
    David A. Comstock et al. vs. Thomas Rayford et al.
    It seems that possession by the vendor of personal property, after the sale, is but primó, facie evidence of fraud in the'sale ; and but throws the burden of sustaining the sale and establishing its fairness upon the vendee.
    Certain slaves were attached in this state by judgment creditors in the state of Alabama of the debtor, by foreign attachment in chancery ; the debtor answered disclaiming ownership in the property attached, and asserting that, in May, 1842, he had sold it to his father ; the father also answered, asserting his claim ; the proof as to the character of the sale was contradictory, and incapable of reconcilement, without discrediting, some of the witnesses ; the court reviewed elaborately all the facts of the case, and came to the conclusion that the sale was fraudulent; and in reaching this conclusion, relied principally on these facts: — the sale of the slaves, by son to father, took place in May, 1842, but the son -did not deliver possession, until July, 1843 ; at which time, the slaves were suddenly if not in a clandestine manner, removed from Alabama, where the parties lived, part of of them to. this state, part to Georgia ; the son who aided in their removal, saying at the time that they were removed on account of some old debts against them ; at the time of sale, there were suits pending in the supreme • court of Alabama, against the son, on the point of being decided against him, being the claims of complainants; the same slaves were sold in 1840 by father to same son, and on trial of right of property, for one of them levied on in Alabama for debt of the father, and claimed by the son, the father testified as to the consideration paid him by his son ; and gave a totally different one from that set up in the present suit; the Teason given by father for the sudden removal of the slaves to this state and Georgia, was that it was to sell them for ready money to meet a trust sale of the father’s land; this reason shown by the facts to be false, and many other facts.
    
