
      The defendant appealed, and now renewed his motion for his discharge, before this Court, on the ground :
    Because the finding of the jury, upon the suggestion and specification thereunder, were not sufficient in law to prevent the applicant from obtaining his discharge under the Acts of Assembly provided for the discharge of insolvent debtors, and his Honor should have granted the motion for that purpose, by allowing the applicant to make the affidavit and assignment required by said Acts.
    And failing in his motion for a discharge, then he moved for a new trial, on the grounds :
    1. Because the confession of judgment of July 2, 1855, for five thousand and eighty-seven dollars, was not an undue preference, or an assignment or conveyance of the debtor’s effects, or such an act as would deprive, him of the benefit of the Acts for the relief of insolvent debtors, for the benefit of which he was applying — notwithstanding the proof was not sufficient to satisfy the jury as to the actual consideration of said judgment.
    2. Because his Honor erred in charging the jury that, unless the applicant accounted for the items of five hundred and fifty dollars and one thousand four hundred and forty-nine dollars, and made proof that they were debts due to Solomon Wright by him at the time of the confession, that they should be regarded as fraudulent, inasmuch as those' sums were improperly abstracted from the other suing creditors.
    8. Because his Honor erred in charging the jury that the confession of judgment, if fraudulent in whole or in part, was sufficient, under the specifications in plaintiffs’ suggestions, to deprive the defendant from receiving his discharge under the Acts for the relief of insolvent debtors.
    4. Because his Honor erred in charging the jury that, though the confession of judgment was before the Clerk of the Court for five thousand and eighty-seven dollars, with the usual affidavits, upon a note for the amount given at the time/ it was not necessary for plaintiffs to make proof of fraud, but it was incumbent on the defendant to show the consideration on which said confession was founded; and failing to show all the items of which said confession was composed, though good in part, the jury should declare it fraudulent. as to the items not proven to their satisfaction.
    5. Because the evidence was sufficient, under the circumstances, to show that the said judgment was bona fide, and the finding, as to two items therein, in the manner as found, did not authorize the jury to find the said judgment fraudulent.
    6. Because his Honor erred in instructing the jury that, upon an application for a discharge on the part of the defendant under the Insolvent Debtors’ Act, the consideration of the said judgment might be inquired into as a collateral matter, notwithstanding the law provided another and a different mode to test its validity.
    7. Because the finding of the jury was without any evidence to support it, against the weight of evidence, and contrary to law.
    The fifth, twelfth, and thirteenth specifications, are as follow : :
    
      5. Because the said Jonathan Wright, on the second day of July, in the year of our Lord one thousand eight hundred and fifty-five, fraudulently confessed judgment to his father, Solomon Wright, for four hundred and ninety-eight dollars and seventy-one cents; and on the second day of July, one thousand eight hundred and fifty-five, fraudulently confessed another judgment to bis father, in the sum of five thousand and eighty-seven dollars and twenty cents; and on the third day of September, in the year of our Lord one thousand eight hundred and fifty-five; the said Jonathan Wright fraudulently confessed a third judgment to his father, for eleven hundred and eight dollars and sixty-three cents, as these relators charge and believe, to hinder, delay and defraud the bona fide creditors of the said Jonathan Wright of their just and legal claims.
    12. Because the said Jonathan Wright has not included in his schedule a certain plantation in the District of Darling-ton, on which he now resides, which said plantation was sold by the Sheriff of said district, on the third day of September, in the year of our Lord one thousand eight hundred and fifty-five, and purchased by Solomon Wright, (the father of said Jonathan Wright,) who now holds the title thereof upon secret trust for the benefit of said Jonathan, (as these relators charge and believe,) whilst the rents and profits thereof were, in fact, to the use and benefit of the said Jonathan Wright, whereby the creditors of the said Jonathan Wright are hindered, delayed and defrauded of their just and legal rights.
    13. Because the said Jonathan Wright has not included in his schedule certain negroes, to wit, Allen, Louis and Hester, nor household and kitchen furniture, plantation tools, stock of hogs and cattle, sold by the Sheriff of the District of Darlington, and purchased by Solomon Wright, who now holds the titles thereof upon secret trust for the benefit of said Jonathan, as these relators charge and believe, whilst the possession thereof remains with the said Jonathan Wright, the profits thereof accruing, in fact, to his use and benefit, whereby his bona fide creditors are hindered, delayed and defrauded of their just and legal rights.
    
      Verdict. We find, under the fifth, twelfth, and thirteenth specifications in the suggestion, that the defendant is guilty of making a fraudulent confession of judgment to his father, Solomon Wright, for five thousand and eighty-seven dollars and twenty cents, referred to in the said specifications, as to the extent of five hundred and fifty dollars, and fourteen hundred and forty-nine dollars, said to be included in said j udgment; and we find him not guilty of the other charges in said suggestion.
    WM. A. CARRIGAN, Foreman.
    
