Pyron, ex'or, vs. Parker et al.

Robert Murphy and wife, to make the deed to keep the negroes from being taken to pay his debts, and never heard him say he made it for that purpose. James Shipp bought Caroline and employed Ab. Woods to carry her off and sell her; don't know how Shipp paid for her; John Parker had very little property besides that contained in the deed when the deed was made, and that consisted of household and kitchen furniture, with perhaps a small stock of hogs and cattle. Here plaintiffs closed.

of sale; the neShipp's debt on purchase of the

Abraham D. Woods, for defendant, testified, that he knew the negro Caroline; was present when she was sold; Shipp did not purchase her, but was present at the sale; he had a debt against Parker, and also against witness; Shipp took up witness' note, and gave his note to Parker for the balance of the purchase money; Shipp did not take possession of the negro, nor did he sell her; he took her up behind him on leaving Parker's, as witness' mare was unruly; delivered her to witness on separating with him; he did not employ witness to sell the negro or to carry her off. Cross Examination.-Shipp took no bill gro was carried off in the summer of 1851. Parker, which was paid by witness in the negro, was sixty or seventy dollars; witness kept her some two or three months; she stayed at Shipp's until the next day after she was bought; witness sold her to a man by the name of Hornbuckle, in Perry county, Alabama, for over $500; carried her off in 1851; she was kept after her purchase first at Mark Tidwell's, in Merriwether county, afterwards at Mr. Stamper's, in Alabama; she crossed the State line in 1851; witness lives in Haralson county. Shipp and Parker were brothers-in-law; Shipp did act as Parker's agent; Parker sent word to witness by Shipp, and upon receiving that word, witness went up to Parker's and made the trade with him; Shipp gave Parker his note for the balance of the purchase money due from witness for the negro; witness

Pyron, ex'or, vs. Parker et al.

had a note on Grier, and proposed to give it to Parker; he refused to take it, but said he would take Shipp's note; let Shipp have Grier's note, and Shipp gave Parker his note; told Parker to send me (witness) word if he accepted my proposition; Shipp brought word that he accepted it, and witness accordingly went.

Defendant then offered to prove by Joseph Scott, that at the time the deed of gift was made, John Parker was indebted in an amount about equal to the property he had, and that he was then indebted to John Coggins about one thousand dollars; to Isaac Williams seven hundred dollars; and to said Scott seven hundred dollars; and at the time the deed was made, Shipp was a creditor of Parker. The Court rejected this testimony, and defendant excepted.

The Court charged the jury, that if a debtor make a voluntary conveyance to his children or others, the conveyance is void as to creditors, but good against the grantor and purchasers from him, with notice of the conveyance. And if a creditor purchase from the grantor, with notice of the conveyance, he takes subject to the claim of the grantees in the voluntary conveyance.

Creditors might set aside the conveyance, so far as their debts are concerned, but not by a purchase from the grantor.

The grantor having parted with title to the property, loses all control and dominion over it; and a subsequent sale, to a creditor, with notice, will convey no title; but if a creditor should purchase without notice of the voluntary conveyance, his title will be good, and creditors, who become such after the execution of the voluntary conveyance, with notice, will acquire no title. But purchasers, whether creditors or not, or whether prior or subsequent creditors, purchasing without notice, are protected.

To which charge defendant excepted.

The jury found for the plaintiffs four hundred dollars,

Pyron, ex'or, vs. Parker et al.

which might be discharged by the delivery of the negro girl Caroline by the 1st January, next, and the further sum of two hundred dollars for hire, &c.

Defendant moved for a new trial on the grounds,

1st. Because the verdict is against law and evidence, and the weight of the evidence.

2d. Because the Court erred in rejecting the evidence of Joseph Scott.

3d. Because the Court erred in charging the jury that a creditor, with notice of a voluntary conveyance, acquired no title by a purchase from the grantor after the making of the deed and notice thereof.

4th. Because of newly discovered evidence since the trial. The Court refused the motion for a new trial, and defendant excepted.

H. GREEN; and O. C. GIBSON, for plaintiff in error.

HALL; and FLOYD, contra.

By the Court.-BENNING, J. delivering the opinion.

John Parker, in 1842, made a deed of gift to his children, of all of his property, which included some negroes. This deed was signed and sealed by him, was attested by two subscribing witnesses, one of whom was a Justice of the Peace, and was regularly recorded within twelve months from its date.

In 1852, he sold one of the negroes, to Shipp or to Wood, to which of the two, the testimony leaves in some doubt.

At the time of this sale, Shipp held a debt of $120, on Parker, but it was a debt of not more, probably, than one or two years standing; Wood held no debt on Parker.

The Act of 1838, "to prescribe the mode of making gifts of slaves," is, in its first section, as follows: "Be it enacted,

Pyron, ex'or, vs. Parker et al.

That no gift of any slave, or slaves, hereafter to be made, shall be good or available in-law, or in equity, against the creditors of the donor, or subsequent purchasers from him, without actual notice, unless the same be made in writing, signed and sealed by the donor, attested by at least one subscribing witness, and shall be proved or acknowledged, and be recorded within twelve calendar months from the execution thereof." Cobb Dig. 176.

This is as much as to say too, by implication, that if such deed be "made in writing, signed and sealed by the donor," &c., it shall be good and available "against the creditors of the donor, or subsequent purchasers from him," even though they be "without actual notice."

In that case, whether it was Shipp, or Wood, that was the purchaser, he was a purchaser subsequent to the deed of gift; and if it was Shipp, he was also a purchaser with actual notice of that deed. And Shipp, considered as a creditor, was also a creditor subsequent to the deed.

It follows, that the deed of gift was good and available against Shipp, or Wood, whichever it was, that was the purchaser.

It must also follow, that the rejection of Scott's testimony, was right, and, that none of the charges of the Court was such, that the plaintiff in error, could complain of it.

The newly discovered evidence, could have served no purpose, except to impeach Mrs. Parker, if that; but if her entire testimony were rejected, the verdict ought still to stand-the other evidence, and the statute aforesaid, considered.

Judgment affirmed.

Doster vs. Brown.

GREEN B. DOSTER, plaintiff in error, vs. JAMES BROWN, defendant in error.

[1.] Books kept by the party himself, having no clerk, with alterations and erasures of amounts, are not admissible in evidence.

[2.] A witness who has been the owner of mills for 25 or 30 years, may be admitted to give his opinion as to the capacity of a person as a millwright, judging from the fact that his work did not answer the purpose intended.

[3.] It is not error for the Court to arrest the argument of counsel on a point to which there is no evidence.

[4.] It is a good defence in an action for the price of work done under a special contract, that the work was unfaithfully done, whether there was an express warranty

or not.

Assumpsit and New Trial, from Coweta county. Decided by Judge BULL, September Term, 1857.

This was an action by Green B. Doster against JamesBrown, to recover the amount which the plaintiff claimed for work done in the erection of a mill for the defendant. The dam of the mill was washed away and the defendant refused to pay the plaintiff the amount claimed.

On the trial the plaintiff introduced a memorandum book to prove the account. To the admission of this in evidence the counsel for the defendant objected on the ground that it was without date and that there were alterations and erasures in the amounts charged, and the Court ruled it out.

The facts of this case are sufficiently stated in the opinion of the Court.

POWELL, for plaintiff in error.

SIMS and ERSKINE, contra.

By the Court.-MCDONALD, J. delivering the opinion.

[1.] The first assignment of error in this record is on the decision of the Court rejecting, as evidence, the memorandum book of the plaintiff, tendered as his book of original entries, to prove the account sued on. It was ruled out on two