
    David Rowe and Others, v. John Cockrell and Others.
    The testimony of one witness is sufficient to prove fraud, although denied by the answer, if corroborated by the circumstances of the case.
    A fraudulent sale will be declared void at the suit of creditors: and a sale by the sheriff, under execution, for an inadequate price, may be avoided by the creditors of the defendant, upon proof, that the purchaser combined with a third person, who claimed the property under a fraudulent bill of sale, and forbade the sale by the sheriff; or prevented competition, by fraudulently deterring other persons from bidding. And it is fraudulent to deter even a deputy sheriff from bidding, although he is prohibited from purchasing, by the act of 1823; for it is optional with the parties interested, to confirm, or set aside his purchase. But where a sale by the sheriff is set aside, the purchaser is intitled to be refunded the purchase money, from the proceeds of a re-sale.
    Bills in Equity are not evidence against the complainants, of the facts stated in them, although they were formerly so regarded. At present, it is evidence only of the fact, that it was filed, and of such matters as are the subject of reputation, and hearsay evidence, as the complainant’s pedigree, and the like, and even of these some doubts exist.
    The plaintiff, in an execution, is intitled to the proceeds of property sold under it, although the defendant’s title to the property is disputed: and he is not, therefore, an incompetent witness in a suit, in which the defendant’s title is brought in question; although an action at law may be pending against the sheriff, for levying on the property, by a third person, who claims to be the owner. It would be otherwise, if the plaintiff had indemnified the sheriff, or there were any equitable circumstances, which would authorize the latter to retain the money in his hands, as an indemnity, until the action against him was determined, in either of which cases the plaintiff would then be interested, and therefore an incompetent witness.
    A sheriff is not bound to risk becoming a trespasser; and if the title to property levied on be disputed, he has a right to demand ample indemnity before he proceeds. He is not bound to act, even if indemnity be tendered; but he may leave the parties to their remedy in Equity. If, however, he does levy and sell, the execution creditor is intitled to the proceeds of the sale; unless the sheriff has levied without notice of the disp uted title, and is sued before paying over the money, in which case he may, perhaps, retain it as an indemnity.
    A witness interested in one part of a case, and therefore incompetent, may, nevertheless, be examined as to other points, in which he is not interested.
    This was a bill to set aside certain sales, as fraudulent; and came onfor hearing, at Fairfield, in June, 1829, before Harper,Chancellor, from whose decree the case will be fully understood.
    Harper, Ch. On the 23d of February, 1827, Hugh Y. Neil executed a bill of sale, of four slaves, to the defendant, James Cockrell. The consideration stated in the bill of sale, is $700. These slaves, on some suspicion that the sale was fraudulent, were afterwards levied on by virtue of sundry executions of some of the complainants, against Hugh Y. Neil, and exposed to sale by the sheriff of Fairfield, when they were bid off by the defendant, John Cockrell, at the price of f375. The bill is filed by judgment creditors of Hugh Y. Neil, charging both the sales mentioned to have been fraudulent, and claiming the slaves to be re-sold, for the satisfaction of their demands. The sale to James Cockrell is impeached, as having been colorable with a view to defeat creditors. At the sheriff’s sale, the bidding is said to have been prevented, by a fraudulent combination between John and James Cockrell; by means of which the former was enabled to purchase the property at a price far below its value.
    