      Every presumption is in favor of the credibility of a witness; and, although there may be impeaching testimony, yet if it is overbalanced, the evidence cannot be rejected.
    Where it is not necessary to record a bill of sale of slaves, and yet the record of it is made, it looks as though it might have been done for effect; so algo, where both parties at the time state a sale to be a fair one, it justly gives rise to suspicion of its unfairness.
    Where a creditor’s attaching bill, founded on judgments rendered in another state, prays only for a sale of the property attached; and the court below adjudges that property not to be liable to the attachment, and the complainant, without establishing their debt or making the attempt to do it, appeal to the high court of errors and appeals ; this court, on reversing the judgment, can only remand the case, that the debt of complainant may be first established, in order that there may be a decree of sale.
    Where a bill was filed in this state by creditors of a bankrupt under the act .of congress, who had obtained their judgment against their debtor in Alabama, before his discharge, but proceeded in this state subsequently thereto, to subject to their judgment certain slaves in this state, alleged to have been fraudulently sold by their debtor, it was intimated by the court, that the discharge in bankruptcy of their debtor, without a lien in this state to protect them, presented a great obstacle to complainants’ success.
    On appeal from the district chancery court at Holly Springs; Hon. Henry Dickinson, vice-chancellor.
    ■ David A. Comstock, James A. McCampbell, George Robbins, Samuel Painter, and Nathan Green, state in their bill, that complainant, Comstock, as assignee of complainant, James A. McCampbell, in April, 1842, recovered judgment in the circuit court of Benton county, Alabama, for the sum of $898, against defendant, Reizen R. Chilton, who took an appeal to the supreme court of Alabama, when the judgment was affirmed, 14th of June, 1842, against the defendant and his surety in the appeal bond, James Baugh, for the judgment and ten per cent, damages, amounting to $1028'22; that complainants, George Robbins, Samuel Painter, and Nathan Green, (Robbins, Painter & Co.) obtained judgment in Benton county, Alabama, on the 14th of April, 1841, against said Chilton and Sterling Price, for $1114-48, and costs, from which they took an appeal to said supreme court, when the judgment was affirmed on the-day of June, 1842, with ten per cent, damages, amounting to $1252-73; that at the date of the affirmance of said judgments (which are unpaid,) the said Reizen R. Chilton was the owner of the following slaves, viz: Letty, forty years old, worth $100; Eliza and two small children, worth $600; Harriet, worth $250; Anderson, worth $450; Thomas, worth $300; that executions were issued and placed in the hands of the sheriff, and that said Reizen R. secretly, and for the purpose of preventing a levy; run said negroes off from Benton county into some othér county in the state, and then into Marshall county, Mississippi, where they now are in possession of defendant, Rayford. That by the laws of Alabama, complainants had a lien from the time these executions were in the hands of the sheriff: that the negroes were run for the express purpose of hindering its enforcement; that the other parties to the judgments are insolvent, or worth but little; that Chilton was the principal debtor; that the only chance to make their money is out of the negroes; that said Chilton, after placing the negroes in possession of Rayford, a citizen of Marshall county, returned to Benton county, Alabama, where he resides. Complainant, McCampbell, states, that he transferred the note, on which the judgment against Chilton was obtained, to complainant Comstock, as collateral security for a judgment which Comstock had against him, which is unsatisfied that he pursued the negroes thus run, and found them in possession of Rayford; believes that Chilton will run them again, or dispose of them to some person unknown, and will defeat the claim of complainants.
    Complainants further show, that Rayford sometimes pretends that he has bought two of the negroes, Thomas and Anderson, of one Pelatiah Chilton, father of Reizen R., of Benton county, Alabama, who made no claim to said negroes in Alabama ; that they were then held by Reizen R. as his own, as will appear by record evidence of a bill of sale to be produced; that Reizen R. has not sold said negroes, Thomas and Anderson, to Rayford, and that said pretended sale of Pelatiah Chilton is fraudulent; that they have no remedy at law by attachment, inasmuch as themselves and said Chilton are non-residents; wherefore, they pray discovery and answer, process of attachment and injunction against Rayford from paying over any funds of property of Reizen R. in his hands, which was granted, on giving bond &c.
    Transcripts of the judgments in Alabama were annexed to the bill.
    Bill was demurred to, and demurrer sustained January term, 1S43, a writ of error taken to the high court, and judgment of the vice-chancellor sustaining the demurrer reversed at the July term, November 17, 1843.
    The answer of Rayford, filed July 3, 1844, states that he knows nothing of the judgments mentioned in.the bill, but has no reason to doubt them. Admits the negroes were in his possession at the filing of the bill, but does not know in whose possession they were at the time of the judgments; does not believe they were put into his hands for a fraudulent purpose; knows nothing until the negroes were brought to this state; positively denies that Reizen R. sold him the negroes Thomas and Anderson, but alleges that he bought them of Pelatiah Chil-ton the last of July, 1842, who claimed them, and who he believed and believes to be the real owner. Some ten weeks afterwards Reizen R. and Robinson Hogle brought the other negroes in the bill from Alabama, and left them in his possession, to remain until the arrival of Pelatiah, who was expected in a few days; was informed at the time, and believes they were all the negroes of Pelatiah; for the negroes, Thomas and Anderson, he gave Pelatiah $1000, paying him $150 in cash, and giving his notes for the balance, which were not due at the institution of this suit; that, solely from distaste of litigation, he applied to Pelatiah, who agreed to rescind the purchase, giving up his notes and paying back the $150; disclaims all interest; asserts that the sale was bond fide; has always believed, and now believes, the negroes were the property of Pelatiah; admits they are the same negroes brought from Alabama; admits the return to Alabama of Reizen R.; denies all fraud, &c.
    The answer of Reizen R., filed July 3, 1844, admits the judgments as set forth in the bill, and that they are unpaid ; denies that at the affirmance of either of the judgments, any of the negroes were in his possession, or were his property, or claimed by him; admits the value of the negroes alleged in the bill j admits the issuance of executions, but denies that they came to the sheriff’s hands before the 2d August, 1842, when Anderson and Thomas were in Mississippi and the other negroes in Georgia ; denies that he ran the negroes at any time or for any purpose; asserts they were the property of Pelatiah; admits the judgments cannot be satisfied out of the property of defendants thereto; that there was never any lien of complainants on said negroes, even if they had been his property, inasmuch as they were out of Alabama before such lien could have attached; requires proof that Comstock is assignee of McCampbell; denies that he has claimed any of the negroes since May 2,1842; denies that he brought Anderson or Thomas to Mississippi, or offered to sell them to Rayford; is informed that his father Pelatiah did sell them to Rayford and rescind the contract in the manner stated by Rayford in his answer; asserts that his father was the owner, and openly claimed the negroes after 2d May, 1842; states that Nathaniel Parks, guardian of Julia Harding, and Benjamin Selman, guardian of Mary Harding, now wife of respondent, obtained a judgment against one Moses L. Barr, the former guardian, and Pelatiah Chilton, his surety, for maladministration in the guardianship; that Barr was insolvent, and Pelatiah, to obtain time, executed twelve promissory notes and a deed of trust on his land, on the 2d October, 1839; the deed of trust is filed as exhibit No. 3, describing more fully the notes and land; that on the 1st April, 1840, Pelatiah sold to him the negroes mentioned in the bill, and five others, and one wagon and team, forty head of cattle, one hundred head of hogs, and executed his bill of sale, exhibit No. 1; that the only consideration was, that he should pay said twelve notes, and release the land from the trust, his father being about to go to Arkansas ; that his father’s anxiety was so great, that he required of respondent a bond conditioned in the penalty of $ 1200 to pay said notes, of same date as the sale, filed as exhibit No. 2. His father returned in July, 1840; he continued to promise the payment of said twelve notes, and made every reasonable effort to do it, but could not, when in the winter of 1842 the trust property was advertised for sale; and at the remonstrance of his father, as he could not pay, he resold and conveyed the negroes to his father May 2, 1842, and delivered possession; refers to the bill of sale as exhibit No. 4, to Pelatiah Chilton’s answer; since that time he has had no interest in and asserted no claim to the negroes, but they are the property of Pelatiah; that the consideration of said bill of sale, exhibit No. 4, is expressed to be $2600, but its real consideration was his failure to pay the twelve notes; that of the negroes originally conveyed to him he has sold four; their names and the price he was to give to Pelatiah for them are as follows — Wesley, f 1000, Jane and child, $700, Bob, $900; in May, 1841, respondent married Mary Harding, and thereby discharged the amount due by his father to B. Selman, her guardian, to wit, $2696’67; that by the sale of the four negroes, the wagon and team, the hogs and cattle, and $520 loaned him by his father, he has been more than repaid said sum of f 2696'67.
    That said notes to Selman, though fully paid, are in possession of complainant, McCampbell; that he obtained them thus: In 1843, respondent went into bankruptcy; he had in possession the notes of Selman, (he having given them to him on settlement of his guardianship,) and though fully discharged by Pelatiah, his lawyer advised him to return them in his schedule, and his father could plead his payments when called on to pay; he did so return them, and at the assignee’s sale McCampbell became the purchaser; hence he cannot produce them though fully paid.
    That being unable to pay the $3000 due to Parks as guardian, he reconveyed to his father; that there was this farther inducement to said reconveyance, viz. that his father represents that he desired to sell said negroes to raise money to release his land. That he is informed, that afterwards his father sent the boys, Anderson and Thomas, to Mississippi, under charge of Asahel Chilton, for sale; the others he sent to Georgia, under charge of William Fullingham and Robinson Hogle, for sale.
    That he, respondent, had nothing to do with sending off said slaves, but they were sent to raise specie to pay the debt due to Parks, who would receive nothing else, there being no other currency in that county but Alabama paper, which was at a heavy discount.
    That Asahel Chilton could not effect a sale in Mississippi; that Fullingham and Hogle failed to make a sale in Georgia, and at his father’s request, respondent went to Georgia, obtained possession of the negroes and took them to Rayford, in Mississippi, disclaiming for himself any ownership or claim to said negroes; said Pelatiah was not able to effect a sale of the negroes in time to prevent a sale of his land under the deed of trust. Admits his insolvency, denies the fraud, alleges his right to prefer his father as a creditor; the land was sold under the deed of trust July 12, 1842, and all the proceeds applied to the claim of Julia Harding.
    Exhibit No. 1, is the bill of sale of Pelatiah to Reizen R., dated April 1, 1840.
    Exhibit No. 2, is the bond of Reizen R. to, Pelatiah Chilton, conditioned to pay the amount due Selman and Parks, $6000, including costs and interest.
    Exhibit No. 3, is the deed of trust of Pelatiah Chilton to Sel-man and Parks, dated 7th October, 1839.
    Answer of P. Chilton, filed July , 1844, contains the same allegations and denials that are contained in the answer of Rei-zen R.
    Exhibit No. 4, is filed with this answer, and is the bill of sale of Reizen R. to Pelatiah Chilton, dated May 2, 1842.
    The deposition of Matthew M. Heriston states, that Reizen R. Chilton brought him the bill of sale of Pelatiah Chilton to Reizen R. Chilton of the following negroes: Letty, Robert, E; Eliza, Jane, Anderson, Thomas, Harriet, Newton, Elizabeth, Wiley, Fowler, and Elizabeth, to be recorded in his office as clerk of the county court a short time after its execution; knows nothing of the possession, or their being carried away, except from rumor. There is no record in his office (the proper place) of a reconveyance; knows nothing of the circumstances under which the negroes were carried off, except that Reizen R. and Pelatiah were in embarrassed circumstances; that a part of the negroes were attached, and several of them for some time in possession of the sheriff, levied on under process a short time before they were carried off in the summer of 1842; there were various judgments in the county court of Benton county against Pelatiah Chilton, amounting to $9000; has heard “Reizen R. say the ne-groes were his property, and forbid the sheriff selling them, or a portion of them, and that he would hold him responsible; knows nothing of the judgments of complainants’ but from rumor. In the year 1842, heard Reizen R. say, the negroes were his, and he was then exercising ownership over them.
    The deposition of Benjamin C. Wyley.— In 1842, witness, acting deputy sheriff, went to the plantation on which Pelatiah Chil-ton had lived, with executions against him and Reizen R., whom he found in sole possession of the farm and several negroes, all of which he said he had bought from Pelatiah; he paid the executions against himself, but prevented witness from levying those against his father, by saying the negroes all belonged to him. At that time Pelatiah lived about three miles from the place occupied by Reizen R.; witness went there and found but one negro on the place, a boy, called Bob; levied on him as the property of Pelatiah and Reizen R.; filed an affidavit and claimed him, saw several negroes in R'eizen R.’s possession, but cannot identify them further than this, that he said he had purchased them from his father, and they were all his father had owned except Bob; heard Reizen R. say he had been security for his father, and that he had to buy the negroes to save himself from loss. At the spring term, 1842, in a trial of right of property in ne-groes between Reizen R. and James A. McCampbell, witness heard Pelatiah swear he made bills of sale, one in 1836, another in 1840, by which he conveyed all his negroes to Reizen R., and that Reizen R. had paid a debt of some $3000 for him in Georgia, and a bank note, and some other debts which witness cannot specify. One of the negroes was named Letty, and one Bob, but Pelatiah was speaking of the negroes, concerning which the trial of right of property was then pending; the swearing was at the spring term, 1842, which commenced the third Monday after the fourth Monday of March, and continued two weeks.
    Deposition of James Crow. — Was and is clerk of circuit court of Benton county, Alabama; recollects the swearing of Pelatiah in the case of McCampbell against Reizen R., claimant; there was but one negro levied on, Bob; a bill of sale was introduced, conveying Bob with other negroes from Pelatiah to Reizen R.; he can only recollect the names of Bob, Fowler, Letty, and Anderson in the bill of sale; Pelatiah swore the bill of sale was bona fide; that Reizen had paid a debt of $3000 for him in Georgia, and a bank debt in Alabama, and divers others which witness could not now recollect, and that these debts were the consideration of the bill of sale which has been withdrawn from his office, and does not know where it is; at the same time Pela-tiah swore that he had received full consideration for the ne-groes, and that Reizen R. did not owe him a dollar; knows of the judgments referred to in the bill; there are judgments in his office against Pelatiah, amounting to $2700 or $2800. The swearing of Pelatiah was before the 2d of May.
    Deposition of Edward Harnden. — In the spring of 1842, before the trial of right of property, was ah the house where Pelatiah formerly lived; Reizen R. then possessed and controlled the land and negroes; Pelatiah was living with him; both told him that Pelatiah had sold farm and negroes to Reizen R., and that he owned them; don’t know the names of the negroes; at the trial of right of property, heard Pelatiah say that he had sold them to Reizen R.; had often told him to take them off and sell them, and if he had done so there would have been no lawsuit.
    Deposition of William B. Martin.'— Obtained judgment some years since as attorney for complainant, McCampbell, against Pelatiah Chilton; had execution levied on one of the negroes in the bill of sale to Reizen R., who filed an affidavit claiming him, and a trial of right of property was had in the spring of 1842, when Pelatiah, as a witness, swore that the consideration of two bills of sale produced, to Reizen R. was sums of money advanced, and services rendered by Reizen R.; that they were made in good faith, and on a fair consideration; the bill of sale had the name of the negro, Bob, in it, about whom the trial was had.
    
