[Boughton et als. vs. The State.]

In considering this question, we will exclude all enquiry as to the fact of another bond having been given in October, 1845, and the effect and operation of that latter bond upon the obligation or liability created by the first bond, but limit our enquiry as to whether at the time it was taken it was a good statutory bond for the revenue of 1845. To determine this question, we have been referred very properly to the acts of 1836, ch. 15, s. 1 and 2; the act of 1840, ch. 142, sec. 1 and 2, referring to the the former, and the act of 1844, ch. 103, sec. 1. Considering these acts in pari materia, we feel satisfied that the bond in question, although a good voluntary common law bond, is not a good statutory bond so far as regards the second year, or that of 1845.

And this, mainly, because the said 1st section of the act of 1844, authorizes the County Court in each and every year if they see proper to do so, to appoint for the year a collector of the State and county revenue, other than, and distinct from the Sheriff of the county, and such other collector shall at the April Term, give bond, &c., for the year. If any year, the County Court shall not appoint a distinct collector, the Sheriff shall, at the April Term, enter into bond for the year to collect the taxes therein. This power of annual appointment by the County Court makes it material that the Sheriff's bond should be annual, or limited to one year, for if taken for two years, the appointee of the County Court, if they exceeded their power, would supercede his power, his duty and his bond for the second year.

Moreover, the section expressly says, that his bond for collection of revenue, shall be taken for one year, and this no doubt, with the view that the County Court might be free to execute the power given them.

Under the operation of this act, it is every year contingent until the January Court of the County is over, whether the Sheriff will or will not be collector of the revenue.

Under such circumstances, it is convenient and proper, and according to the letter of the law, that the Sheriff's revenue bond should be annual only.

If, therefore, since the passage of the act of 1844, it be taken

[Cage, Ex'r. vs. Wells et als.]

for two years, it is not a good statutory bond for the second year, and therefore, the summary remedy of judgment by motion does not exist.

The Governor, in whose name it is taken, must resort to his action for the use and benefit of the State.

If the bond had pursued the statute, in the particular referred to, the judgment would still have been wrong, because the motion must be made, and the jugdment rendered in the name of the Governor, to whom the bond is made payable and his successors in office. It is not done in this case, but the judgment is rendered in the name of the State of Tennessee.

This is contrary to express statutory direction in the concession of this summary remedy.

Let the judgment of the Circuit Court be reversed and arrested.

CAGE, Ex'r vs. WELLS, et als. WELLS et als, vs. CAGE, Ex'r.

A conveyance of record by the laws of Louisiana cannot be set aside and annulled in an attachment suit against the property conveyed or by execution levied on it, or by other collateral proceeding, as may be done by the statutes of Elizabeth, or the act of 1801, but only by direct revocatory action against the vendee.

T. & J. Wells, citizens of Louisiana, were indebted to Cage a large sum of money, and an attachment bill levied on a race mare, as the property of said Wells', in the county of Sumner, was returned to the Chancery Court at Gallatin, at the instance of Cage against said Wells'.

The Wells' answered the bill and declared that the property did not belong to them, but that it was conveyed by act of record to their wives.

A cross bill was filed by Martha & G. Wells, by their next friend, claiming the animal levied on as their property. This bill was answered and proof taken. Cage died during the pendency of the suit and his executors were made parties.

The following decree was delivered in the Chancery Court:

[Cage, Ex'r. vs. Wells et als.]

"Be it remembered that these causes came on to be heard and were heard for final adjudication at the present term of the court, on the 12th day of October, 1846, before the Honorable B. L. Ridley, upon the bills answers, replications, exhibits and proofs in the causes. And the court being satisfied from the proof, that the mare "Reel," mentioned in the pleadings, at the time of filing said attachment bill, by the said Jesse Cage in his life time, and at the time of levying said attachment, on said mare "Reel," to wit: "on the 12th day of October, 1843, was not the property of the said Montfort Wells and Thomas J. Wells, but that the same was the property of the said Jannett Wells and Martha L. Wells, wives of the said Montfort Wells and Thomas J. Wells, having been conveyed to them bona fide, by the said Montfort Wells and Thomas J. Wells, in the Parish of Rapides, State of Louisiana, by bill of sale, executed on the 12th day of February, one thousand eight hundred and forty three, for a valuable consideration in part payment of separate paraphernal property of their wives, the said Jannett Wells and Martha L. Wells, and converted to their individual use and benefit, and that said mare "Reel" was therefore not subject to said attachment." And the court being 'of opinion that said cross bill was proper to have been filed by the said Jannett Wells and Martha L. Wells, to enable them more effectually to make their defence to said attachment bill; It is therefore ordered, adjudged and decreed by the court, that said attachment bill be dismissed, and that the attachment levied upon said mare, "Reel," be discharged, and that the executors of the said Jesse Cage, pay the cost of these causes, and that execution issue."