      We are to examine, in the first place, the sale of 23d February, ^327; to James Cockrell. There is no doubt that Hugh Y. Neil was Hrgely indebted at the time, and became totally insolvent soon after. The determination as to the character of that sale, must depend principally on the testimony of Henry Jones, who was sworn on the part of the complainants. His testimony was, that he was present on the 24th February, 1827, at the store, a sort of grog shop, of John Tidwell, when the defendant, James Cockrell, ostensibly paid to Hugh Y. Neil, six hundred dollars, said to be the balance of the purchase money of the slaves in question, which Cockrell stated he had the day before purchased of Neil. According to the answer, $100, of the purchase money had been paid on the previous day, the 23d, when the bill of sale was executed ; and Cockrell had given his note to Neil, for the balance, $600, the amount paid on the 24th. After the payment, Neil gave the money to the witness, who returned it to Cockrell. Cockrell had borrowed of the witness $200, to enable him to make this pretended purchase, which witness received back on the same day. It was Hugh Y. Neil’s own money which was thus lent. The witness’ mother had purchased a negro of Neil, for $500. She settled part of the price, by paying off attachments against Neil; and paid him $380, or $385 in money, which Neil left in the hands of witness to keep for him. Cockrell borrowed part of the money, to make the payment, from old Mr. Tidwell, which witness saw paid back to him, or some of his family, the same day. Witness some month’s after paid the $380, or $385, to Mr. M'Dowell, for the creditors of Hugh Y. Neil, by an order of Neil.
    This was the substance of the witness’ testimony, with respect to this transaction ; and if we are to rely upon it, it is certain, that the sale and payment were colorable and fraudulent. Against the effect of this testimony, it was argued that the fraud was explicitly denied by the answer of James Cockrell, and that more than one witness is requisite to discredit a defendant’s answer; at all events, a single witness must be supported by strong circumstances. It was also urged that the credit of Jones was lessened, and that of the answer supported by other testimony in the case.
    The rule is, that a single witness must be supported by strong circumstances, to discredit the answer; but it appears to me that there are such in this case. The circumstances that go to impeach the credit of Jones, will afterwards be considered. I refer, in the first instance, to the testimony of Adam Hassan, an unexceptionable witness. His statement is, that after the sheriff’s sale, when the negroes were bid off by John Cockrell, he heard James Cockrell say, that the negroes were his; and that he would sue the sheriff, and make him pay up the difference between the amount bid and their value. He said, “ now, I ask no odds; I have Hugh Y. Neil’s title, and will-have" the sheriff’s.” Now, this is competent testimony against James Cockrell, whatever it may be against John ; and goes directly to shew, that the purchase by John was made on James’ account, or, at all .events, upon some concert or understanding with him. In this respect Hassan agrees with Jones, who states, that on the day of sale, he heard James Cockrell say, that John had purchased for him. Here are the requisite two witnesses to disprove the denial of James Cockrell’s answer .of combination with John. This denial, to be sure, is somewhat evasively made; but the impression that it was intended to make, that he had no interest in the second purchase, cannot be mistaken. The evidence detracts materially from the credit of the answer. That he should be concerned in purchasing the slaves at an under value, when he was giving notice of his alleged title to prevent the sale, and expected to recover their value from the sheriff, gives no favorable impression of the fairness of his conduct.
    I draw inferences to the same effect from circumstances in the testimony of Hugh Y. Neil, who was examined on the part of the defendants. I think it hardly necessary to say, that I place no reliance on the veracity of this witness. Both the substance and manner of his testimony, shew him to be utterly undeserving of the smallest credit. I only refer to what came from him as circumstantial evidence"; the effect of which depends, in no degree, on the credit due to the witness. Such a circumstance is, his being unable to give any account as to how he disposed of the $600, which he stated himself to have • received from James Cockrell; as he certainly could have done, if the money had been his own, and disposed of by him. He said, to be sure, it had been taken from him; but by what means he did not know : a suspicious stoiy in itself. But he said the same thing with respect to the $500, he had a short time before received from Mrs. Jones; a coincidence altogether improbable. In addition to which we have the testimony of Mr. Nott, ■and Mr. M'Dowell, that when he was examined respecting the money, before the commissioner of special bail, on his application to be discharged under the Prison Bosunds Act, he prevaricated, and said he had paid debts with it, but could not specify the debts; and finally made out the story of his having lost it.