      Deposition of Nathaniel Parks. — At one time, does not recollect when, Reizen R. told him he had bought his father’s negroes and had paid for them in money; some time in the summer of 1842, Pelatiah, who had proposed to pay him a debt due from Pelatiah and Reizen R. in negroes, and which witness refused to take, unless Pelatiah signed the bill of sale, referring him to the trial about Bob, in which Bob had been subjected to the execution against Pelatiah; he abused the jury who rendered the verdict, said the negroes belonged to Reizen R., and he had no interest in them; testifies to the deed of trust. When he was about to sell the land, under the deed, both Pelatiah and Reizen R. applied to him for a postponement; does not recollect Pelatiah promising to sell the negroes or carry them off, and appropriate the proceeds to the payment of his debt; he refused to take any thing but par money in payment of his debt; no Alabama money was offered; it was difficult at times to procure gold and silver; the land in the trust was sold, and proceeds appropriated to pay him.
    Deposition of William J. Willis. — Has frequently seen all the negroes mentioned in the bill, except Anderson, in possession of Reizen R. on the place formerly occupied by Pelatiah; Anderson was in possession of Asahel Chilton, but Reizen R. claimed him and all the other negroes who had belonged to his father. In the summer of 1842, with various processes from court in his hands, as deputy sheriff of Benton county, he went to the plantation where Pelatiah resided, and found Reizen R. in possession of plantation and negroes; at that time and other times levied on all the negroes mentioned in the bill in the possession of Reizin, except Anderson, who was claimed by him; this was in the summer of 1842; Reizen R. filed an affidavit to try the right of property ; the negroes were carried off suddenly in July, I think the early part, 1842; have frequently heard both Pelatiah and Reizen R., in the presence of each other, say, that the negroes mentioned in the bill were the property of Reizen R. in the summer of 1842; unless to avoid the payment of debts, does not know for what purpose the negroes were carried off. The executions in favor of McCampbell, use of Comstock, and of Robbins, Painter & Co. were placed in his hands, as deputy sheriff, after the negroes were carried off; heard both of the Chiltons say, they had run off the negroes to avoid these executions; they said they took the cases to the supreme court, expecting to reverse them, and that their security, James Baugh, need not be alarmed though the negroes were carried off. The negroes were in possession of Reizen R. from the time witness commenced acting as deputy sheriff, on the 8th of March, 1842, until they were run off in July; during this period the negroes were claimed by Reizen R., and his claim acquiesced in by Pelatiah; during this period witness went several times with executions against Pelatiah, and he disclaimed owning any property, and said the negroes belonged to Reizen; Pelatiah’s swearing in court was at spring term, 1842; supposes no sale was made on the 2d of May, 1842, as both the Chiltons after that time said the negroes belonged to Reizen R.
    The deposition of Thomas A. Walker. — Was the attorney of complainants in obtaining the judgments in Alabama, since the latter part of 1840; does not know how long before Reizen R. Chilton claimed and exercised acts of ownership over all the ne-groes, and Pelatiah Chilton confirmed his acts and claims. The last time he saw Reizen R. Chilton in possession of the negroes was in July, 1842, said he had sold some of them to Green ; at the October term, 1841, Comstock obtained judgment; at the April term, 1841, Robbins, Painter & Co. obtained judgment; both cases were taken to the- supreme court, and immediately, or a short time after the news of their affirmance reached Benton county, Reizen R. and the negroes disappeared; does not know who conveyed the negroes off; they were overhauled at Holly Springs : Reizen R. Chilton has resided ever since I knew him in Benton county, Alabama, until 1842; heard the testimony of Pelatiah in Benton county, who swore that he sold certain slaves to his son in 1836, as shown by bill of sale of that date, also that he sold and delivered in April, 1840, the negroes mentioned in the bill, and others mentioned in a bill of sale then produced, of the date of April, 1840, and on record in Benton county; said the sale was bona fide; stated -the exact sums Reizen R.- had paid for the slaves, which witness cannot now recollect; states he delivered possession to his son, and had not exercised acts of ownership since; has heard Pelatiah at other times say, that the negroes belonged to Reizen ; never heard of Pelatiah claiming them until the negroes were overtaken in Holly Springs; Reizen R. Chilton exercised acts of ownership from 1840 up to July, 1842; had a conversation with Reizen R., July, 1842, about the negroes, a few days before they were run; the last time he saw them in possession of Reizen R. he said nothing of his sale to his father; we spoke of the rumor, that he would run his ne-groes ; he said he did not intend to do so, but would let them remain to pay his debts.
    Deposition of William Fullingham. — Knows that Reizen R. exercised acts of ownership over the negroes mentioned in the bill up to the spring of 1842. They were under his control and management; he claimed them during a part of that time; Pel-atiah lived in the same house before they were carried away; Pelatiah moved to a place two or three miles distant from where Reizen R. worked the negroes, they remaining under Reizen’s control, who claimed them; witness carried off five of the negroes, to wit, Old Letty, Eliza, Harriet, Newton, and Letty, a child, at the request of Reizen R.; started on the 1st of July; according to direction, went down the road leading south from Jacksonville, about four miles from Reizen R.’s house; rvaited for the negroes, who were brought through the woods by Warren Baker, Reizen R.’s overseer, and Pelatiah Chilton; Warren Baker told me to take them to a man named King, in Barbour county, 200 miles off, and Pelatiah gave direction as to the route, telling me to go “ pretty fast; ” carried them to King’s; gave him a letter handed me by Reizen R. the morning I received the negroes; the letter instructed King to take charge of the negroes until further orders; Reizen R. had called at my house to see me; on learning that, I went over to his house; Asahel, Pelatiah, and Reizen R. were there; Reizen R. said, “We have a family of negroes here, and there’s an old debt owing against the negroes, and we want you to put them out of the way; ” he wanted me to start in the morning; after some hesitation, I consented; on the next morning I started; met Reizen on the road, and her handed me the letter; repeated that morning the instructions he had given me the evening before, as to where I should take them ; I then went to the place designated, and waited until the negroes were brought as before stated ; returned on the 22d of July from Barbour county, where I had taken the negroes; on the 23d reported to Reizen R.; on the 24th Pelatiah came to my house and told me the property in Benton county was levied on by Parks and Selman, and McCampbell and others, and he was afraid it would be found out where the negroes were I had carried off; he wanted me to go and get them, and take them to Georgia and sell them; I consented: Pelatiah came to my house that night, and insisted I should start that night; I consented, and went with him over to Reizen’s house; Reizen R. authorized me,' by power of attorney, to sell them ; it was signed by him and handed to me; I was instructed to sell them for $1600; started that night, the 24th of July, in company with John R. Hogle; went and got the negroes and carried them over to Georgia, and tried to sell them; failing to sell them, left them with the power of attorney with Hogle in Randolph county, Georgia; have not seen the power of attorney since; I kept an account in writing (containing the dates,) for my services, which enables me to speak of dates with so much certainty; Reizen got the negroes from Pelatiah.
    Deposition of Warren Baker. — Knows that Reizen R. exercised ownership over the negroes from 1840 to 1842; was overseer, and called on to witness the contract in 1840; the contract was rehearsed to him by both Reizen and Pelatiah; both .said it was a fair sale for the consideration of $5400; from that sale and delivery, up to 1842, Reizen R. had the possession and entire control of the negroes; they were run off to avoid executions, he thinks, of complainants and others, he thinks, in July, 1842; he heard Pelatiah swear in relation to the slaves in 1842; he said it was a fair sale; he thinks the consideration $5400; the negroes were run to avoid complainant’s judgments; they were in possession and control of Reizen R. from 1840 until they were run in 1842; resided with Reizen R. in 1842 as overseer; knows of no sale on 2d of May, 1842, to Pelatiah.
    Defendants having taken proof to impeach the character of Benjamin Willis, the following rebutting proof was introduced by complainants.
    Deposition of John A. Tercday. — Has known Willis seven or eight years; he served three years as deputy sheriff, and ten years last past as high sheriff of Benton county; never heard his character questioned; would believe him; have always regarded him a high minded and honorable man.
    The depositions of John D. Hoke, Thomas A. Walker, M. M. Heriston, J. C. Francis, George Hoke, James Crow, and Benjamin Selman.
    Deposition of Thomas Hindman, of Tippah county, Missis- - sippi. — Has known Willis since 1834; was a citizen of the same county nine years; has had many business transactions with him, and knows his general reputation; would believe him as soon as any man living; would consider his statements entitled to the fullest credit, whether on oath or not.
