
    Lawrence v. Swann and Others.
    January 25th, 1817.
    i. Executions — Levy - Property Passed by Fraudulent Deed. — Quaere. Whether an Execution can legally be levied on property, the possession of which has passed from the debtor, and remained in a. third person, for more than five years, in pursuance of a Deed said to be fraudulent, but regularly recorded, and importing on its face to be"for valuable consideration; betore such Deed has been impeached and convicted ol fraud by the Decree of a Court of competent jurisdiction?
    
      2. Evidence — Depositions to Perpetuate Testimony.*— Depositions taken in a suit to perpetuate testimony are not to be read as evidence in a subsequent suit, unless it appear that tie witnesses are dead, or otherwise out of the power of the Court.
    The Appellees filed a Bill of Injunction, in the late High Court of Chancery, against the Appellant and William O. Winston, to prevent the sale of certain slaves, on whom an execution, in favour of the said Winston against John Syme, had been levied by the Appellant, as Deputy Sheriff of Hanover County. The ground of equity relied on was, that the plaintiff were entitled to those slaves, and had held them in possession more than five years, by virtue of Deeds from Syme, duly recorded. The defendants controverted their title, alleging that the deeds in quesr tion were fraudulent. Many depositions were taken on both sides, and sundry exhibits filed. Chancellor Wythe perpetuated the Injunction ; from which Decree this appeal was taken.
    The case was argued here, at great length, on the 7th, 8h, 9th, 10th and 12th days of February, 1816; but, as the points in dispute were not determined by the Court, the arguments of counsel may with propriety be omitted.
    
      
      See monographic note on “Executions” appended to Paine, Surv., etc., v. Tutwiler, 27 Graft. 440.
    
    
      
      See generally, monographic note on “Depositions” appended to Field v. Brown, 24 Gratt. 74.
    
   January, 25th, 1817. JUDGE BROOKE pronounced the Court’s opinion.

“The Court, (not intending to decide that an Execution ought not to be served on property, the possession of which has passed from the debtor, and remained in a third person, for more than five years, in pursuance of a Deed, regularly recorded, and importing on its face to be for a valuable consideration, before such Deed has been impeached and convicted of fraud by the Decree of a Court of competent jurisdiction,) is constrained under the circumstances of the case before it, to withhold its opinion, and also its present impressions, on the merits; as well because Martha Hoops Syme, and the administrator de bonis non of Willis Riddick, whose interests are involved, are not parties to the suit, as because the whole of the case is not fully before the Court. Only one of the deeds to Warden is to be found in the Record of the suit of Syme v. Syme, referred to in the Answer, of Sarah Syme in this suit; and the object of that controversy being to perpetuate testimony, and it not appearing, in this case, that the witnesses, therein examined, were dead, or otherwise out of the power of the Court of Chancery, the question, whether their depositions" (in that event) ought to be read, is not regularly presented to the Court. But for these difficulties, the Court, (though strongly inclir)ed to the opinion that it would have been more regular to have impeached the deeds in this case by a suit for that object, than to have levied an execution on the property claimed under them,) might have yielded to the desire of the parties, to put an end to a complicated and expensive suit. The Court, therefore, on these grounds, and because the delay will be not much increased by the institution of a suit, such as before mentioned, in which the party, if so advised, may contest the validity of the title of the Ap-pellees, (as. it regards creditors, or others, who may be made defendants to such suit,) not only to the slaves now in question, but to any other property, which may have belonged to John Syme the debtor, and which may be claimed by such defendants, so as to put an end to all farther controversy, affirms the Decree of the Chancellor, but without prejudice to any such suit as before mentioned.”  