Colquitt vs. Thomas et al. quest of counsel, and, we are obliged to believe, made to the counsel. It is not sufficient to reply, that both the request and the response were made in the hearing of the Jury. This reply assumes that the Jury could, and did as well understand the legal rule thus heard, as if they had received it in the form of a clear and solemn presentation, directly from the Court to them. This assumption is wholly without foundation. The presumption is, that they imperfectly heard, and did not, because, in the very nature of the case, they could not, understand it. It is not always the case, that an able Judge even can understand the full effect of a legal proposition, when first presented. He sometimes requires a re-statement-perhaps an argument. It is unreasonable to suppose that an untrained Juryman, in the midst of the stir and excitement of the court-room, can understand and practically appreciate a rule of law, as read or recited to the Court, by the counsel from his desk. His attention, it may be presumed, was not fixed upon it, for the reason, that he expected to be instructed upon it by the Court, in solemn form. If the Jury did not understand the rule of law which was thus imperfectly charged, it could not, of course, become to them a rule of action in their application of the evidence; and the case stood as though there had been no attempt whatever to charge it. If so, the second interrogatory is answered. The plaintiff had not the benefit of the rule of law which he believed, and which the Court held, was applicable to his case; and for that reason, we hold that the manner in which this charge was given, is error. Hall vs. Hall, 6 Gill. & Johns. 386. Selin vs. Snyder, 11 S. & R. 319. 3 Cranch, 298. 3 Blackf: 433. Powers vs. McFerron, 2 S. & R. 44. Smith vs. Thompson, Ib. 49. Hamilton vs. Menor, Ib. 70. Livingston et al. vs. Maryland Ins. Co. 7 Cranch, 506. [6.] The next exception is to the admissibility of the evidence of the witness Russel. He swears that he saw the claimant pay a large sum of money to A. H. Harrison, and that he understood from the claimant, Á. H. Harrison and Clayton Williams, that -the money was in payment for a parcel of land that claimant had bought from A. H. Harrison & Clayton Williams, known as the Pondtown Place, in the County of Campbell, and that the claimant gave to Harrison & Williams five thousand dollars for said land, as he understood from the claimant and Harrison & Wil " Colquitt vs. Thomas et al. liams. This witness was introduced by the claimant, to support his title, by showing the bona fides of the purchase. He bought from Harrison & Williams, who bought from Thomas, the defendant in execution. The testimony goes to show that he paid for the land, and how much he gave for it. The objection is to proof of the sayings of Harrison & Williams, and the claimant. The interview between the witness and these parties, was after the claimant had bought the land in question, from Harrison & Williams. It occurred in the summer of 1845, and the claimant bought in May, 1845. The sayings of these parties are not admissible as part of the res gesta, at the sale of the lands to the elaimant, because they were not contemporaneous with the transaction. The sayings of the claimant are not admissible, in support of his title, unless they are part of the res gestæ. Here they are not. Nor are the sayings of his vendors, in support of his title, uttered after they had sold and parted with all their interest in the land, admissible. What the witness understood, therefore, at that time, from these parties, is, in our judgment, incompetent testimony, and ought to have been rejected. So far as the testimony goes to prove facts-the payment of the money, for example-it is competent. As to the testimony of L. B. Watts, we think the Court was right in rejecting it. It was afterwards read by consent, at the suggestion of the Court-he expressing doubt as to the correctness of his decision, and saying, at the same time, in the hearing of the Jury, that it did not amount to much. This remark is made the ground of an assignment. Without laying too much stress upon every casual remark that may fall from the Court, in communicating with counsel in the progress of a cause, we are of opinion, that whilst this remark, thus made, is not ground for error, it might as well have been omitted. As before stated, Judge Colquitt having reduced his claim against his vendee, Thomas, for the purchase money of the Pondtown lands, to judgment, was seeking to subject them. Thomas, pending the suit against him, had sold the lands to a company, known in this record as Harrison & Williams, who sold, pending that suit, to the claimant, Nathaniel Harrison. Colquitt's judgment being younger than the deed to the claimant, and, also, than the deed to the claimant's vendors, Harrison & Williams, his effort was to show, that the original sale from the defendant in exeVOL. VIH 35 Colquitt vs. Thomas et al. cution, to Harrison & Williams, was void; because made to hinder, delay and defraud him, as a créditor, under the Statute 13 Elizabeth, and that the purchasers from Thomas had notice of the fraudulent intention-whilst the claimant, on his part, sought the protection of the exception in that Statute, in favor of bona fide purchasers, for value, without notice. His effort, therefore, was to prove the bona fides of his purchase, and that he had no notice of the fraud. Such was the principal grounds of contest in this cause, and a large volume of testimony was introduced, directed to these points. The Court gave to the Jury several instructions relative to the question of notice, which are excepted to. In reviewing the instructions of the Court upon this head, in justice to the Court, I remark, that an effort seems to have been made by the counsel for the plaintiff, to secure to him the benefit of the rule, as applicable to a contest between the vendor, seeking to set up his lien, and a purchaser from his vendee whilst it is very obvious, that the purpose of the Court was to exclude that rule from the case, and to hold the parties to the rule of notice, under the Statute of 13 Elizabeth. Examining into these instructions with