    Deposition of Benjamin Howes. — Has known Willis well; lived in the same county with him five years; would consider him entitled to the fullest credit.
    The proof of defendants was as follows.
    Deposition of Wm. P. Chilton. — Obtained judgment for Morgan and son in Benton county, on the 12th July, 1841, for $1403-79, and on 12th April, 1841, for $1380-72, against P. Chilton; executions returned “ no property found; ” got power of attorney to act for clients; gave indemnifying bond to sheriff, who levied on the land on which P. Chilton levied, and on six negroes, Jim and wife, .Nancy, Adam, Frances, Wiley, and Amanda, in the spring of 1842; the land sold for $30, October 3d, 1842; the negroes sold 6th February, 1843, for $1818, leaving, after deducting costs, &c., $1781-35 to credit of defendants; redeemed the land sold under the deed of trust, and allowed a bid of $150 on the fieri facias, making $1931-35, leaving due 6 th of February, 3843, $1243-06, on the two judgments ; I kept the property at request of clients, and accounted for the bids; Reizen R. claimed the negroes when levied on: don’t remember precise date; Parks’s guardian levied attachment against Reizen R. on the negroes pending the litigation; Reizen abandoned his claim; Parks filed bill to enjoin sale under Morgan’s execution, 5th of September, 1842; injunction was dissolved; bill afterwards dismissed; Parks took it to the supreme court; decree of chancellor was affirmed ; on the sale of the negroes, J. A. McCampbell, who had levied execution in his favor against P. Chilton on Amanda, claimed a portion of the proceeds; I indemnified the sheriff; McCampbell has since made some ineffectual attempt by motion to get the money. After the negroes were gone, I had a conversation with P. Chilton, and advised him to sell the negroes and redeem a part of his land with a mill on it, which had been sold under the deed of trust; previous to the negroes being taken off,. I advised Reizen and Pelatiah to pay the just debts by selling property, and liquidate such a deep rot; does not know the pecuniary condition of P. Chilton in 1840; is inclined to think his property would have paid his debts if well managed; does not know the pecuniary condition of Asahel; does not know about Reizen R. possessing the property up to July, 1842; did not visit the place until after that time; live twenty-three miles distant; there is no law requiring bill of sale of negroes to be recorded in Alabama; knew nothing beforehand of the intention to run off the negroes; after they were run, Pelatiah told him they were to be sold to raise money to redeem the land; I supposed they were Reizen’s negroes, or would have levied the Morgan executions on them; as far as I know, there was but one trial of right of property, and that was about Bob; in 1840, was employed by Reizen to enjoin Parks from selling the negroes now in dispute under attachment; bill was afterwards dismissed; the deed of trust is an exhibit with his deposition.
    Deposition of Asahel Chilton. — Twelve negroes were sold April, 1840, by Pelatiah to Reizen R. Chilton, Robert, Anderson,Thomas, Wiley, Fowler, Newton, Letty, Elizabeth, Eliza, Jane, Harriet, and Elizabeth, for which Reizen was to pay the debt to Parks and Selman, and executed bond to that effect; exhibit No. 2 to Reizen’s answer, is the bond ; this was the only consideration; the land was sold to Parks under the deed; Reizen never paid Parks; Reizen married Mary Harding, for whose portion of the debt Pelatiah paid Reizen in the property, as stated in Reizen’s answer; Pelatiah is not indebted to Reizen; the land was worth $7000 or $8000. Pelatiah went to Arkansas in May or June, 1840; knows of the resale in 1842 ; the negroes are those mentioned in exhibit No. 4 of Pelatiah’s answer; Pelatiah had to take them back; Pelatiah sent the negroes from Alabama; Reizen did not claim them after May 2, 1842; I brought Anderson and Thomas to Mississippi; was to sell them for $1200 in specie; Parks refused to take any thing but specie; all the negroes left July 1, 1842, except Anderson and Thomas, who left July 2, 1842; the two sales were open and generally known; they were the property of Pelatiah before they left; placed the negroes with Rayford as the property of Pelatiah; Pelatiah could have paid much more than he owed in 1840; Reizen was then solvent ; there are no judgments against Pelatiah unsatisfied that I know of; there was a trial of right of property between McCampbell and Reizen, and the property made subject to Pela-tiah’s debt; was present at the signing the bill in 1840, but did not see Pelatiah sign it; the twelve negroes were worth $6000; the crop, com, cattle, hogs, &c., worth $800; Reizen sold some negroes to Judge Green; I started from Benton county, Alabama, with Anderson and Thomas, and went straight to Marshall county, Mississippi, distant 300 miles; it is not an indirect way; I left with the intention of taking Anderson and Thomas to Marshall, unless sold before I got there; the only object I had was to sell; they could not be sold in Benton county for the value in specie; the two were worth $1000 in Alabama money, or $750 in specie; Pelatiah and Reizen R. lived about forty or forty-five miles from Georgia line; I did not take Anderson and Thomas into Georgia; left Benton county in the morning about six or half-past; I was eight days on the road; tried to sell them on the road ; had power of attorney from Pelatiah, witnessed by the clerk of county court, to sell; was limited to $1200, and not authorized to sell for less; Reizen R. was insolvent May2,1842; in May or June, 1842, thinks in June, Judge Green bought Wiley and wife and child; the payment of $3000 was made by Reizen marrying Mary Harding; Pelatiah let him have Wiley and wife and child and Fowler in payment of the debt extinguished by marrying; these were worth $2500; Pelatiah and I had six or seven times as much property as would have paid the debt of $1700, on which we were sued in 1839 or 1840; the trial of right of pro-, perty was in the fore part of 1841; the parties in the deed of trust offered further time on conditions; I think in 1842, before I left, Pelatiah was to take off the negroes and sell them, and redeem the land from the trust; it was generally known that they would be sent from Alabama.
    Deposition of John R. Hogle. — The resale in 1842 was be-, cause Reizen R. had not paid the trust debt and some others he was to pay; took off five of the negroes, Letty, &c.; Fulling-ham went with me; Pelatiah sent me with them, to sell for. $1600 in specie; Reizen made no claim after May 2, 1842; could not get the amount; did not hear them say they were afraid the negroes would be sold for Reizen R.’s debts.
    Deposition of William Fullingham. — About last of June, or 1st of July, Reizen left word with his family, for him to come and see Pelatiah; he went next day. Reizen told him that he and Pelatiah wanted him to take off some negroes; their names were Letty, Liza, Harriet, Newton, and little Letty. The power of attorney spoken of in his former deposition was signed “Pela-tiah, by Reizen R.; ” was handed him by Reizen R. in presence of Pelatiah; the letter was written by Warren Baker; Pelatiah could not write nor read writing; Reizen R. transacted his business and signed his name; he attaches to his answer the power of attorney. Pelatiah desired him to take the negroes to Georgia, to sell for specie, with which he wanted to redeem his land. Pel-atiah paid me for running them; he and William J. Willis were unfriendly.
    Deposition of Benjamin Selman. — Was a party to the deed of trust; in 1840 or 1841 Pelatiah said he had sold twelve negroes to Reizen, to indemnify him as security to Parks and Selman; heard Pelatiah swear in court that he sold the negroes for this debt and sundry others. Peiatiah frequently craved indulgence on the debt; thinks, in 1842, he said he would run off negroes, and sell to raise the money. Gold and silver was scarce; Parks said he would receive nothing but silver. The land was sold in 1842, and bought by Parks for $ 1750.
    Deposition of M. M. Houston, clerk of county court. — Speaks of various unsatisfied judgments against Peiatiah Chilton, in his office; says there are some also in the circuit court. Asahel and Peiatiah Chilton, in 1840, were not worth six or seven times $1700.
    Deposition of Nathaniel Parks. — In 1840, Peiatiah told him he had sold the negroes to Reizen, to pay the trust debt by selling the negroes. The negroes offered to witness in 1802, by Peiatiah and Reizen R. Chilton were Wiley and Israel; Peiatiah never told him these two were sold to Reizen R.; demanded specie on the sale of lands.
    Deposition of Fletcher Fullingham. — In the fall of 1802, at his father’s house, Peiatiah settled with William Fullingham for running the negroes. Peiatiah wanted to go to Reizen’s, and get him to make the calculations, which Fullingham refused to do, saying that Peiatiah owned the negroes. Peiatiah exercised acts of ownership, both before and after running the negroes.
    Deposition of R. L. Porter. —There was but one trial of right of property, and that was for Bob; there never was but one bond given to try the right of negroes sold by Peiatiah to Reizen. In the summer of 1842, as sheriff, witness levied on James and his wife Nancy, and Adam, Frances, and Wiley, their children, to satisfy two writs of fieri facias in favor of Morgan and son ; they were claimed and bond given by Reizen R., who afterwards withdrew his claim, and the negroes were sold.
    Deposition of James Crow. — Heard Peiatiah swear on the trial, and that he had sold the negroes to Reizen, to indemnify him for paying a debt in Georgia, and having assumed the payment of sundry other debts, one of which was to the Bank of Montgomery; there was but one trial, &c. Is clerk of the circuit court and has been since the court was organized. There never was but one bond given to try right to negroes sold to Reizen by Peiatiah.
    
