THE BANK OF THE STATE OF ALABAMA VS. JAMES M'DADE; THE SAME VS. CHARLES S. LUCAS; THE SAME VS. THOMAS J. FAISON, 4 Port. 252

COLLIER, J. — In these cases, a writ of fieri fas das was issued from the County Court of Tuskaloo-sa, to the sheriff' of Montgomery county, in favor of the plaintiff in error, against the goods and chattels, &c., of William D. Bynum and Alexander McDade, which was levied on some slaves in the possession of Alexander McDade; to which the defendants respectively interposed their several claims,- and tried the right in the Circuit Court of Montgomery, as our statute directs.

On the trial, the defendant McDade, gave in evidence, a deed, executed, the second day of May, eighteen hundred and thirty-three, by which Alex-der McDade, acknowledged that Jeremiah Cloud, William McDade, senior, James McDade, senior, and Thomas J. Faison, had become the sureties of the said Bynum and himself, for the payment of a large sum of money, and that Bynum and himself were indebted to Henry and Charles S. Lucas, in a large sum of money, expressing, particularly, the. extent of the suretyship of the said partios, as well as the debt owing to the Messrs. Lucas.

And thereby nominated,, constituted and a ¡/pointed Alexander Carter, and the said James McDade, senior, with full power to sell the negroes in question, together with others, and other personal property, in such “manner and form as seem to them best, for the interest and benefit” of the parties intended to be provided for. It was further proved, in the case against McDade, that a sale at auction was made in September, eighteen hundred and thirty-three, of the property designated in the deed, and remaining in the posse.ssion of Alexander McDade: it was levied on, in November following.

In each of the cases, we find a bill of exceptions, taken upon the trial. In the case against James McDade, it appears, that the plaintiff’s counsel objected to the competency of a witness, introduced by the defendant; that his objection was overruled, and the witness examined. To the charges and refusal to charge by the Court, theplaintiff’s counsel except, and to nothing more.

Had the plaintiff desired to take advantage on error, of the admission of the wit- ! e¡.«, he opinion of the Court should have been excepted to : the record showing nothing farther than that his competency being questioned, the objection was overruled by the Court. The plaintiff’s counsel must be understood to lidve acquiesced in the decision. There was no intimation given of an intention to except.

Had such intention been declared, the defendant might have discharged the witness, and thus have disembarrassed his defence; but there being no such annunciation made, it would be unjust to the defendant, to give to the plaintiff an advantage here, of that which was not saved below.

In this case, the Court was requested to charge the jury, “ that a mere liability to be damaged as a security, would not, as against creditors, be held in law, a sufficient consideration to sustain an absolute sale." Without giving a direct answer to this request, the Court charged the jury, that if the defendant had become-the surety of Bynum & McDade, before the deed was executed, and has, since his purchase of the slaves in question, discharged their lia-, bilities, for which he was a surety, and in doing so, has paid a fair equivalent for the slaves, his purchase is sustained by an adequate consideration : and further, if the negroes were left with Alexander McDade, to aid in gathering his crop, that a ■bona fide possession-was not, under such circumstances, fraudulent, per se.

The bill of exceptions discloses no evidence to shew the pertinency of the instruction asked of the Court. In fact, the idea that there was such proof, is negatived by the deed, constituting Carter & Mc-Dade trustees to sell property in relief of the sureties, and to pay debts. In regard to the first charge of the Court, it is clear that there is no error.

If the defendant was the surety of Bynum & McDade,at the time the deed was - executed, and has since discharged the liabilities he had guaranteed, to an amount equal to the price of the slaves purchased by him, the consideration for his purchase was certainly adequate.— i Without pretending to determine, whether, where ‘"there is an absolute sale of slaves, unaccompanied by possession, the transaction may be freed from the imputation of fraud, by shewing that they were left with the vendor, to enable him to gather a growing crop, we are of opinion, that the publicity of the sale, dispensed with the immediate delivery of possession, and operated as a notice to the world, of a change of property — Kidd vs Rawlinson If, however, the slaves were suffered to remain without a change of possession, to effect some sinister end, as to defraud third persons, by giving to their possessor a false credit, the publicity of the sale would avail nothing.

Or, if personal property is suffered to remain with the vendor, for an unreasonable length of time after a public sale, so as to warrant the inference that the transaction is merely colorable, the sale, though public, will not pass a title to the ven-dee, against the creditors of the vendor. Here the negroes were levied on within the same year, and but two months after the sale, and it was proved, that they remained with Alexander McDade to aid in gathering a crop, to the cultivation of which they had contributed.

Under these circumstances, the Court might, with propriety, have instructed the jury, that if the possession was bona fide, such possession did not, per se, avoid the sale. In tiie ease against Lucas, the same objection maybe made to the bill of exceptions, as in the case against McDade; though the Court, as we are in formed, overruled several objections to the introduction of testimony, yet, only the charges given and refused by the Court, are excepted to. The charges given and refused in this case, only so far as Amriant from those shown by the bill of exceptions in the case against McDade, will be noticed.

