#### JOHN SATTERWHITE vs. JOSEPH M. HICKS.

The declarations of a person under whom a party derives title, made before, or simultaneously with, the sale, are admissible in evidence by the other party, to show fraud in the sale.

Though, ordinarily, he who alleges fraud must prove it, the rule does not extend to a case where, upon a question of consideration in the sale of a slave, the vendor, vendee and subscribing witness thereto were brothers-in-law, and the vendor at the time was sued for debt, and insolvent.

Whenever, in the trial of a cause a point arises, which it is important to either party to sustain, and there is no evidence offered upon it, it is not only no error in the Judge so to inform the jury, but it is his duty.

Where, therefore, upon a question of fraud, the plaintiff put in evidence certain bonds having no subscribing witness, to show the consideration for the bill of sale under which he claimed, and it did not appear that the bonds were ever seen by any one before the trial: — Held that it was no violation of the Act of Assembly, (ch. 31, sec. 136,) by the Judge below, to charge the jury that “the existence of said bonds was unknown to any one, except the parties, until they were produced upon the trial.”

(The cases of Johnson v. PaU&soti, 2 Hawks 183; Guy v. Hall, 3 Mur. 150; May v. Gentry, 4 Dev. & Bat. 117; Hawkins v. Alston> 4 Ire Eq. 137, and Black v. Wright, 9 Ire. 447, cited and approved.)

This ivas an action of detinue for two slaves, tried before his Honor, Judge Dick, on the last Circuit at Granville.

Plea — the general issue.

Joseph Sattenvhite, the brother-in-law of the plaintiff, conveyed the slaves to him for the alleged price of $1200. This deed was attested by Thomas Sattenvhite, another brother-in-law. The plaintiff proved by the attesting witness, that he was sent for to the house of the plaintiff, where he found Joseph, who said that lie was smartly indebted to John, and was about to sell him the two negroes in dispute. After the deed was executed, it was pro*106posed by the plaintiff to Joseph to have a settlement, and the former went to his desk and took out a paper or papers, and asked the latter if he had that little paper he gave him some time ago, tvho replied that he had not — it was at home; and John then proposed to go to Joseph’s house to make the settlement, and the witness Thomas was asked to go with them to witness the settlement, but did not go. The plaintiff then gave in evidence four several bonds, executed by Joseph to him at different times, for sums amounting in the whole to $1578.

At the time of the execution of the bill of sale, Joseph was largely indebted beyond his means to pay, and a writ had issued against him for the collection of one of his debts, which was prosecuted to judgment; upon which an execution was levied on the negroes in question, and at the sheriff’s sale, the defendant bought them and took them into possession. On the part of the defendant, it was alleged that the bill of sale was intended to defraud the creditors of Joseph. That if Joseph owed the plaintiff any thing, it was a very small sum, and the bonds offered in evidence were without consideration. The defendant offered_to prove that Joseph, before the execution of the bill of sale, had said he was not embarrassed, and did not owe, of his own debts, more than $250: This evidence was objected to by the plaintiff, but admitted by his Honor. Evidence was also given by the plaintiff, tending to prove that the bonds were given for debts bonay?tfe,due; and by the defendants, to show that they were given for fictitious demands. His Honor, the presiding Judge, was asked by the plaintiff’s counsel to charge the jury, that the proof of the execution of the bill of sale, and that the parties thereto said it was made in consideration of Joseph’s indebtedness to the plaintiff, and the further proof of the execution of the bonds, did, if the jury believed the evidence, make out a prima facie case for the plaintiff, and put the burden on the defendant to show the transaction to be fraudulent. This instruction his Honor refused, and charged the jury that as the parties to the bill of sale were brothers-in-law, and the bonds without a subscribing witness, and their existence unknown to any one except the parties, until they were produced on the first trial of this cause, something more than the *107mere production and proof of the bonds was necessary to constitute a prima fade good consideration, as against a purchaser at execution sale. , His Honor further charged the jury, that if they were satisfied from all the testimony, that the sale from Joseph Satterwhite to the plaintiff was a bona fide transaction, they should find for the plaintiff — otheiwise, for the defendant. There was a verdict for the defendant, and a rule for a new trial, for the admission of improper testimony and for misdirection; and the rule being discharged, and judgment rendered on the verdict, the plaintiff appealed.

Miller, for the plaintiff.

Lanier, J. H. Bryan and Gilliam, for the defendant.

Nah, C. J.