      Deposition of Warren Baker, taken in December, 1845. — In; 1841 and 1842, frequently heard Pelatiah complain that Reizen did not pay the trust debt; also heard him, in 1842, say that Reizen had not complied, and he had taken the negroes back; was a witness to the bill of sale in 1800. The consideration was the payment of the Parks and Selman debt. He meant to say, heretofore, that Pelatiah swore that Reizen had assumed to pay, not that he had paid some $5400 ; he also swore he was to pay the debt to Parks and Selman.
    Deposition of Warren Baker, taken in-June, 1846. — Knows William J. Willis, but does not know his character as a man of truth.
    The deposition of Edmund Samuels, Elisha Samuels, William Samuels, Aaron Green, Augustus-Yeo. — Know the general character of William J. Willis, and would not believe him on oath.
    Deposition of Asa Skelton. — Would be bound to believe him on oath, from knowledge of his character.
    Deposition of Reizen R. Chilton. — As to the transactions of sale, reiterates his statements in his answer. McCampbell gained the boy Bob in the trial of right of property. Pelatiah told Parks', in 1840, that he had sold me the negroes to pay the trust debt. I told him the same thing in 1840 and 1842 ; gave bond to try right of property to only one negro embraced in the bills of sale, viz. Bob. I did pay a debt in Georgia, in 1835, of six or seven hundred dollars, and one to the branch bank of the Montgomery Bank of four hundred dollars; in consideration of these, Pelatiah gave me lands in Benton county. I was not to pay any other debts than the trust debts for the negroes. Pela-tia^'employed Fullingham; he and Willis were unfriendly. Is acquainted with the character of Willis, and would not believe him on oath. Heard Pelatiah swear; he said the consideration of the sale was my assuming to pay the trust debt, and that for the Georgia debt and bank debt he had given me land. I transacted my father’s business; I brought Eliza, Letty, &c. to Mississippi as agent of Pelatiah; the trust debt was between five and six thousand dollars; all the negroes were on the premises lip to July 1, 1842, except Anderson, who was at my brother’s, four miles off. Don’t know that they were removed to avoid debts; when they were removed, I owed, exclusive of the Parks debt, about three thousand dollars, and my father not exceeding two thousand dollars; the negroes in the bill are worth twenty-five hundred. Pelatiah was embarrassed in 1840, but his property, at a fair valuation, would have more than paid his debts; has taken the benefit of the bankrupt law in 1843; was pretty well acquainted with Willis; don’t think he made a good officer; am satisfied he acted partially as an officer, which partly causes me not to credit his oath; but there was a great complaint against him; had an unfavorable opinion of him before he went into office. The negroes were really under Pelatiah Chilton’s control; (this was objected to on re-examination.)
    Deposition of Philip Hogle. — Would not believe Willis on oath.
    Deposition of Asahel Chilton. — Would not believe Willis on oath ; was not present when Fullingham was employed to carry, off the negroes.
    On July 7, 1846, on this state of pleading and proof, the ,case was heard and taken under advisement. July 18, taken under advisement during vacation. February 23, 1847, the decision of the court was made, dismissing the bill with costs. March 8, 1847, ordered that execution issue against securities in attachment bond for costs, and this appeal prayed and prosecuted.
    
