
    A. Mizell vs. Samuel Herbert.
    The defendant in an attachment suit at law, is a competent witness in behalf of a complainant in a bill in chancery, who claims the property attached, as belonging to him, and not to the defendant in the attachment; notwithstanding that the latter is charged with having made a fraudulent sale of the attached property, to such complainant, on which his claimis based.
    But it seems he would not be competent if he were a party to the suit in chancery, or liable personally for the costs in the attachment suit at law.
    The complainant in a bill in chancery, claimed a slave attached in a suit at law, as the property of another, as belonging to his intestate, who was a brother of the defendant at law ; the plaintiff at law alleged in his answer, that the slave was fraudulently sold by the defendant in the attachment to his brother, but insisted, if the sale was fair, he could subject the distributive share of the defendant at law to his debt, and made his answer a cross-bill; which complainant answered, and denied the fraud in the sale, stating that it was bond fide; the defendant at law as a witness, testified also to the bona fides of the sale; on the other hand, several witnesses proved the intestate’s declaration of his brother’s having conveyed his property to him, to avoid a debt, but only one witness mentioned the slave as having been said to have been so conveyed; held, that in view of the positive answer and proof of the Iona fides of the sale, a decree should be rendered for complainant.
    
      Held, further that no decree could be rendered, subjecting the distributive share of the defendant at law'in the sale, to the debt of the plaintiff at law, because he had no judgment.
    On appeal from the superio’r court of chancery; Hon. Stephen. Cocke, chancellor.
    On the 30th of May, 1844, A. Mizell, administrator de bonis non of John Gibbons, deceased, alleges in his bill that his intestate died in July, 1841, the owner of a slave named Isaac ; leaving no heirs but his brother Matthew, William, and complainant's wife. William administered, but neglected to render an inventory until April, 1844, when he returned one and resigned, and complainant was appointed on the 23d of April, 1843. While William was absent from the state, Samuel Herbert attached Isaac, as the property of William, and the attachment suit was still pending; that William owed John more than his distributive share of the estate, and had no interest in the slave attached, &c. He prayed for injunction against the further prosecution of the suit, &c.
    Herbert answered, and made his answer a cross-bill; in which he denies Isaác to be the property of John Gibbons’s estate; that William Gibbons bought him in 1839, and paid for him; if the bill of sale was made to John, it was fraudulent; if any bill of sale tó John, it was fraudulent. William had the slave in possession after John’s death, and never inventoried him as John’s until after the attachment was levied, though he took out letters in 1841; whatever title John has is fraudulent. But if it should appear otherwise, he insists on William’s distributive interest in the slave being decreed'subject to his debt.
    Mizell replied to the cross-bill, admitting the purchase of Isaac by William in 1839, but stating that William was then much in debt to John, and in August, 1840, sold him Isaac in part payment of the debt, and filed the bill of sale with his answer. He denies all fraud, and insists at length that the sale was bona fide and fair. He also states that John’s estate was insolvent.
    It is not deemed necessary to set out the proof at greater length than it is done in the opinion of the court.
    The chancellor dissolved the injunction and dismissed the bill, and Mizell appealed.
    
      D. W. Adams, for appellant,
    Cited Murphy v. Clark, 1 S. & M. 221; Beatty v. Smith, 2 lb. 567-; Sevier v. Ross, 1 Freem. Ch. R. 519.
    
      
      D. Shelton, for appellee,
    Cited 3 Johns. Ch. Rep. 612; 2 Yes. Sr. 628; lb. 223; Tom- ■ lyn’s Ev. 99 ; S. & M. Ch. 157; H. & H. 634; lb. 653; 4 Wheat. 433; 4 Cond. Rep. S. C. U. S. 510.
   Mr. Chief Justice ShaRKey

delivered the opinion of the court. ■

On the 23d of April, 1843, Herbert sued out an attachment on an account against William Gibbons, which was levied on a slave named Isaac. Pending that suit, the complainant filed this bill, and prayed an injunction to restrain the sale of the negro, on the ground that he did not belong to William Gibbons, but was the property of John Gibbons's estate, on which the plaintiff was administrator de bonis non, William Gibbons having been originally appointed administrator. The respondent answered, denying the allegations of the bill, and charging that if the negro had been conveyed to John by William Gibbons, such conveyance was fraudulent. The .answer is also made a cross-bill, by which complainant seeks to subject William Gibbons’s distributive share of the estate of John Gibbons to the payment of his debt, if it should turn out that the sale was' valid.

Passing by tlje question of jurisdiction which was raised, the case must depend on the admissibility of William Gibbons as a witness. He proves that he sold the negro to his brother in 1840 for a full consideration, and makes the bill of sale an exhibit to his deposition. But it is contended that he had such an interest in the suit as should exclude his testimony, but this objection seems not to be well founded. He was defendant in the attachment, it is true, but not for that reason liable for costs if Herbert should succeed. In that case the costs would be payable out of the attached property. Gibbons was not personally liable. ■ In the case of Whipple v. Lansing, 3 Johns. Ch. Rep. 612, it was decided, that a defendant charged with fraudulently colluding with his co-defendant in the transaction sought to be impeached, cannot be a witness, especially when he has an interest in the • cause. And in Pope v. Andrews, 1 S. & M. Ch. Rep. 135, it was held, that a co-defendant so charged could not be a witness when he was liable for costs. These cases do not exclude Gibbons. He is not a party to the suit, nor is he liable for the costs. The evidence on the other side is very strong, to be sure, though less certain and conclusive. It consists mostly of statements made by John Gibbons in a conversation with William Nichols. One of the witnesses says, that John Gibbons said that the negro had been conveyed to him to avoid a certain debt of William Gibbons; the other witness says, that John Gibbons stated that the house and lot had been conveyed for that purpose, but that he did not remember any particular reference to the negro. A third witness heard a conversation with William Nichols, probably the same above referred to, in which John Gibbons stated that his brother had made over all his property to him to avoid a certain debt, but only remembers to have heard a house and lot mentioned. In the absence of positive proof to the contrary, this evidence might be regarded as sufficient to justify a belief that the sale was fraudulent; but we have the positive testimony of William Gibbons, and the positive statement of the complainant in his answer to the cross-bill, which calls for a discovery, that the sale was bona fide. We are not at liberty to reject both, ánd adopt evidence less certain and satisfactory.

The cross-bill cannot be sustained. It prays, if the sale should be found valid, that William Gibbons’s distributive share nmy be subjected to the payment of the debt, of which there is no proof. But the debt has not been reduced to judgment, and the estate, moreover, is said to be insolvent.

Decree reversed, and injunction made perpetual as to the negro mentioned in the bill.  