diligence, we are satisfied, that in more than one instance, the charge of the Court is susceptible of such a construction, as denies to the plaintiff the benefit of certain testimony which, under the law, he was entitled to. Whether, in fact, the Jury did allow the full effect of this testimony, is what we cannot determine; but as their verdict is against the plaintiff, we have a right to presume that they did not. I do not mean to say that, in my opinion, the plaintiff ought to have recovered-I express no opinion about that-I only mean to say, that inasmuch as the instructions of the Court are susceptible of a meaning adverse to the rights of the plaintiff, and inasmuch as the Jury found against him, it is a fair inference that they understood them in that adverse meaning. [7.] The plaintiff was bound to prove in this case→→→ 1. That the sale, by Thomas, was fraudulent; that is, that it was made to hinder and defeat his debt. He was bound to prove a fraud, in fact. To prove this, he was entitled to give in evidence certain facts-as the pendency of his suit at the time of the conveyance-possession retained by Thomas, and other facts of like character, which the law recognizes as marks or badges of Colquitt vs. Thomas et al. fraud. See 2 Kelly, 1. From these facts, the Jury are left to ascertain the bona fides, or the mala fides of the sale. [8.] 2. He was bound to prove that Harrison & Williams and the claimant, both had notice of the fraudulent intention of Thomas, in his sale to Harrison & Williams. [9.] I say both, because the rule is, that one who buys from a fraudulent grantee, bona fide, and without notice, will be protected. So, also, if one buys from an innocent grantee, with notice, he will equally be protected; that is to say, if the claimant bought from Harrison & Williams, without notice of the fraud, his title will be good against Colquitt's judgment, although they bought from Thomas, with notice. So, also, if the claimant bought with notice, and they bought without notice, his title will be good-so that both the claimant and his vendors must be charged with notice. This is the rule, both under the 27 and 13 Elizabeth. The rule has been held different in New York, and, also, in Cone necticut and North Carolina, under the 13 Elizabeth. In Roberts vs. Anderson, Chancellor Kent held, approving the decision of the Supreme Court of Connecticut, in Preston vs. Crofut, (1 Conn. R. 527, note,) that inasmuch as the Stat. 13 Eliz. made a conveyance to defeat creditors utterly void, a purchaser from the debtor, buying with notice, acquired no title, and could convey none, even to a purchaser without notice. It seems to have been so held, also, in North Carolina. See Hoke vs. Henderson, 3 Dev. 12 to 16. In New York the Chancellor has been overruled, and unless in Connecticut and North Carolina, no distinction now obtains between the Stat. 27 and the Stat. 13 Elizabeth. The rule, under both Statutes, by the preponderance of authority, is as I first above stated it to be. 3 Johns. Ch. R. 372.3 Dev. 12 to 16. 1 Conn. 527, note. 18 Johns. R. 515. 252. 1 Sumner, 507. 2 Pick. 184. 332. 8 Idem, 411. 8 Watts, 489. 391. 2 N. Hamp. 402. 7 Dana, 506. to Hopkirk vs. Randolph, 2 Brock. 152, '3. 3 Kelly, 448.: 3 9 Paige, 132. 2 Mason, 12 Idem, 307. 12 Idem, 307. 3 Metclf. Penn. 160, 18 Maine, 5 Missouri, 296. Note To prove the fraudulent intent of Thomas, the pendency of the suits against him is a competent badge, and in this case ought to have been submitted, with its full effect as such, to the Jury. The fraud, on the part of Thomas, was a preliminary fact, to be established-notice to the claimant and his vendors, of the fraud, could not be established, unless the fraud itself was proven. The pen Colquitt vs. Thomas et al. dency of the suits, was, also, a fact to be left to the Jury, to show notice to them-it was an indicium, from which notice might be inferred for they bought whilst the suits were pending. Of itself, it is not notice; and I apprehend that the pendency of the suit, in favor of the plaintiff, was legitimate evidence, to the extent stated, to show notice whether the record of the case pending, showed the consideration for which the notes sued on were given or not. The consideration really has nothing to do with the matter. The facts to be arrived at in this case were, was the plaintiff a creditor of Thomas-uo matter upon what consideration was the conveyance by Thomas made to defeat him as a creditor, and had the claimant and his vendors notice of a fraud against the plaintiff, as a creditor? In an attempt to enforce the vendor's lien, it would not, of course, be enough for a vendor to exhibit the notes of the vendee. He would be held to go farther, and prove the sale of the land, and if the notes became material testimony at all, I apprehend they would avail nothing, unless proven to be given for the land; but in this case, let it be remembered, that we have nothing to do with the vendor's lien. Now, what did the Court charge as to the pendency of the suits? He charged, "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 although the plea did set forth that fact, yet the plea was not verified, and, if taken at all, would have to be taken together, and it set forth a partial failure of consideration." In the view I have presented of the lis pendens, as a badge of fraud, and as evidence of notice to the purchasers, there was error in this charge. It is true, that the pendency of the suits was not notice, positive or constructive; that is, not such notice, in law, as would be conclusive upon the claimant. In that construction the Court was right; but it was competent evidence, as a fact or circumstance, from which the Jury might infer notice. It was the right of the plaintiff, that the Jury should be allowed to consider of it. Were they so instructed as to lead them to believe that they were at liberty to consider the pendency of the suits as evidence for any purpose? We think they were not. It being in reference to a vital point in the case, the charge ought to have been more explicit. We think the Jury may have, construed this charge, as withdrawing from their consideration, altogether, the fact that the suits were pend |