      F. Anderson, for appellants,
    Argued the case orally, and filed an elaborate written brief, reviewing the testimony, and commenting on it. He cited also the following authorities. Rankin v. Holloway, 3 S. <fc M. 614; Harney v. Pack, 4 lb. 229 ; Pope v. Andrews, 3 lb. 135; Doe ex dem. Roberts v. Roberts, 2 B. & A. 369; Stark v. Littlepage, 4 Rand. 368.
    
      H. W. Walter, for appellees,
    Also argued the case orally, and in writing at great'length; and cited 1 Greenl. Ev. § 95, 200; Hutch. Code, 876; 5 S. & M. 622.
   Mr. Chief Justice Shakkey

delivered the opinion of the court.

The object of the bill is to subject certain slaves therein mentioned to the payment of the debts of the complainants. The case was before this court on a former occasion, and is reported in 1 S. & M. 423, to which we refer for the facts. On demurrer to the bill the case was held to be a proper one for relief in chancery. There is, therefore, no question of law now involved, but a question of fact only, which arises out of the answers which were filed after the case was remanded. The complainants seek to enforce claims against Reizen R. Chilton, but he disclaims the property in his answer, and says that it belongs to his co-defendant, Pelatiah Chilton, who, in his answer, asserts his claim. It is admitted by the answers that the negroes were sold by Pelatiah to Reizen R. in 1840; that they continued to be his property up to the 2d of May, 1842, when they were resold to Pelatiah. The bill of sale of the 2d of May, 1842, is introduced a.s evidence of this sale; Rut on the other side, it is contended that this sale was made to defraud creditors, and is therefore void, and the only question is, was this sale fraudulent ? This question depends alone on the weight of the evidence.

Pelatiah Chilton has introduced an apparent title, to overcome which it is incumbent on the complainants to establish that it was made to defraud creditors. A great number of witnesses have been examined on both sides, and the testimony is so contradictory as to defy reconciliation. There seems to be no alternative but to discredit some of the witnesses. In this conflict of testimony, the safest reliance seems to be on the force of certain leading circumstances or facts which seem to be well established.

There is one important fact about which there seems to be but little serious contradiction. It is this: the negroes remained in possession of Reizen R. Chilton until they were taken from Alabama about the first of July, 1842, although he had convey-them to his father, Pelatiah, on the 2d of May. This fact is established by the testimony of Walker, Fullingham, and Baker, the overseer. And even Reizen himself says they were left on the place. His place was about three miles distant from his father’s. It is immaterial whether he claimed them or not. To disclaim them under the circumstances was in no way calcu-. lated to weaken the presumption of fraud. If a fraud was intended by the bill of sale to his father, it was to be expected that he would endeavor to produce the impression that the transaction was a fair one, by disclaiming the property. None of the witnesses disprove this fact of possession. Whilst some of them may say that they regarded the property as belonging to Pelatiah Chilton after the 2d of May, 1842, yet none of them speak of an actual change of possession. To permit it to remain in the possession of Reizen R. made the transaction prima facie fraudulent, and the burthen of proof is thrown back upon Pelatiah; he must prove that it was bona fide.

