BRANCH OF THE BANK OF THE STATE OF ALABAMA AT HUNTSVILLE v. MARSHALL et als., 4 Ala. 60

COLLIER, C. J. The bill alledges a fraud on the part of the defendant, Marshall, in causing the note given by Jordan upon the purchase of the negro, to be made payable to Neale, ,who was the brother-in-law of Marshall, and to whom the latter was not indebted. And the first question we propose to consider is, whether the answer of Marshall, so far as it negatives a fraud, and his answer and Neal’s, affirming an indebtedness by the former to the latter, is to be received as evidence until overbalanced by other testimony.

It is stated in genei’al terms, in many adjudged cases, that where a general replication is filed and the parties proceed to a hearing, all the allegations of the answer, which are responsive to the bill, shall be taken for true, unless they are disproved by two witnesses, or by one witness with pregnant circumstances [Fenno et al v. Sayre & Converse, 3 Ala. Rep. 478, and cases there cited.] And if a bill charges a fraud, a responsive answer,, denying the fraud, if uncontradicted, is conclusive evidence for the defendant. [Murray v. Blatchford, 1 Wend. Rep. 583 ; Cunningham v.

Freeborn, 3 Paige’s Rep. 557.] But as a general rule, the defendant must make out by proof what he insists upon by way of avoidance of the statements or charges of the bill. [Woodcock v. Bennett, 1 Cow. Rep. 743-4 and note; Lucas v. The Bank of Darien, 2 Stew. Rep. 280; Hogthorp v. Gill’s admr’s, 1 Gill, and J. Rep. 272 ; Paynes v. Coles, 1 Muuf. Rep. 373.] An affirmation in the answer need not however be proved, if it be responsive to the stating or charging part of the bill, or an interrogatory authorized by either of them; [Fenno et al v.

Sayre & Converse, 3 Ala Rep. 478,] for in such case the complainant has, by the frame of his bill, engaged to prove the negative. He has voluntarily assumed the onus, and cannot complain of the difficulty of the task he has undertaken. The complainant, in the formation of his bill, may at his election make as much or as little use of the defendant as he pleases, except that, according to the established course of Chancery, he must receive a direct denial of his allegations by the defendant as evidence, as well as pleading.

Responsive affirmations by the defendant, are most usually invited by the charging part of the bill, which is a negation of what are supposed to be the defendant’s pretences, or by the extended scope of the interrogatories. Neither of these it is said are essential parts of the bill, but are usually inserted, if with any definite object, to obtain a more particular disclosure from the defendants.

If the bill contains the stating part, with a prayer that the defendant may answer, omitting all charges and interrogations, the complainant will not be compelled to receive the defendant’s oath beyond a mere denial of the equity of his bill. [See 2 Mad. Ch. Prac. 137; Partridge v. Haycroft, 1 Ves. 574; Wakeman v.

Grover, 4 Paige’s Rep. 23.] In the case before us, the bill, in stating the complaint, directly avers a fraud on the part of Marshall, in taking the note of Jordan payable to Neale; and charges that no consideration moved from Neale to Marshall therefor, but the sole inducement of the latter in thus taking the note was to defraud his creditors. According to the principles we have laid down, the answer of Marshall in denying a fraud is evidence against the plaintiff, for it is a direct negative of the equity of the bill.

In respect to the affirmation of Marshall and Neale, that the former was indebted to the latter in a sum equal to the amount of the note, it may be remarked-that the bill not only alledges a positive fraud, hut also charges that there was no indebtedness. Now if the bill had merely stated the fraud, the affirmative matter contained in the answer would have been regarded as pleading, the burthen of proving which would have rested upon the defendants. But such is not the case. The plaintiff charges the non-existence of a fact, and that charge can only be answered by an affirmation of its existence.

Such in effect are the answers of Marshall and Neale, so far as they set forth the inducement to make Jordan’s note payable to the latter, and according to the view which we have taken of the law, in this respect they are evidence. The question now is, does the proofs taken by the plaintiff overbalance the weight which is due to the answers.

The substance of all the testimony is about this: some eight years before the present suit was commenced, the defendant, Neale, was in moderate circumstances; Marshall, in April, 1S37, handed a brother of Neale, residing in Jordan’s neighborhood, the note of the latter to collect, with the remark that his brother had sent it to him for that purpose.

Marshall became'insolvent a short-time previous to his removal from this State; and in March, 1837, promised a man living in Tennessee that he would pay him six hundred dollars, as soon as he collected a note which he held on Samuel Jordan for twenty-one hundred dollars. The mere recital of this proof is sufficient to show, that it does not outweigh the positive asseverations of the answers. The declaration of Marshall, when called on by a creditor, that he would pay him from the proceeds of Jordan’s note is inadmissible.

Prima facie he had no interest in it, and any statement made by him in regard to it, could have no more influence than-.the declaration of any third person* There was nothing utiusfial in one brother sending to another a note to collect for him; especially when the latter resided in the immediate vicinity of the debtor. Nor can a debtor in failing circumstances be restrained in the preference of creditors where he does not interfere with pre-existing liens.

But if the evidence was more direct and potent than it is, it might still be objected that the witnesses did not corroborate each other, but each bore testimony to distinct facts. No question of law arises on the amended and supplemental bill for our consideration. And as it is unnecessary, we will not inquire whether the plaintiff prematurely resorted to equity. It results from what we have said, that the decree of the Court of Chancery must be affirmed.