    Another circumstance- struck me with some force in the testimony this witness. When he was asked whether it w.as a fair sale or a ehaim,he'replied, (and I think I have taken downhis words verbatim,) “It was afair sale to Mr. Cockrell. There was no incumbrance on the negroes; he had sold land to pay off all executions against him.” The witness must have been aware, that the fraud inquired after was on his own creditors. To this he evaded answering, but with some'dexterity made the impression of his having denied the fraud; in fact only denying a fraud on Cockrell, which had never been suggested. I suppose that some remains of conscience induced the witness, anxious- as he evidently was to support the sale, to evade this question, Those who are very capable of crime, will often scruple to commit one unnecessarily, and the most hardened perjurer will.avoid direct falsehood, when he can make evasion serve his purpose. A course recommended no' less by prudence than conscience.
    Itwas- a circumstance which made some impression on me, that the defendant, James Cockrell, attempted to .prove, that he had a short time before received money, in order to shew that he had the means of making this payment. Lewis Tidwell stated, thathe had a short time before paid him $60, and that on the day of the payment he lent him $36, and his (Tidwell’s) father, $75. The witness Martin said, he had a short time before paid him $233. - These sums together make $404, and added to the $200, which Jones states himself to have lent, would precisely enable Cockrell to make the ostensible payment of $600 ; supposing the alleged payment of $100-, on the day before to have been apochryphal. If Cockrell had this money on the previous- day, when he made the contract and took the bill of sale', no reason appears why he did not then pay it, but gave his note instead, tobe paid one day afterwards. . Or if he had it not, no account is- given- o-f bis obtaining, it in- the interval. If in this short interval he made up so considerable a sum, it is not likely that he should be unable to shew any source from which it was obtained, beyond what was lent to him by the Tidwells. These circumstances tend to confirm Jones’ testimony.
    The testimony of Jones is attacked first, from what is stated himself, that he was accessary to the fraud by his own account, and had given evasive answers, and such as were likely to mislead, when questioned on this transaction. Next, the proof of his having made statements formerly, inconsistent with his present evidence, is relied on; and lastly, contradictory circumstances testified 'by other witnesses. He certainly stated himself to have been an accessary to the fraud ; and under ordinary circumstances, I should think that this detracted much from the effect of a witness’ testimony. ¡But in the present instance, when so many witnesses, themselves of the highest character, have concurred in giving so uncommonly good a character to this young man, I cannot prevail on myself to allow much weight to the objection. I must consider it as one of those casual lapses from a generally correct conduct which do not materially affect subsequent character, provided they are held in mind as remembrancers to adhere with more firmness and vigilance to a course of integrity. He was very young too at the time, and with the facility of his age, may have been led by an artful and plausible person, who was also a family connexion. At all events, he is far more deserving of eredit than any of the witnesses, whose testimony comes in collision with his. Having so far lent himselfto the fraud,, he naturally judged it matter of consistency, and in some degree of' good faith, not to betray it. This he could effect in no other way than by evading, when he was questioned. Several of the witnesses, however, testify to more than evasion; to direct contradiction between his former statements and present evidence. These .are Hugh Y. Neil, Lewis Tidwell, and M'Cullough. Of the testimony of the first I have already expressed my opinion. Tidwell could not tell whether he was drunk of sober when he heard Jones say it was a fair sale. And Mr. John Harrison, an unexceptionable witness, testified to direct and repeated contradictions between what he had formerly stated, and has now sworn. As to M'Cullough, the testimony of character is not decided. It is enough to say, that in balancing between the two, I think Jones’ evidence to be decidedly preferred.
    
