
    Benj. Blakeney ads. Jane Kirkley, by her next Friend.
    Where a person, much indebted, made a deed without consideration to one of his children, out of several, of all. his property, and declared to a witness that he did it to avoid paying a particular debt :• — Held, that the deed was fraudulent and void as to creditors, under the statute 13 Eliz.
    Where a man owes a sum of money at the time of making a gift to his child, without consideration, and the money is never paid, the presumption of fraud can only be rebutted by showing very abundant property over and above the gift, kept and retained by the donor for the purpose of paying his debts. And if, in the ordinary course of events, such property turns out to be inadequate to the discharge of his debts, the presumption of fraud remains, although the property reserved may have been deemed originally adequate to that purpose, if exclusively so applied.
    This was an action of trover, for a negro girl, named Tomsel. Tried before Mr. Justice Richardson.
    The plaintiff claimed under a parol gift made by her father, in February, 1811, which was proved by *her two sisters, who were at the time twelve «... and fourteen years of age, nor did it appear that any other person was L 040 present at the gift.
    The defendant claimed under a sheriff’s sale, made November, 1818, by virtue of two executions of A. M Donald v. John Kirkley, the father of the plaintiff. The note on which M’Donald’s judgment was obtained, was given in 1810, and due 1st January, 1811, before the gift. The judgments were obtained in 1813, and no less than seven executions had issued, and many efforts made to get the money. At the time the gift was made, the plaintiff’s father had nine children, and was possessed of no other property than three negroes, all of whom he gave to the plaintiff, a small tract of land worth seven or eight hundred dollars, one witness said twelve hundred, and some horses, cattle, and hogs. Besides the debt to M’Donald, there were executions in the sheriff’s office against him for a considerable sum, and he was considered, as the witness said, in embarrassed circumstances at the time this gift was supposed to have been made. It was proved, that within six months after the gift, he contracted a debt to one Rhodes, for $305, on which a judgment had been obtained, and frequent executions issued; but the money could not be raised. One witness swore that Kirkley told him several years ago, that he had given his negroes to the plaintiff, to avoid the payment of the debt to Rhodes.
    The jury found for the plaintiff in the following words : “We find for the plaintiff, the negro' girl Tomsel, and forty dollars for her hire, or five hundred dollars.”
    The defendant moved for a new trial, on the following grounds:
    
      1st and 2d. That the gift was made with intent to defraud creditors, and therefore void, by virtue of the statute of 13 Eliz. and by the common law.
   The opinion of the Court was delivered by

BjchaRDSON, J,

The amount of debts due by the donor, John Kirk- .¡,-. ley,* at the time of the gift, was proven to be between five and 1 six hundred dollars, to wit:

Ever since the period of the gift, he, the donor, has been embarrassed by old and by new debts. The gift was secretly made, none but his two daughters being present: it was of all his slaves, and to one child out of nine. These facts, and his situation at the time, were, in my judgment, enough to prove the fraud according to the cases adjudged under the statute 13 Eliz. But David Buchan adds, that J. Kirkley once declared to him, that he made the gift to “keep from paying the debt to Rhodes.” I consider that the many decisions under the statute of Elizabeth, clearly establish the position, that where a man owes a sum of money at the time of making a gift to his child, without consideration, and the money is never paid, the presumption of fraud can be rebutted only by showing very abundant property over and above the gift, kept and retained by the donor, for the purpose of paying his debts ; and if, in the ordinary course of events, such property turns out to be inadequate to the discharge of his debts, the presumption of fraud remains, although the property reserved may have been deemed originally adequate to that purpose, if exclusively so applied. In a word, the case must be an exceedingly fair one, not to be deemed fraudulent where a xkjij-i debt due prior to the gift shall have remained *unpaid. Upon this -* point, the law is very strict against debtors who assign property gratuitously.

In the case before us, the badges of fraud were evident, the property remained with the donor, the gift was considerable, and was not made public, and the donor has never been able to pay his old or his new debts. And the chattels retained, consisted of a few cattle, hogs, and horses, which are in their nature very unstable, and not easily traced, and the land was of very uncertain value. Rob. Fraud. Con. 449, 451-2, 520-3, Reaborne v. Teasdale, (2 Bay, 550.) Jacks v. Tunno, (3 Eq. Rep. 1.) Rowland v. Sullivan, (4 do. 518.)

The gift appears to me, therefore, evidently fraudulent, and the motion is granted.

Colcook, Nott, Johnson, and Huger, JJ., concurred.

Gantt, J.

I dissent in this case, because, from the evidence which the report of the case afforded it appeared that one witness proved that the tract of land which the donor owned at the time of the gift, was worth twelve hundred dollars. His debts at the time of the donation were about five or six hundred dollars. The gift was made to a daughter, who by nature possessed a feeble constitution. How, although the land was afterwards sold for a much less sum, under an execution, to wit, for §360, still I can see nothing in the transfer of this property, to an unfortunate child, as affording evidence of fraud. The donor had other property besides this tract of land, and I feel a thorough conviction, not only of the propriety, but legality of the donation.

Ante, 70. 1 Bail. 337 ; 2 Bail. 130.  