    
      Warley and Harllee, for appellant,
    on motion to discharge applicant.
    The verdict was rendered under instructions, and was clearly a misconception, so far as twelfth and thirteenth specifications were concerned. Those specifications do not “ refer to the judgment,” as is said, nor do they charge fraudulent assignment, as was supposed by his Honor. They simply charge a false schedule, in not including lands, negroes and furniture sold at Sheriff’s sale.
    The jury only found fraud in the judgment for five thousand and eighty-seven dollars, so far as two items were concerned. The Court directed the finding to embrace other specifications, (false schedule,) and this is complained of as error.
    1. The property was not defendant’s at time of his arrest. Hutchinson vs. Love, 1 Sp. 144.
    
      2. The sale by Sheriff was under valid judgments, and passed title out of defendant, and, at time of his arrest, he could neither assign nor, surrender. Robinson & Caldioell vs. Amy, 1 Eich. 289. Brandon & Neihers vs. Rogers, 9 Eich. 10. Same case, 11 Eich. 10.
    The finding, therefore, is not specific, as it should be, where different offences against the statute are charged. Headley & Street vs. Jordan, 2 Eich. 453.
    If vague and indeterminate, cause for new trial, at least.
    The fifth specification is all that verdict can properly be referred to, and it is submitted that there is nothing in it which will deprive the defendant of his charge. A. A. 1759, 4 Stat. 86; A. A. 1788, 5 Stat. 78, speak of fraudulent assignments, conveyances, and undue preference, but do not refer to confessions of judgments, as preventing the discharge.
    1. The confession is not a fraudulent preferencé, because not in three months before arrest, and because it is alleged the debt was not due.
    2. It is not a fraudulent conveyance or assignment, because sale was under valid judgments, and title passed to purchaser.
    3. It is not a false schedule, because property was not in defendant at time of arrest, and he could assign or surrender no more than he had then. Bullwinhle vs. Grube, 5 Eich. 286. Cavan vs. Dunlap, Ohev. 241. Flemming vs. Close, 3 Strob. 365.
    The fifth specification contains no, cause that the Act therefore regards as an offence, which is necessary.
    The finding under it ought not to prevent discharge.
    On motion for a new trial:
    Many of the authorities cited for discharge apply to first ground.
    
      On second, fourth and fifth grounds: G-uignard vs. Harley, 10 Eich. Eq. 253, is a case in point where ruling of the Chancellor on same evidence is affirmed and approved.
    This was a confession before clerk under the Act of 1821, 6 Stat. 161, and terms complied with; and according to Robinson vs. Stewart, 1 Eieh. 3, on proof here plaintiffs could not have gotten an order to file suggestions.
    The fact that the Act of 1821 points out a remedy to attack judgment, is a reason why Court should lend no countenance to the attack in this collateral way, as plaintiffs had as complete a remedy.
    The verdict is vague and indeterminate, and is a cause for new trial. Moore vs. Lemon, 2 Sp. 617.
    Each specification must charge offences against the Act— must be specific, single, and consistent. The verdict must be specific, because penalties are different for different offences.
    
      Largan, contra.
   The opinion of the Court was delivered by

O’Neall, C. J.

This case, which was so much protracted on the circuit, will have to go back, but only upon the second ground of appeal and the fifth, twelfth, and thirteenth specifications ; all the other matters have been satisfactorily passed upon, and are not intended to be opened again for re-examination. The verdict is found under the fifth, twelfth, and thirteenth specifications, but is only nominally so found under the twelfth and thirteenth specifications ; for it has no relation to any facts set forth in them.

It does not appear that the Circuit Judge gave such a charge as is set out in the second ground of appeal. He referred it to the jury to say whether any of the items were fraudulently introduced into the confession to defeat, delay, or hinder the creditors; and the jury responded by finding the confession of judgment to be fraudulent, as to five hundred and fifty, and fourteen hundred and forty-nine, dollars. The question is, whether that finding can be sustained.

A judgment is evidence of lona fieles until in some way the contrary is made to appear. On the present occasion, the testimony of Mr. Brunson, the clerk, instead of impeaching the judgment, went.to sustain it. He says, “As to the item of five hundred and fifty dollars, there was no note ; where it came from I cannot now recollect, though it then was explained to me.” This, instead of discrediting the judgment in that particular, leaves it as it was before. ■ It is protected by the confession. As to the item of fourteen hundred and forty-nine dollars, that is fully explained: “ the parties said it was for Mahala and her children.” The suspicion against the judgment was, that it was between father and son, but that is noi ground upon which it can be set aside. The father would be naturally expected to afford aid to his child who was struggling with adverse fortune; and after so aiding him it is natural to suppose that reimbursement would be sought from the wreck of his fortune. But a mere suspicion cannot affect a judgment. It caunot be pronounced fraudulent or set aside on any such ground. The motion for a new trial in these particulars is granted.

Wardlaw, J., concurred.

Neiu trial ordered.  