      The other circumstances relied on, are hardly worth commenting Upon< Several of the witnesses who were present at the payment, swore they saw nothing unfair. This was to be expected. If the Part*es ^ta<^ a fr£md i» view, they went to this place of public resort, to give an ostentatious publicity to a transaction apparently fair. I place no reliance either, on the testimony of the witness Stone. He does not speak very positively; the circumstance was one in which he was likely to be mistaken; and from the testimony of his habits and character, the accuracy of his recollection, if not his credibility, is questionable. The testimony of Cohen, that while Jones was yet at the store, Neil stated he had no money, is quite as conclusive on the other side. ■ In some particulars in which the testimony of Jones has been questioned, it has been confirmed in a way which will hardly admit of mistake. Hugh Y. Neil denied that Jones had any money of his in his hands. Here Jones supported himself by having paid the money to Neil’s order. Jones stated that his mother had bought a negro of Neil, for $500, that she had paid off some attachments against Neil, and that the balance of the money, amounting to #380 or #385, was deposited in his hands. Mr. M'Dowell testified, that in his examination before the commissioner of special bail, Neil was able to specify two attachments against him, amounting t o #118, which had lately been paid off. If these were paid off by Mrs. Jones, it would leave the precise balance (between #380, and #385, or #382,) which Jones stated to have been in his hands. I cannot doubt of the fraudulent character of the sale to James Cockrell. We come next to consider the sheriff’s sale to John Cockrell.
    The title of James Cockrell to the property being fraudulent and invalid, it is not doubted that it was fraudulent in him, to give notice of his pretended title, with a view to prevent bidders. But it is contended, that J ohn Cockrell’s purchase cannot be affected by this, unless combination between himself and James Cockrell be shewn; or he is proved to have done something to prevent fair competition atthe sale, of which it is urged there is no sufficient legal evidence. Perhaps a question might be made, how far a purchaser of property, for an adequate consideration, by means of the fraud of another, should be permitted to avail himself of that fraud by reclaiming his bargain, though there was no combination or fraud on his part. Certainly if' the matter rested in agreement, this Court would not decree a specific performance under such circumstances. At all events, James Cockrell, if lie be of ability, is liable to make good the loss that has been occasioned by his fraudulent act. I am of opinion, however, that there is sufficient evidence of combination and fraud on the part of John Cockrell.
    The testimony of John Neil, who was one of the judgment creditors of Hugh Y. Neil, is direct to both purposes. His testimony is, that he would have bid for the property $550, or $600, but was prevented by John Cockrell, who told him “if he would not run up the negroes he should be secured in his money.” He talked several times with James Cockrell, and said, “we must not make a particular bargain, or it will vitiate the sale, but you know our understanding.” Now this is evidence enough against John Cockrell, that he acted in concert with James to prevent bidding, and that he obtained his bargain by that means. It is hardly necessary to notice the objection, that John Neil was a deputy sheriff, incompetent to purchase at a sheriff’s sale, under the act of assembly, and therefore it was no fraud to deter him from bidding. It was a fraud to deter him by this inducement. The object of Cockrell, and the effect as to the complainants, were the same. If Neil had bid off the property, those who were interested would have had an option to confirm the sale, or set it aside.
    The principal objection, however, is again, that here is but a single witness; and something more is necessary to prevail against the express denial of the answer. I think there are sufficient circumstances to give the preponderance to the witness. John Cockrell states, in his answer, that he was informed, and believes, that James purchased the slaves honestly, and for a full consideration, without fraud. Now, either this allegation is false, and then his answer is discredited : or he was willing to give $375, for the slaves, which he states was near two thirds of their value, believing that another had a good title and he might lose them,, which is incredible; or he was acting in concert with his brother, or as his agent. Whichever of these alternatives be adopted, I think it is so strong against the defendant, as to give the preference to the testimony of the witness. I cannot but think the last, however, the probable and true one. 'All the circumstances of the case seem, I think, to indicate that both the Cockrells were conscious of the invalidity of the first title, but hoped to make such use of it as to secure them a good bargain on ' , . & 6 the second sale.
