Hogg et al. vs. Mobley and another. Clerk of said Court of Ordinary for such further costs as may accrue, by reason of such appeal. This Act does not require any bond shall be given to the Clerk-it prescribes no form for entering the appeal, but only requires security to be given to the Clerk, for such further costs as may accrue by reason of the appeal. Prince, 238. From the record in this case, it appears that the caveators were dissatisfied with the decision of the Court of Ordinary, and applied to the Clerk thereof to enter an appeal, and tendered William C. Freeman as their security. The Clerk accepted the security tendered to him, and required the caveators and their securi- ty, to acknowledge themselves bound to the propounders of the will, for the payment of all costs that should accrue on the appeal, in terms of the Statute. All the Act of 1805 requires of the Clerk is, to take the security offered by the appellant-it is silent as to any particular form in which such security shall be bound; but we think the form adopted by the Clerk in this case, is a very common and appropriate one, to bind the security. If the appellees prevail, they will be entitled to enter up judgment for their costs against the appellants and their security, according to the second section of the Act of 1826. Prince, 461. By the Act of 1823, appeals from the Court of Ordinary are to be tried in the same way, and under the same regulations, as other appeals. Prince, 455. The counsel for the defendant in error seems to suppose the Statute requires a bond, to be made payable to the Clerk, and cites the case of Anthony vs. Brooks, 5 Georgia Rep. 578. The Act of 1805, as we have seen, requires no bond, but that security shall be given to the Clerk. In Anthony vs. Brooks, this Court held, that a claim bond should be made payable to the Sheriff, for the reason that the Act of 1821 declares that the claimant shall give bond to the Sheriff, conditioned to pay the plaintiff all damages, &c.; besides, the Sheriff is to take the bond in a sum equal to double the amount of the property levied on, at a reasonable valuation, to be judged of by the levying officer. Prince, 448. In our judgment, the appellants in this case gave security to the Clerk, within the true intent and meaning of the Act of 1805, and that they and their security are bound in law for all costs which may accrue, by reason of such appeal. Let the judgment of the Court below be reversed. VOL. VIN 33 Colquitt vs. Thomas et al. No. 45.—WALTER T. COLQUITT, plaintiff in error, vs. Nicholas S. THOMAS et al. defendants. [1.] A sells lands to B, and gets judgment on the notes given for the purchase money, and levies on the lands in the possession of C, a purchaser from B ; C puts in his claim; Held, that upon the trial of the claim, it is not competent for A to set up, by proof, his lien as vendor, but that he must go into Equity to establish his lien, and there get a decree that the land be sold to satisfy it. [2] The Circuit Judge, in opening his charge to the Jury, said, "that he wished counsel to take notice of his charge, for he supposed the case would be taken up, and if he erred, he could be corrected; and if the Jury found contrary to evidence, they could be corrected:" Held, that the remark, relative to the Jury, was improper, as tending to relieve them from the exclusive responsibility of trying the facts of the cause. [3.] Fraud cannot be presumed at Law, but it may be proven, from circum stances. [4.] To hear reports about an incumbrance upon land, which the purchaser is about to buy, does not amount to notice, nor is report or rumor a badge of fraud. [5.] The presiding Judge is requested, by counsel, in the hearing of the Jury, to give in charge a legal proposition, to which request, he replies, "well, I charge it," without anything more. This, held to be error. [6.] Upon the trial of a claim, it is not competent for the claimant to prove the bona fides of his purchase, by proving the conversation that passed between himself and his vendor, in relation to what he gave for the land, at a time subsequent to the purchase. [7.] The pendency of suits against a debtor, at the time that a purchaser buys lands of him, is a badge of fraud and a fact which the Jury are at liberty to consider, in determining whether the purchaser bought with notice or not, under the Statute 13 Elizabeth. [8.] To subject land to a judgment, sold by the defendant, before the judgment, to A, and by A sold to B, it is necessary that the plaintiff prove that the defendant sold fraudulently, and that both A and B had notice of the fraud, under the Statute 13 Elizabeth. [9.] One who buys from a fraudulent grantee, without notice of the fraud, and one who buys from an innocent grantee, with notice of the fraud, will be protected under the proviso in the Statute 13 Elizabeth. [10.] If one buys lands of a debtor, and pays a part of the purchase money before getting a deed, and before paying the balance of the purchase money and before getting a deed, learns that the purchase money is unpaid by the debtor that he is insolvent, and that suits are pending against him: these facts may be submitted to the Jury as evidence that he purchased with notice of the fraud, under Statute 13 Elizabeth. Colquitt vs. Thomas et al. [11.] The sayings of an agent, after his actings as agent, are not competent to prove his agency. Claim, in Campbell County. Issue joined, October, 1847. Verdict, "not subject," and decisions complained of-by Judge HILL, at October Term, 1849. This was a claim case. Walter T. Colquitt had sold certain lands to Nicholas S. Thomas, taking in part pay certain notes, which he sued to judgment, and levied the fi. fa, issued therefrom for $5,999 99 upon said lands, or a portion thereof the defendant, Thomas, admitting in his plea that the notes were for the lands afterwards levied on. On the claim trial, plaintiff in fi. fa. showed the grant to one Hiram Howard, then a deed from Howard to said N. S. Thomas and John P. Timberlake, (showed no title passing