The Court charged the jury, that if the persons intended to be secured in the deed, had become sureties of Bynum & McDade, before the deed was made, and it was made in good faith, though the trustees afterwards sold the property under the deed, declaring the terms to be cash, and if the persons intended to be secured, purchased at such sale, and the trustees did not require them, because they were the sureties provided for by the deed, to give their notes or pay the cash, and if they have, since the pendency of this suit, paid money, or secured it, so as to discharge Bynum & McDade, and the price paid, or secured, for the slaves, was a fair equivalent — (he consideration was adequate to sustain the sale.

The Court further charged the jury, that if By-num & McDade were indebted to H. & C. S. Lucas, at the time of making the deed, and if C. S. Lucas purchased slaves at the sale, and has since deposited the note of Bynum & McDade with the trustee, intending that it should be given up, or cancelled, that it was sufficient, although not done until after the property was levied on, and although the trustee did not consider himself authorised to give it up, or cancel it, had he been called on to do so, and that notwithstanding the terms of the sale were cash, yet, if C. S.

Lucas has, since the pendency of the present suit, deposited the note of H. & C. S. Lucas, against Bynum & McDade, and his own note, for the balance of the purchase money, with the trustee, the sale would be sustained by a sufficient consideration. .The Court further charged the jury, that no one but Henry Lucas, had a right to object to Charles S. Lucas applying the funds óf H. & C. S. Lucas to his own use, and that in the absence of proof, his assent to such application was to be presumed.

The record in this case, does not furnish a copy of the deed alluded to, in the instructions of the Court to the jury, or inform us what were its provisions, so that we cannot say that the charge of the Court is erroneous. The deed may, (and we think, probably does,) invest the trustees with large discretionary powers, which made it proper for the judge thus to charge the jury. If such be the character of the deed, and the trustees have not transcended their powers, the question most likely to arise, in a controversy between (be purchasers and a stranger to the deed, would be as to the honesty of their purchases.

But if is needless to speculate upon a writing not now before us. In respect to the right of C. S. Lucas, to make an individual application of the funds of II. and C. S. Lucas, we think it a question which (he plaintiff in error could not raise. No matter how the slaves were paid for, if the purchase was, in other respects, free from legal objection, the title, as against all strangers, would be valid. Henry Lucas might perhaps complain, and, under some circumstances, might hold Bynum and M’Dade still liable to him, or else charge C. S. Lucas, as a trustee, holding the slaves for the joint-benefit of H. and C. S.

Lucas. In the case against Faison, it appears, from the bill of exceptions, that C. S. Lucas, (one of the parties, provided for, by the deed, which is made part of the record in the case against M’Dade,) was introduced as a witness to sustain the deed, and a sale made under it, by the trustees. His competency was objected to, and the objection overruled. The same witness was examined, as to declarations of Alex-der McBade, made some days before the deed was executed, against the consent of the plaintiff; to both which decisions the plaintiff excepted.

That the witness hada direct and immediate interest in the event of the cause, seems too clear to require argument. If the deed was upheld, the fund providing for the payment of his debt, and that of others, would remain undiminished; otherwise, it must be lessened, and if inadequate to meet all demands upon it, the witness must sustain a loss, pro-, with the other favored creditors The admission of the witness to depose, as to the declarations of Alexander McBade, was not permissible.

Starkie lays it down, that no declaration, or entry, by any person, can be given in evidence, where the party who made such declaration, or entry, can be produced and examined as witness — Yol. 1, 390. See also Kennedy vs Meador * That Alexander Mc-Dade was a competent witness, seems unquestionable. In point of interest, it was immaterial to him which party was successful; if the plaintiff failed in condemning the slaves, to the satisfaction of the-. Bank’s judgment, he was .still liable to its payment; and if the plaintiff was successful, the defendants’ demand was still open against him.

So, that in any view, there was an tequilibrium of interest, which never disqualifies. There can be no pretence, that the declarations of the witness were admissible, as a part of the res gestae. They were made at a time and place, different from that at which the deed was executed, and the execution of the deed being the only thing done, they cannot be referred to it.

Our conclusions, then, are, that the decisions of the Circuit Court, overruling the plaintiff’s objections to the admission of evidence, in the cases against McDade and Lucas, can not be revised; because they are not excepted to, but are merely recited in the bills of exception, as a part of the history of the causes; and that the judgment in these causes are consequently affirmed. The exception being well taken, in the case against Faison, the judgment in that case is reversed, and the cause remanded. GOLDTHWAITE, J. not sitting. aBos & a Ev-615>et z$\¡iñúe, ti stew. & 01 er’