The first objection raised in the plaintiff’s bill of exceptions is to the reception of the ante-declarations of Joseph Sattenvhite. His Honor committed no error in this particular. It is a general principle in the law of evidence, that any fact to be proved against a party ought to be proved in his presence, by the testimony of witnesses duly sworn or qualified to tell the truth. Hearsay, therefore, is not admitted in our Courts of Justice, because it is but a statement which a witness gives, of what he professes to have heard a third person say. This rule is as old as the common law. To it, however, there are exceptions coeval with it:- such, for instance, of dying declarations, pedigree, and others, stated by writers on the law of evidence. Among the more modern exceptions, is that class of hearsay admissible upon the sole ground that it proceeds from the persons owning the property at the time, and would be evidence against him if he were a party to the suit. His estate or interest in the property, coming to another by any kind of transfer, the successor is said to claim under the former owner, and whatever he may have said concerning his own rights while owner, is evidence against his successor. Phil. Ev. vol. 1, note — 1st part, p. 644. This rule applies equally to real and personal property, whether in possession or in action. Thus, the admissions or declarations of a vendor or holder of personal property, made while so holding it, is evidence of all claiming under him, either mediately or immediately. In *108detinue for slaves, the declarations of the defendant’s vendor, made before the sale, was held admissible. Walthall v. Johnson, 2 Call. 275. In Johnson v. Patterson, 2 Hawks 183, declarations of a vendor before the sale were admitted. In Guy & Hall 2 Murphy 150, the principal is very elaborately discussed. “ In this case;” the Judge remarles “ they offered (that is, the decía, rations) as coming from & privy in estate, and therefore, in law, as coming from the party himself.” This rule extends to choses in action. The admissions or declarations of the assignor of a chose in action, made while he is the holder, are evidence against the assignee, and all persons claiming under him. In Haddan & Mills, 4 Car. & P. 480, it appeared that one Rigby had endorsed the bill to Mills when overdue, and it was proposed to give in evidence Rigby’s declarations while the owner, to show the want of consideration. On the part of defendant, it was objected to. Chief Justice TiN.dall admitted it, observing, u You derive title under this party, and what he said is evidence against you.” To the same effect is the opinion of the Court in May v. Gentry, 4 Dev. & Bat. 117. They declare that if the declarations could be received against the persons making them, they are competent against the person who claimed under him by a cotemperaneous or subsequent conveyance. Here the evidence, slight to be sure, but still evidence, was offered to show that Joseph Satterwhite was not indebted to the plaintiff; or, if so, in but a small amount; and the bonds given in evidence were without consideration and fraudulent against the creditors. The declarations were properly received.

The second exception is the refusal of the Judge to charge, as required by the plantiff. It is true that in ordinary cases, he who idleges fraud must prove it. The burthen does lie upon him, but it does not extend to such a case as this — where, by the statement, as made by the plaintiff, fraud attaches to the transaction. Both Joseph and John Satterwhite and the subscribing witness were brothers-in-law; Joseph was indebted beyond his power to pay; a writ had issued against him to recover a debt due from him. Under those circumstances, he sells, or pretends to sell, to the plaintiff the slaves in dispute, and in order to sustain the sale, alleges he was smartly indebted to him, and produces four several *109bonds bearing different dates, one in 1843, one in 1845, one in 1847 and one in 1848, amounting in the whole to upwards of $1400. The bonds are not attested by any witness. In the case of Hawkins v. Alston, 4 Ire. Eq. 137, the Chief Justice, in delivering the opinion of the Court observes, “ It is but an act of common precaution, which any man owes to his own character, when a bond is executed between brothers for so large a sum, under such circumstances, and upon a settlement, as alleged for previous dealings, running through several years, that the parties should come to their settlement in the presence of disinterested third persons, &c., so as to afford to other creditors the opportunity of investigating, <fcc.” In another part of the same case, the Court say that in such a transaction between near relations, “it is to be expected that they should offer something more than the naked bond of the one to the other, as evidence of the alleged indebtedness.” See also Black v. Wright, 9 Ire. 449, 3 Star, on Ev. 487. His Honor, therefore, committed no error in refusing to charge'as required. .It was the plaintiff’s duty to remove the cloud under which his case rested.

The remaining exception is that, in his charge, his Honor intimated to the jury an opinion upon a matter of fact. We are informed that this objection is founded on that part of the charge, in which the Judge uses this language: “ and the bonds without a subscribing witness, and their existence unknown to any one (but the parties) until they were produced on the first trial of this cause. ’ ’ It is objected, that the Judge violated the Act of Assembly, in stating that the existence of the bonds was unknown, until produced on the trial. It is manifest that his Honor spoke of the case as it appeared before him. Now there was no evidence that the bonds were ever seen, until produced in evidence on the trial of the cause. The expressions used, then, were tantamount to telling the jury that there was no evidence of the fact of their ever having been seen, mrtil the trial. Whenever a point arises on the trial of a cause, which it is important to either party to sustain, and there is no evidence offered upon it, it is not only no error in the Judge so to inform the jury3 but it is his duty. Situated as the case was, it was very important to the plaintiff to prove that there was a settlement, and that these bonds had an existence before it took place. *110No settlement was proved — The fact that after the deed was executed, the plaintiff went to his desk and took out some paper or papers, was no evidence that the bonds were the papers. If they were, why were they not exhibited? The fraud attempted is too palpable, and not reconcilable with any pretence of fairness.'

We concur with his Honor on all the points ruled by him.

Per Curiam. Judgment affirmed.