    John Cockrell, in his answer states, that he has sold all the negroes but one ; but that they are still in his possession. No proof, however, is given of this sale, and I must regard them as in hi* power, and decree them to be delivered up. Upon my conviction of a combination, the decree must be against both John and James Cockrell.'
    It is therefore adjudged and declared, that the sale, purporting to have been made on the 23d February, -1827, by Hugh Y. Neil, to the defendant, James Cockrell, of the slave-Tenah, and her childdren, Harriet, Jane, and Maria; and also the sale of the same slaves, made by William Moore, sheriff of Fairfield district, on the first Monday' in August of the same year, to the defendant, John Cockrell, were fraudulent and void : and it is ordered and decreed, that the said defendants John and James Cockrell, deliver up the said slaves, with their increase, to the sheriff of Fairfield District, to be sold under execution for the satisfaction of the complainant’s demands, and that the said John and James Cockrell pay all the costs of this suit.
    From this decree the defendants appealed,, and moved that it might be reversed, on the following grounds :
    1. That the evidence was not sufficient to warrant the Chancellor’s conclusion, that the sale from Hugh Y. Neil to James Cockrell was fraudulent.
    2. That the evidence was not sufficient to warrant the conclusion, that John Cockrell was guilty of combination and fraud, in his pur chase at the sheriff’s sale. '
    3. That the Chancellor ought not to have rescinded the sheriff’s sale, without requiring the purchase money to be refunded to John Cockrell.
    4. That John Neil was an incompetent witness, and having been objected to, ought not to have been examined: and therefore, even if the decree is not reversed, a rehearing should be ordered.
    Gregg, for appellants.
    There is no rule by which to measure the strength of the circumstances sufficient to corroborate the testimony of one witness, so as to overthrow an answer. In general it must be left to the judgment of the Chancellor to decide as to their weight; but to bring them within the rule at all, it is certain ly essential, that the circumstances should directly conflict with the answer. Here the Chancellor has contrasted a part of the answer with testimony, not relating to it,- but to another part of the case ; and this is held to be a circumstance to discredit the answers of both defendants. This it is submitted is inconsistent with the whole spirit and principle of the rule. Savage v. Brocksopp, 18 Ves. 335.
    The evidence to fix John Cockrell with the charge of combination, in contradiction of his answer, stands upon a still more slender foundation. It rests, in fact, only upon the evidence of John Neil, that John Cockrell induced him not to bid. But John Neil was for-forbidden by law to purchase at the sale : and the Chancellor is mistaken in supposing that Neil’s purchase was capable of confirmation; for by the act of 1823, it was not merely voidable, but absolutely void. Acts of 1823, p. 51. If, however, Neil could have lawfully bid, the inducing him not to bid, cannot .vitiate the sale. Not bidding is not a sufficient consideration to support an assumpsit; but no case can be found in which a sale has been set aside, because the purchaser induced other persons not to bid. Jones v. Caswell, 3 Johns. Ca. 29. Thompson v. Davis, 13 Johns. 112. It is analogous to the employment of puffers, which it is well settled, will not affect the sale. Jenkins v. Hogg, 2 Treadw. 821. Bramley v. Alt, 3 Ves. 623. Sugden on Vendors, 19.
    On the third ground it is unnecessary to make a remark. The right of the defendant to be refunded does not require argument; and the omission of an order to that effect in the decree was clearly an oversight.
    That Neil was not a competent witness is equally clear. He had indemnified the sheriff against the title of James Cockrell, and was, therefore, directly interested to defeat his title. It is said that there was noproof of this indemnity: but the proofisto be found in the complainants’ bill, in which the fact is distinctly alleged. Besides, it is-conceded, that John Neil is the oldest execution creditor of Hugh Y. Neil, and therefore intitled to the money arising from the sale, if the sale to James Cockrell is set aside. In fact an action is now pend-at law against the sheriff by James Cockrell, for a tresspass- in making the levy ; which action it is doubtless the object of this bill to supersede. In both respects, therefore, John Neil was an interested and incompetent witness,- and ought not to have been examined.
    