The next important circumstance is, that the negroes were very suddenly, and, if we believe some of the witnesses, clandestinely removed from Alabama. That seems to have become rather a matter of public notoriety; so much so, that many of the witnesses speak of the negroes as having been t! run oif.” In this connection it is important to notice the testimony of William Fullingham. Reizen R. Chilton had called at his house to see witness, as he was informed, whereupon he went to Reizen R. .Chilton’s house; found Asahel Chilton, Pelatiah, and Reizen all there. Reizen addressed him, saying, we have a family of negroes here, and there are some old debts against them; we want you to put them out of the way; they asked him to start next morning, to which, after some hesitation, he consented. According to directions he went down the road leading south from the county, about four miles from Reizen’s house, and then waited until the negroes were brought to him through the woods by Baker (the overseer of Reizen R. Chilton,) and Pelatiah Chilton. Baker told him to take the negroes to a man named King, in Barbour county, near two hundred miles oif. Pelatiah gave him instructions as to the road, and told him to go pretty fast. This was on the 1st of July, 1842. The witness took the negroes to King, and gave him a letter which Reizen R. Chilton had handed witness the morning he received the negroes, which letter instructed King to take charge of the negroes, until further orders. This witness’s testimony in this particular is not contradicted, nor is his credibility impeached. He was subsequently examined by defendants, but he does not give a contrary statement. He merely explains a part of his former testimony. His testimony is corroborated by Baker, who says the negroes were “run off” about the 1st of July, 1842, to avoid certain judgments against Reizen R. Chilton, to the best of his recollection the judgments of complainants. Nor do the defendants pretend to controvert the statement of this witness (Fullingham) as to the time and manner of taking off the negroes by any question asked Reizen R. Chilton, who, in fact, corroborates the witness, by saying that he took off the negroes. We must regard the fact as established then, that the negroes were suddenly and rather secretly taken off. This is a suspicious circumstance, and, unexplained, is calculated to operate against the claim of Pelatiah. If he had made a bona fide purchase, why should he wish to remove the negroes? Honesty requires no stratagem or subterfuge to support and aid it. It was, therefore, incumbent on Pelatiah to explain this suspicious circumstance, in order to repel its influence. The prima facie case of fraud, then, arising from Reizen R. Chilton’s holding possession, is strengthened by the circumstance of this sudden removal, and both must be accounted for, in order to remove suspicion; but before we proceed to the explanation, it is to be borne in mind, that the next day after the five negroes were taken off by Ful-lingham, to wit, on the 2d day of July, two others were started to Marshall county, in this state, a distance of three hundred miles, in charge of Asahel Chilton, where they were placed in possession of the defendant Rayford.

To proceed then to the grounds relied upon to rebut these presumptions, and this will lead us somewhat into detail. It would seem that these negroes had originally belonged to Pelatiah Chilton. Pie had become involved, by being security in a guardian’s bond for one Barr. To secure this debt, he executed twelve promissory notes, dated in 1839, payable in one, two, and three years. To secure their payment, he also gave a deed of trust on bis land. This debt was between five and six thousand'dollars, but Reizen R. Chilton, afterwards married one of the wards to whom the debt was due. In 1840, Pelatiah sold the negroes to Reizen R., and made a bill of sale, which was regularly proven and recorded, although this was unnecessary by the laws of Alabama. The consideration expressed in the bill of sale is fifty-three hundred dollars, though it is said the true and only consideration was the agreement of Reizen R. Chilton to pay the debt for which the deed of trust was given; and to that end he executed a penal bond, bearing even date with the bill of sale, in the penalty of twelve thousand dollars, conditioned to pay the debt. This bill of sale was witnessed by Baker, who says, that both parties stated to him that it was a fair transaction. Reizen R., it is alleged, failed to pay the debt, except that portion which was coming to, him by his marriage with one of the two young ladies to whom the debt was due; and the trustee was about proceeding to sell. And as he had failed to pay the debt, he re-conveyed the remainder of the ne-groes, having sold a sufficient number to satisfy his own portion of the debt; and this is the bill of sale which was made on the 2d of May, 1842, which is said to be fraudulent. The consideration expressed in the bill of sale is $2600, though it is said the true consideration was as above stated.

Both Reizen R. and Asahel Chilton testified in the most positive manner that -this last sale was bona fide; that the negroes were conveyed because Reizen R. had failed to pay the debt which he had agreed to pay, as the original consideration which he had agreed to give. There are many circumstances disclosed in the course of the testimony which operate powerfully against this statement, and they seem to be so conclusive, that it is difficult to resist their force. Reizen R. was very much embarrassed, indeed insolvent. Two cases against him had been taken to the supreme court of Alabama, and this bill of sale was made but a short time before the judgments were affirmed. The witness, Baker, states that the negroes were run off to avoid the judgments of complainants, which were the cases that had been taken to the supreme,court. If the sale had been bona fide, this was unnecessary, as they were not liable in the hands of Pela-tiah for Reizen R. Chilton’s debts. Walker had a conversation with Reizen R. about July, 1842, and he did not then mention the sale to his father, although this conversation was held in reference to the negroes. A rumor, it seems, was in circulation that he would run his negroes; this was mentioned by Walker to him, when he said he would not, but would let them remain to pay his debts. If he had really sold them to his father, it is remarkable that he did not, under the circumstances, so state to Walker. This conversation was probably in June, as the witness says it v/as but a few days before they were run. Then his declarations to Fullingham, which were made in presence of Pelatiah Chilton, in which he said, We have a family of negroes here, and there are some old debts against them. Why should he have been so much interested in running the negroes of Pela-tiah Chilton 1 They were not liable for his debts. And when this remark was made, Pelatiah did not assert a claim to them.

In the next place we come to the testimony of Willis. His credibility was attacked by eight witnesses, who swore that they would not believe him. But ten others, (perhaps eleven,) swore they would believe him, and one of them was a witness introduced by defendant to impeach his credibility. By some of the witnesses he is spoken of in high terms of commendation as a man of integrity. Every presumption is in favor of the credibility of a witness, and although there is impeaching testimony, yet it is overbalanced. Under such circumstances we cannot reject it. But apart from the support which is given to it by the sustaining witnesses, the statements of the witness are, in several particulars, corroborated. Willis says that he heard both of the Chiltons say the negroes had been run off to avoid these debts. Both Fullingham and Baker corroborate this statement. The witness also testified that they said the cases had been taken to the supreme court, expecting to reverse them, and their security need not be uneasy. This witness also testifies that the negroes were in possession of Reizen R. Chilton until they were run off. This conduct and these declarations are wholly inconsistent with a bona, fide sale.

