
    Eliza Smith, by her friend, vs. John Littlejohn.
    A father is a competent witness to pi*ove a gift by himself to his chilcL A bona Jidé gift7 though voluntaiy, is not fraudulent against a subsequent creditor.
    TROYER for a negro girl Lucy-.
    
    The plaintiff, a minor, claimed the girl in question under a parol gift made to her b.y her father John Smith, eleven }?ears anterior to the commencement of this action.
    The defendant held under a bill of sale from the sheriff who sold by virtue of an execution, in the case of Dawkins Sf Littlejohn vs. John Smith, in which case judg ment was entered up on the 30th of May, 1820.
    
      John Smith and his wife, (the father and mother of the plaintiff,) were received as competent witnesses to prove the gift which was made to the plaintiff when Lucy was an infant in arms, on the suggestion of the nurse. At the time of the gift, John Smith, the donor, was not in debt except to a very small amount, (a few pounds,) when he-contracted the debt with Dawkins. S,- Littlejohn. Smith stated that Dawkins was informed of the parol gift made to the plaintiff. This, however was denied by Dawkins.
    
    It appeared very satisfactorily that the gift had been made without any intention or motive to commit a fraud. Several of Smith’s neighbours were examined as to the notoriety of the gift. Some had heard of it, and others not.
    It appeared further, that when Dawkins had required a mortgage of property from Smith, to secure some debt which had accrued subsequent to the gift, but prior to the judgment, he was told that the negro girl Lucy could not be included with her family in the mortgage as she was the property of the plaintiff. This mortgage was after-wards satisfied.
    It further appeared that the defendant had notice of the gift prior to his purchase. The judge in his charge di * rected the jury to find for the plaintiff, should they be satisfied that the parol gift had been made bona fide, and prior to the debt, and that Dawkins had notice of it prior to the credit given to J. Smith. He further stated, that ás the plaintiff was an infant, residing with her parent, the possession of the negro by the father was not inconsistent with her claim, and that being an infant, she was not required to give notice herself to the defendant.
    A verdict was rendered for the plaintiff.
    A motion was now made for a new trial on the following grounds:'
    1st. Because, under the circumstances of the casé, Smith and his wife were incompetent witnesses.
    2d. Because the judge erred in stating that a voluntary-gift is good against a subsequent purchaser for valuable consideration.
   Mr. Justice Hioger

delivered the opinion of the court:

The circumstances under which Smith and his wife stood to the plaintiff were very well calculated to affect their credibility ; but nothing has appeared which could destroy their competency. They had no direct interest in the event of the suit, and the judgment to be rendered could not be evidence in any ease in which thereafter they might be parties ; although the policy of the law has excluded other witnesses, as a negro, one convicted of an infamous crime, a wife for or against her husband and others, yet it is not to be understood that the court is at liberty to exclude one, because, from the peculiar circumstances of the case, it may he thonght impolitic to admit him. To be excluded, he must be brought under some exception already established and defined. To do more, would be to legislate. It is much safer to weigh these circumstances, when estimating the credibility of a witness than to apply so loose a rule to his competency. On the first ground, therefore, the motion must fail.

The second ground assumes a fact which is contradicted by the testimony. The contest was not between s, Y0¿ luntary donor and subsequent purchaser, hut between the. donor and the subsequent creditor. The defendant holds not as a purchaser from Smith, bat as one of the creditors of Sinith, or under a sale by one of the creditors of Smith.

Earncmdis, for the motion.

Williams, contra.

The Statute of 13 Elizabeth, does not make void all gifts, &c. which are voluntary, but only such as are fraudulent ; and it has never been denied, that where gifts, &c. are fair, (though voluntary,) they ought to be supported. Lord Mansfield, (Cowp. 436-,J decided that a settlement was not fraudulent, because there were creditors at the time it vras made, if the transaction was a fair one. And in Cowp. 710-11, he ruled that if the circumstances of the transaction shew that it was not fraudulent at the time, it is not within the statute, though no money was paid,

In this case, it was left to the jury to decide from the circumstances of the case, whether the gift was fraudulent or not. They have decided it was not fraudulent, with which decision I am perfectly satisfied.

The motion, therefore, must be dismissed.

Justices Johnson, Nott and Richardson, concurred,  