      Clarke, contra.
    
    The Chancellor’s commentary upon the evi¿ence nee¿g no argument to support it. It is clear and conclusive throughout. But if we were to weigh the force of circumstances anew, what circumstance could we regard as more effectual to cor- ’ ° robórate a witness who contradicts one statement of an answer, than proof that the answer is false in all its other allegations 1 It is the rule of law, and of common sense, that if an answer he discredited in one particular, it is discredited throughout.
    To permit John Cockrell to retain his purchase, obtained, at a grossly inadequate price, by the means brought home to him by the proof, would be contrary to all the law that has ever been written. 4 Dali. 218. Newland on Contiacts, 352. It is said that a purchase by Neil would have been void ; but as a creditor he had a right to see that the property brought its value : and whether he could lawfully bid or not,he intended to do so; and John Cockrell’s interference prevented competition.
    As to the competency of John Neil it is sufficient to say, that he had not indemnified the sheriff; and ho was intitled to the proceeds of the sale, whether James Cockrell succeeded in his action at law, or not. He had no interest in this suit, therefore, and was very properly received as a witness.
   Evans, J.

delivered the opinion of the Court.

This Court is satisfied with the Chancellor’s decree in this case so far as it goes; but it was.due to the defendant, John Cockrell, that in ordering him to deliver up the negroes to be re-sold by the Sheriff, the money, paid by him for the purchase of them, should have been directed to be refunded. The decree therefore in this particular is amended, and the sheriff is ordered to refund to John Cockrell out of the money arising from the re-sale of the said negroes the sum of three hundred and seventy-five dollars.

The fourth ground of appeal was pressed with much earnestness on the Court, and it thought proper to discuss the principle upon which it is founded. The objection is that John Neil was an incompetent witness, and therefore should not have been sworn. The witness is said to be incompetent for two reasons: 1st. that he had indemnified the sheriff: 2nd. that being a judgment creditor he was interested in the result of the suit.

The fact upon which the first ground is predicated, is denied, and there is no evidence of its truth, except that it is so stated in the bill. Formerly indeed it was held, that bills in chancery were evidence, against the complainant, of the facts stated in them ; but this notion has been overruled, and they are now held to be evidence only of the fact of filing the bill,and of such other matters as are the subject of reputation, and hearsay evidence, as the complainant’s pedigree, and the like: and even of this some doubts have been made. Peake’s Ev. 85. This ground of objection cannot therefore prevail.

In the second ground there is a seeming difficulty, but it is believed that the difficulty is only in appearance. It is said, that the witness, John Neil, is interested in procuring a decree of the Court of Equity, which will put an end to an action at law, upon the decision of which depends his right to receive the money in the sheriff’s hands. Now, in the first place, John Neil’s right, as the oldest judgment creditor, to receive- the money in the hands of the sheriff, does not depend on the decision o'f the action at law between James Cockrell and the sheriff. The sheriff has sold the interest of H. Y. Neil in the negroes; and upon this interest the creditors had a lien. This lien the sheriff has extinguished by the sale, and substituted the money arising from the sale in lieu of the lien ; and shall the sheriff extinguish the lien of the creditor, and not give him the proceeds of it ? I apprehend not. The sheriff is not bound to risk becoming a trespasser ; and if the title to property levied on be disputed, he has a right to demand ample indemnity before he proceeds. He is not bound to act even if indemnity be tendered to him, but may leave the creditor to his remedy in the Court of Equi. ty : where he will find ample relief against the fraudulent claims, usually interposed to protect the debtor’s property against the just claims of his creditor. If the sheriff does however act, the execution creditors will be intitled to the money arising from the sale; and the sheriff must look to the indemnity, if he has taken one, and if he has not, it was his own folly to act without. Tt does not follow as a consequence of this, that the sheriff will not be allowed to retain the money, where he has become involuntarily a trespasser, and had no notice of the adverse claim until after the sale. It may be, that in such case if he be sued before he has paid over the money, he would be allowed to retain it as his indemnity.

But even admitting that John Neil’s right to demand the money in the sheriff’s hands depended on the decision of the action at law between James Neil and the sheriff, still he would be competent to prove what he was called to prove. The decision of the action at ^aW ^ePent^s on question, whether the sale by H. Y. Neil to* James Cockrell, was fraudulent, or not. John Neil’s testimony has-no relation to this question ; and should it be rejected, and the bill' dismissed as to John Cockrell, yet the decree as to James Cockrell, depending on other testimony, would not be interfered with. It follows from the reasoning, that admitting John Neil to be interested in the question depending at law, between J ames Cockrell and-the sheriff, and that he might be incompetent to testify on that point,as the decree in this case would put an end to the action at law yet the fraudulency of the sale from H. Y. Neil to James Cockrell,being established by other testimony, and his right to the money in-the sheriff’s hands being clear and unquestionable, he had no interest in the other question, whether the purchase of John Cockrell1, was set aside or not. The money in the sheriff’s hands will pay.' his debt, and he has no interest in increasing it by a resale of thenegroes.

Decree modified.  