Guild, for complainants.

All contracts made to delay, hinder or defraud creditors are avoided by the laws of every civilized community. The civil code is better adapted to suppress fraud, and avoid contracts affecting injuriously creditors than our common law, aided by the English and American statutes.

Article 1972. No contract shall be avoided by this action but

[Cage, Ex'r. vs. Wells et als.]

such as are made in fraud of creditors, and such as if carried into execution would have the effect of defrauding them.

Article 1979. Every contract shall be deemed to have been made in fraud of creditors, when the obligee knew that the obligor was in insolvent circumstances, and when such contract gives to the obligee, if he be a creditor, any advantage over other creditors of the obligor. 10th L. R. 368.

By the civil law, if the husband use or appropriate to his private purposes the dotal or extra-dotal property of his wife, she is regarded as a creditor of the husband, and may by an authentic act, untainted with fraud, acquire the title to the husband's property. But the above principles are applicable to all connubial acts between husband and wife. Now there is no distinct proof showing what the dotal property of the wife or wives were in this case. The proof shows, that the Wells' have two large plantations, a number of negroes and working hands, and large personal property of every description. Someof the witnesses say that a portion of these lands and property were the dotal property of the wives, but how much, none of them pretend to say, what they had consumed or appropriated none show, some spoke of mortgages and incumbrances on the estate, but none are shown, others spoke of Mrs. Wells going security for her husband, and being bound to pay some $4,000. They spoke of the Wells' about the same time they attempt to convey the perishable property, they convey to their wives all the lands and negroes; not content with this, two executions came into the hands of the Sheriff of Rapides, against the Wells', one for $4,253 33; on the 4th of February, 1843; on the 23rd March, 1843, they surrender to the Sheriff, as the return of the execution show, all the blooded stock, all the furniture, cattle, sheep, hogs, their carriages and various other things. They make all kinds of advertisements, and on the 9th May, 1843, the Sheriff sells all these things, worth some $8 or 10,000, to John R. Elger, in a lump, on 12 months credit for $30, when it is proved by Col. Elliott and Thomas Kirkman, that Reel was at that time at Elliott's plantation in Sumner county, Tennessee. The pretended sale by a combination between the Sheriff, Elger and the Wells' took

[Cage, Ex'r. vs. Wells et als.]

place near Alexandria, in Louisiana, on the 9th May, 1843. This is the foundation of Elger's title to this mare Reel, set up in the cross bill. This fraudulent proceeding reflects upon the transaction of the 27th of February, 1843, between the Wells' and their wives; it clearly shows the fraudulent intent of each, and taints the whole transaction as fraudulent against creditors. This copy of the pretended sale between husbands and wives took place on the 27th February, when the Sheriff had in his hands three executions some twenty-three days previously. Which executions were afterwards returned, no property found except the sales before spoken of. This fact with the repeated sales by the husbands to the wives show the insolvent condition of the husbands. Their object and intent was to evade and defraud their creditors, and particularly those pressing executions in the hands of the sheriff. Here is every badge of fraud -conveyance as made not between kindred persons, but between husbands and wives-each knowing that their respective husbands were utterly insolvent if this property could be secured to them, covering the whole estate, both real and personal, including all consumable articles-secret trusts existing, and benefits to be derived to each of the husbands out of the property conveyed-no change of possession-four of the brood mares for the last few years were both breeding by Kirkman, on shares with the Wells', in Alabama-Reel if not in Tennessee at the time of sale, in all probability in Alabama-Kirkman proves that Wells' sent her to his house, near Florence, (spring of 1843,) where she remained some time, who under the direction of Wells', sends her to Col. Elliott, who had kept her breeding from May, 1843, to this time, on the account of and for the benefit of Wells'. Their wives not known in Tennessee as pretending to have any interest in her till after the filing of the bill. These facts and circumstances certainly show a very strong intent to defraud the creditors of the Wells' under the civil law, should be so declared-the wife can only be regarded as the creditor of the husband to the extent of her dotal property appropriated by the husband, and when attacked for fraud, the amount should be clearly shown by proof. Then if the husband is in failing circumstances, the