through himself,) and read other fi. fas. and judg ments, at suit of other plaintiffs vs. said Thomas. It appeared that said Thomas had sold said lands to A. H. Harrison and C. Williams, who subsequently sold to Nathaniel Harrison, who was the claimant on said trial. After the above testimony by plaintiff in fi. fa. claimant offered the said deed from Thomas, dated 30th March, 1844, then the deed from A. H. Harrison and Williams to claimant, dated 27th May, 1845. Colquitt's declaration vs. Thomas was returnable to April Term, 1844, and service acknowledged by Thomas, 6th January, 1844, and judgment in October, 1845. Plaintiff introduced various other testimony, and so did the claimant, which so far as material, and as elucidating the issues, will appear in what follows: When claimant offered the testimony of a witness, as to what "he understood from the claimant, Abel Harrison and Clayton Williams," plaintiff below objected. The Court overruled it, and let in the testimony. After the testimony closed, the Court charged the Jury, among other things, that he "wished counsel to take notice of his charge, as he supposed the case would be taken up, and if he erred, he could be corrected, and if the Jury found contrary to evidence, they could be corrected"-that "the pendency of the suits did not operate as notice, either positive or constructive, for the notes did not express the consideration for which they were given, and though the plea set forth that fact, the plea was not verified, and Colquitt vs. Thomas et al. if taken as evidence at all, would have to be taken together, and it set forth a partial failure of consideration." Further charged, "if the purchaser bought, bona fide, and had paid the purchase money, or any considerable part thereof, before he received notice of the incumbrance, he could go on after notice and pay the residue, and his title would be protected in this case, but that, perhaps, it would not in Equity-the plaintiff not now relying on his lien for the purchase money." Further, "that to hear reports about an incumbrance, did not amount to sufficient notice in Law;" and, by request of claimant, "the burden of proof was on plaintiff to show fraud, and that fraud was never to be presumed, though it might be proven by circumstances." The plaintiff's counsel then, verbally, it seems, asked the Court to charge the Jury as to a certain legal position, to which request, the Judge replied, "well, I charge it." The plaintiff's counsel then, in writing, requested the Court to charge, that "if they believed the deed to Harrison & Williams to defendant in fi. fa. was fraudulent, as to creditors, and that the claimant knew of the indebtedness of defendant in fi. fa. for the purchase money, or his insolvency, and the pendency of the suits, before he paid the purchase money and received title, that such title did not defeat the incumbrance, and was fraudulent." This the Court refused, and repeated the above charge, as to where notice was received after the trade and before payment, &c. as being the law in this case. Claimant then asked him to charge "that the sayings of C. Williams were not evidence to establish his agency." This the Court charged, adding that "testimony could be legally received for one purpose, and when so admitted, could not be made evidence for a different purpose; and that in this case, Williams' sayings, made after his agency, were not evidence to prove his agency." To the manner of said last charge, and to the refusal to charge, as herein set forth, the plaintiff in fi. fa. excepted. The Jury found the property "not subject." 1st. To the testimony of the witness, as to what he "understood from claimant and A. Harrison & Williams," and "in admitting parol evidence, (a part of said sayings,) to prove a contract for land." 2d. That the Court erred in saying to claimant's counsel, in the hearing of the Jury, that he "was by no means certain that Colquitt vs. Thomas et al. he was correct in rejecting the testimony of L. B. Watts, and as it did not amount to much, they had, perhaps, better suffer it to go before the Jury." 3d. As to that part of the charge already recited, as to the case being carried up, if he or the Jury erred, &c. 4th. That he erred in saying what he did-already recited-as to pendency of suits being notice, &c. 5th. That he erred in charging what he did-already recitedas to the right of the purchaser to go on and pay and take title after notice, &c. 6th. Also erred in refusing to charge what-is already recited -he was asked to do, as to claimant having notice of any fraud in the sale from Thomas to claimant's grantors, &c. 7th. That he erred in his charge, as to "reports as to an incumbrance," as recited-unless he had explained what he meant by reports, and that this charge was not applicable to the case. 8th. That he erred in saying-as recited-the burden of proof of fraud was on plaintiff, and was never to be presumed, &c. 9th. That he erred in not pronouncing (repeating?) the specific thing which he was requested by plaintiff to charge, instead of saying "well, I charge it." 10th. That he erred in saying that the sayings of Clayton Wil. liams were not admissible in this case, to prove his agency. S. T. BAILEY and C. B. COLE, for plaintiff in error, cited the following authorities: Roberts on Fraud, 2, 3, 5, 122, 231, 422, 520, 1, and note, 595, 600, 1, 2, 7. Lowry vs. Pinson, 2 Bailey's R. 328. 18 John. R. -427. 1 Conn. R. 295. Mitf. Pl. 275. 2 Danl. Pr. 777. Story's Eq. Pl. $806. Sugden on Vendors, 760. 2 Fonbl. 414, n. 2 Mad. Ch. 322. 3 P. Williams, 307. 4 Kent, 180. 1 Atk. 384. 3 Leigh, 365. 1 Story's Eq. Jur, §395. 1 Munf. 38. 2 lb. 38, 129. 2 Hen. & Munf. 316. 2 Atk. 630. 2 J. C. R. 158. Harden's Rep. 37. 6 B. Monr. 67. 312. 1 Watts & Sergt. 142. ell on Mort. 548, 547, note r. Cas. 291. 1 Cond. Ch. R. 550. 5 Price, 306. 1 Bur. 149. 229. 5. Ib. 1 Hare, 43. 7 Ib. 3 Day, 503. Co. Litt. 344. Pow 3 Atky. 392. 13 Ves. 120. 1 Oh. John. C. R. 301. 10 John. 462. 16 Ves. 419. .1 Cross on L. 79. 2 3 Har. & John. 426. 4 John. |