
    Executrix of Gordon v. Charles Goodwin and A. Beggs.
    Where a party sues in the right of another, as executor, &c., the defendant, if lie wish to make any objection, because others are not joined, he must plead it in abatement, and the Court will not grant a nonsuit; but if he sue in his own right, the nonjoinder of others may be the cause of nonsuit.
    Where a father purchases property with money out of his own estate, and drew a bill of sale of the same to himself, as agent to the trustees of his wife and children, and kept the same in secret, and used the property as his own, and afterwards sell the same to a Iona fide purchaser for a valuable consideration, without notice, the Court will consider such bill of sale as fraudulent against such purchaser.
    The Court will require great strictness in proving that the property was purchased by the trust fund, after appearing as the husband’s, although it be expressed in the bill of sale to have been purchased by the trust fund.
    
    In all cases where a party aiding and assisting, by furnishing another with the show of capital, he makes whatever capital he so furnishes absolutely liable for so much as is obtained upon its credit: ut videtur.
    
    This case was tried before Mr. Justice Johnson, at Barnwell, April Term, 1819.
    *The testator, Ambrose Gordon, made his will in Georgia, and died J there, appointing the plaintiff executrix, and two others executors. A copy of the will was lodged in the Ordinary’s office, in Edgefield district, and the plaintiff alone qualified in this State. She commenced this action without naming the other executors, for the recovery of certain negroes in the possession of defendants.
    The defendants pleaded the general issue, and the statute of limitations.
    On the trial, the defendant’s counsel moved for a nonsuit, because, by the production of the will, it afforded evidence that there were other persons who ought to have been plaintiffs in this suit.
    The Court overruled the objection.
    The evidence then made the following case:
    Charles Goodwin, one of the defendants, by a bill of sale dated the 6th day of January, 1802, conveyed to plaintiff’s testator the negroes in dispute. This instrument was executed in Savannah, and the negroes were at that time in Barnwell district. The bill of sale had an indorsement on it, made by Benjamin Sims, some time in the same year, stating that at the request of Col. Gordon, he had called on defendant Goodwin for the negroes in dispute, as the agent of Gordon ; that they were delivered to him by Goodwin, but suffered to remain in his possession until the further orders of Gordon, who died soon afterwards.
    Hartford Montgomery, examined by commission, stated that some time in 1812, he accompanied the plaintiff to the house of defendant Beggs, where he demanded the negroes in dispute ; he refused to deliver them.
    Benjamin Sims was also examined by commission, who stated that the indorsement on the bill of sale was correct, with the addition that Maj. Goodwin, the other defendant, expressed much gratitude for the kindness of Gordon, in advancing money on former occasions.
    Thomas Wimberly said he knew the negroes, and stated their annual value to be $ — . This witness said he had never seen them in Goodwin’s possession, *721 were always held Begg's since lie knew them. J John J. Gray gave a similar account of the negroes in dispute. He said Beggs married Goodwin’s daughter in 1806, and he had seen the negroes in his possession since 1812.
    The defence was entirely on the part of Beggs. He introduced a deed for one of the negroes, from Aaron Richardson, dated in 1799, to 0. Goodwin, as agent of John H. Goodwin, of London, trustee of Elizabeth Goodwin, securing these negroes to the entire and exclusive use of Mrs. Goodwin, during life, and at her death to the issue of her body, share and share alike. This bill of sale acknowledged the money to have been paid by Charles Goodwin, as ike agent of the trustee. Another deed from Leroy Hammond (of the other negroes in dispute) to Charles Goodwin, of the same character, and to the same uses, in every respect, was next read in evidence, which bore date January, 1801. Mrs. Goodwin was dead, and the defendant, Beggs, having intermarried with one of her daughters, insisted on his right and possession, derived from these deeds, as absolute to the negroes in question.
    In reply, a letter from the defendant, Charles Goodwin, to A. Gordon, dated 2d May, 1801, was adduced, soliciting, on the faith and credit of the money, which might be raised by the sale or hire of the negroes, a loan of money. This letter describes the negroes as the property of 0. Goodwin, and acknowledges his private concerns not only embarrassed, but his pecuniary resources exhausted.
    The Court charged the jury that there was not sufficient evidence of possession in Beggs to enable him to avail himself of the statute of limitations. That as to Goodwin, his possession, if they believed Sim’s testimony, was the possession of Gordon and his representatives, and therefore he could not set up the statute. But if they believed the transaction between 0. Goodwin, and A. Richardson, and Hammond, was a fair one, and not fabricated to defraud creditors and ^purchasers, then Goodwin held as agent or trustee for his rX7o children ; his possession was theirs, and they ought to have the benefit L 0 of it. The Court further charged, that in a court of law, it was the duty of the party alleging fraud to prove it; and that a jury were not to presume it from slight circumstances, particularly to the prejudice of third persons, not parties to the transaction. The jury found a verdict for the plaintiff for the negroes in dispute, and $1,250 damages.
    The defendants now moved for a nonsuit:
    Because the plaintiff should have included the other executors as plaintiffs; and the Court ought to have ordered the nonsuit on the motion below.
    And for a new trial:
    1. Because the jury presumed fraud in finding for the plaintiff, of which there was no proof.
    2. Because, on the plea of the statute of limitations, defendant Beggs should have had a verdict, since the possession of 0. Goodwin from the year 1801, was his possession.
    3. That the proof, as to the value of the hire, was vague and indefinite, and the verdict, as to damages, excessive.
   The opinion or tne uourt was delivered ny

RICHARDSON, J.