But the ground of doubt is not confined to this sale of the 2d of May, 1842. In all probability, the sale from Pelatiah to Reizen in 1840 was but a device. If this be so, then, there was evidently no consideration for the sale in 1842, which is made to rest upon the previous sale. What is stated to have been the consideration for the sale of 1840 ? That Reizen R. should pay the debt secured by the deed of trust. The first thing calculated to throw a suspicion over this transaction is the manner in which the bill of sale was executed, and the declarations of the parties at the time the contract was made. It was duly proven by the subscribing witness, and recorded. This was not necessary, and looks as though it might have been done for effect, to give the semblance of open reality to that which was fictitious. But both parties stated to the witness that it was a fair sale. Why should such a .statement have been made 1 Certainly men who were making a fair and valid sale, would hardly think it necessary to say so to a witness. They might have stated the consideration to him, but when they assure him that it is fair, it is calculated to give rise to a suspicion that it is not so. When the part is over-acted, the delusion is broken and the fiction appears.

But again, it seems that Pelatiah Chilton was very much embarrassed, and an execution was levied on one of these same negroes as his property in 1842, which being claimed by Reizen R., Pelatiah Chilton was introduced on the trial to prove his right. What he said on that occasion is variously reported. Most of the witnesses concur in saying that he swore he had sold the negroes to Reizen R., who' had paid for them by paying a debt in Georgia of $3000, and a debt due to a bank in Alabama and some other debts. This is the testimony of Wiley and Crow. Martin says .he swore that the consideration was sums of money paid and services. Walker says that he enumerated the debts which Reizen had paid for him, but the witness did not recollect them. Other witnesses speak of his swearing that a debt in Georgia was paid. It is said by other witnesses that the debt paid in Georgia was $700, and the debt to the bank $400. This- much seems to be certain, that he did say something about Reizen’s having paid something in Georgia, and other debts and sums of money for him, as the consideration. If this be so, the consideration was not Reizen’s agreement to pay the debt secured by the deed of trust and the bill of sale; and especially the penal bond, are not what they profess t,o be. Reizen told Parks that he had paid for the negroes in cash. He told another witness that he was security for his father, and had to take them to save himself. In his own testimony he stated that for the debt he paid in Georgia. ($700), and the bank debt, his father had given him land. How, then, did his father happen to mention these debts? According to his statement, they seem to have no connection with the contract for the negroes. But it seems the jury did not believe Pelatiah, and the property was subjected to the execution against him.

We have given much weight to the manner of running off the negroes, as a circumstance tending to show the fraudulent character of the bill of sale of the 2d of May, 1842. «The excuse set up for having done so is, that the object was to raise money to redeem the land. That is the reason set forth in the answer, and by the witnesses Asahel and Reizen R. Chilton. If the evidence sustained the respondent in this position, the excuse might be deemed sufficient as to every thing but the manner of sending them off. But let us examine the facts. The negroes were started on the 1st and 2d of July, 1842. The land was sold on the 12th of the same month, and we must suppose it had been advertised beforehand. Part of the negroes were started to Barbour county in Alabama, two hundred miles off, to be placed in the care of a Mr. King, not to sell, but to keep theta until further orders. Strange, indeed, that negroes should be sent to such a distance, when the money was wanting in ten days. But it must be kept in mind that neither Fullingham nor King was then authorized to sell. Fullingham returned, and for some reason or other was sent back to take the negroes to Georgia, and then it was that he received the power of attorney to sell, which is dated the 24th of July, twelve days after the land had been sold. Under this power of attorney, he took the negroes to Georgia, and, failing to sell, left them there. Reizen R. Chilton was sent after them, not to take them back to Benton county, Alabama, but to bring them to Mississippi. Whether he came through or round Alabama does not appear. Then with reference to the negroes sent to Marshall county, it was impossible, in the nature of things, that they could be taken three hundred miles, and sold in time to have the money in Alabama in ten days, a distance of three hundred miles. But there is another reason given for sending the negroes to Georgia and Mississippi, which is no less striking. The beneficiary ir the deed of trust would take nothing but gold or silver coin, which was very scarce in Alabama. Was it more abundant in Mississippi ? The testimony does not inform us, but if we may be permitted to speak of a fact of public notoriety, Ave should' say that it was quite as scarce here as in any other state. The negroes were ultimately all brought to Mississippi, and as a very conclusive proof that they were not brought here to raise money for a pressing emergency, two of them were sold by Pelatiah Chilton, after he came on, to Rayford, on a credit. The excuse then given for removing the negroes from Alabama makes the matter worse. The circumstances prove it to be a false one. But if the object was to raise money to redeem the land, why were the negroes taken off in the manner they were ? Why first sent to Barbour county, to be placed with King, without authority to sell them? And why send part to Barbour county and part to Mississippi ? The declaration of Pelatiah Chilton to Fullingham, after he returned from the first expedition, is remarkable, and accounts for the removal of the negroes to Georgia, with authority to sell. He stated that the property left in Benton county was levied on by Parks, Selman, Mc-Campbell, and others, and he was afraid it would be found out Avhere the negroes were that the witness had carried off; he wished the witness to get them and take them to Georgia and sell them; and insisted on ,the witness starting that night. The second expedition was thus got up. The witness went with Pelatiah to Reizen’s house, and received from the latter the power of attorney. It will be observed that, throughout, both the Chiltons seem to have been principal actors in the scheme. It is thus rendered. perfectly certain that the negroes were run off for the purpose of avoiding debts, either of the one or the other, and they are so connected in the transaction that it is impossible to separate them. Both are implicated, but the debts of Reizen seem to have been the great moving cause. We have said it was incumbent on Pelatiah Chilton to rebüt the presumption of fraud arising from the possession of Reizen. This he has not done satisfactorily. After reading the evidence with great care, it certainly falls short of satisfying the mind that no fraud was intended. That fraud in some shape or other was contemplated by both parties throughout the whole transaction, from 1840 up, is doubtless true. There are too many circumstances inconsistent with entire fairness. The witness, Reizen R. Chilton, may have thought it all fair, but the utmost reliance cannot be placed on his testimony. He was a party to the transaction, and confessed that he felt a great desire that his father should succeed in this suit, although he had no interest in the subject matter of the suit. And besides it is inconsistent with his former statements. Our conclusion is, that the sale from Reizen R. to Pelatiah was fraudulent as to creditors.

The question now arises, what decree shall be given 1 We can do nothing more than remand the cause. The complainants seem to have proceeded on the notion, that in their judgments recovered in Alabama they held a lien, and have not shaped the prayer of the bill so as to accomplish any thing more than a sale of this property. They must amend their bill so as first to get a decree for their debt, and for this reason the decree cannot be made final here.

There is a point, too, which strikes us as important, that -has been overlooked by counsel. Reizen R. Chilton is a bankrupt. How are the complainants to enforce their claim against him I They have no lien in this state to protect them. We suggest this point as worthy of consideration. Indeed, it seems to present a great obstacle in the way of the complainants’ success.

Decree reversed and cause remanded.  