The motion for a nonsuit cannot prevail, because the rule of pleading is established, that defendant must take advantage of the non-joinder of a co-executor, by pleading in abatement, after oyer of the probate. This is the distinction when the plaintiff sues in right of another, and when he sues in his own right. In the latter case, the omission may be the cause of nonsuit, but not in the former. 1 Chitty, 13. 1 Saund. 291.

The verdict, too, as to the amount of damages, is supported by the testimony which need not be more particularly narrated. This was a question for the jury ; and the verdict is not enormous.

As to the possession of the negroes by Charles *Goodwin, it evidently appears from the evidence of Benjamin Sims, that it was L not adverse from the plaintiff’s testator, but really his possession.

But I hasten to the ground relied upon by the defendants, and seriously argued by their counsel for a new trial, to wit: Because the jury presumed fraud, in finding for the plaintiff, of which there was no proof.

The question submitted to this Court is, can the -verdict which deprives the children of Mrs. Goodwin of these negroes in favor of a bona fide purchaser, for valuable consideration, from C. Goodwin, her husband, and without notice of the settlement in trust, be supported by the testimony ?

The facts were as follows : In May, 1799, Charles Goodwin, the husband, styling himself agent of Chamberlain, and John Goodwin, trustees of Elizabeth, the wife of the said Charles, purchased one of the negroes in dispute. In January, 1801, the said Charles'Goodwin, styling himself as before, purchased the other negroes. The consideratipn money was said to be received of the trustees, by the hands of the said Charles, and the negroes to be holden in trust for Elizabeth, his wife, and her children. On the 23d May, 1801, Charles Goodwin wrote to the plaintiff’s testator, Ambrose Gordon, parts of which letter I will refer to. On the 6th January, 1802, Charles Goodwin, in consideration of $1550, con.veyed the negroes named in the letter, to Ambrose Gordon, under which conveyance his executrix now sues. The bills of sale to Charles Goodwin, as agent, are in his handwriting, and never recorded; nor does it appear that Ambrose Gordon could have had notice of them. The ne-goes appeared, of course, as the property of Charles Goodwin, who held possession of them, and described them as his own property. This letter avows his pecuniary embarrassment. In this situation he sells the ne-groes, to all appearance, his own, to A. Gordon. If Charles Goodwin, thus embarrassed, paid the consideration money for these negroes to Hammond and Richardson, out of his own pocket, *though he -* took a bill of sale, which he kept in secret, for his wife and children, it would require a kind of hardihood to contend seriously, that there would not be grounds to presume a fraud, even at common law. And we would much more readily conclude there was a fraud under the statute of 27 Eliz. made expressly to protect purchasers for valuable consideration, against voluntary settlements of that kind.

But did not Charles Goodwin actually pay the money out of his own estate? He did pay it; drew the bills of sale to himself, kept them in secret, and used the negroes as his own. On the other hand, he styles himself agent of certain trustees, which may suppose a trust fund. But are not these susceptible of easy proof? And can the mere expression of the •husband, because put into writing, when he is himself charged with the fraud in covering his own estate, and deeply interested, can his mere expression be received as any proof whatever ? I conceive not. But let it be called the expression of the vendor of the negroes ; then he, too, must be sworn to these facts, else there is still no testimony. If a husband were allowed to cover his property against creditors and purchasers, by so simple a device as naming trustees, calling himself their agent, and by the mere act of so doing, assuming that there is a trust fund, the law, which is so watchful over mere voluntary settlements, would become literally blind. But besides the obvious necessity and reason for disregarding the mere expression contained in the bills of sale, there are not wanting adjudications to show that in such cases evidence of the trust fundís required. The case of Cadogan v. Kennett, Cowp. 434, and those in 1 Mod. 76, and 2 Ves. 10 and 11, are, in my judgment, very strong. And according to the last case of Cross v. Glode, 2 Esp. Rep. 514, the Court would require great strictness to prove the property purchased by the trust fund, after appearing as the husband’s. But suppose for a moment, that there were trust funds and trustees, who actually authorized the appropriation of the *wife’s money, in the purchase of these negroes, is there not great reason to say that they too have b committed a legal fraud upon the purchaser, in keeping the transaction a profound secret, and suffering their agent to exhibit the property to the world as his own, thereby assisting him to obtain money under a fictitious capital ? It is assisting one man to cheat another, which is not allowable. In all such cases, the party aiding and assisting, by furnishing another with a show of capital, makes whatever capital he so furnishes absolutely liable for so much as is obtained upon its credit. If the trustees have done so, they have committed a fraud upon A. Gordon, whose representative must recover the negroes, or their value. And the resort of Mrs, Goodwin would be evidently to those trustees for their more than unguarded use of her trust fund.

Qrimhe, for the motion. Martin, contra.

The motion is unanimously dismissed.

Bay, ISTott and Gantt, JJ., concurred.

Colcock J., was absent when the ease was argued. 
      
      
         See Carmichael v. Buck, 10 Rich. 337, and cases there cited; Post. 544.
     