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Judges of the Superior Courts, presiding in the Courts below, during the period embraced in this volume.
Chattahoochee Circuit, Hon. ROBT. B. ALEXANDER, Columbus " Hon. AUGUSTUS R. WRIGHT, Cassville,
Southwestern Circuit, Hon. LOTT WARREN, Albany,
* Appointed by the Governor, January, 1847, to fill the vacancy occasioned by the resignation of the Hon. Roger L. Gamble.
In page 2, 19th line from top, for Labes read "Labio."
page 16, 19th line from top, for 8 Peck R. read " 8 Pick. R." In page 53, for Maurico read " Mansico."
In page 81, for 1847 read 1846.
page 105, in running head of the case, for Band read "Bond.” page 192, 9th line from bottom, for or read "of."
In page 194, 6th line from bottom, for 1785 read " 1835.”
In page 245, strike out the name of L. Bankston from the note.
Kenan & Rockwell vs. Miller 325 | Perryman Kirkpatrick, Guardian vs.
Pettee vs. Flewellen and another
Latimer, Whiting & Co. vs. Admrs. Ware Lawrence, Murphy vs. Leonard vs. Scarborough and wife et al. Long and others vs. Strickland
Robinson vs. McDonald
Saffold vs. Keenan Scarborough and wife, et al. Leonard vs.
Smith, Neisler and others vs. 265 Smith, Admr. vs. Burn &
ARGUED AND DETERMINED
SUPREME COURT OF THE STATE OF GEORGIA,
JANUARY TERM, 1847.
No. 1.-IRA PECK, plaintiff in error vs. NATHAN LAND, assignee of HENRY SOLOMON, defendant in error.
[1.] If a creditor purchase property of his debtor in satisfaction of his own debt, and the debts of other favoured creditors, and buy a large surplus over, to the exclusion of a particular creditor, whose suit is pending, it is a badge of fraud.
[2.] The possession of property, real or personal, remaining with the vendor after an absolute deed of conveyance, is an evidence of fraud.
[3.] A creditor, or third person, may pay a full and fair price to an insolvent debtor, for property, still, if the purchase is made to delay or defraud creditors of their rights, it is void as to them.
[4.] The declaration and other original papers of file in the Clerk's office, may be used in evidence, in the same Court to which they belong.
[5.] An application for a new trial will not be granted on the ground that the verdict is contrary to evidence, provided there was testimony enough to warrant the finding, and the Court was satisfied, that justice had been done. Neither will the motion be sustained for the reason, that the verdict was contrary to the charge of the presiding Judge, if the charge itself was erroneous.
Claim from Twiggs Superior Court, tried before Judge SCARBOROUGH October Term, 1846.
Judgment against the plaintiff in error, who was claimant in the Court below, and motion for new trial overruled.
For the facts and circumstances of the case, and the error assigned, see the opinion of the Supreme Court.
HARRIS & ROCKWELL for the plaintiff in error.
Peck vs. Land.
Argument of Mr. HARRIS.
This case is to be determined by the Statute of 13 Eliz., ch. 5. That statute was designed for protection of creditors against deeds, &c. fraudulent in their concoction-of those devised of malice-and not such as in their effect merely might "delay or hinder" other creditors.-Meux, qui tam vs. Howell, 4 East, 14, ed. 1805.
It is evidently meant by the expression-fraudulent in their concoction-those transfers or assignments, without being on a valuable consideration and bona fide designed to sheild the vendor, by continuing him in the enjoyment of property which belongs in conscience to his creditors. Wherever such an end is contemplated, a trust is naturally implied.
To constitute fraud, under the Stat. of Eliz., there must be either an express or implied trust for the benefit of the vendor.- Twyne's Case, 2 Coke R., 212.
The vague and unprecise notions too prevalent as to what constitutes fraud, must and should yield to the stern definition which the law has given to it; and although fraud is a Proteus assuming many forms, and in each and every form, perhaps, odious; yet it is not of fraud as defined by Cicero in his Offices, or by Labes, with which this tribunal has to deal-it is not with the genus, but the species, against which the Stat. of Eliz. was directed.
Fraud, sought to be remedied by that statute, appears by Twyne's case-a case decided in ten years after the enactment— a case of unquestioned authority, until doubted by the Circuit Judge-to be synonymous with a trust. The expressions used confirm this idea-"Here was a trust between the parties""Fraud is always appareled with a trust”—“A trust is the cover of fraud."
The term, "bona fide," used in the proviso to the statute, signifies the non-existence of a trust. Thus, in the second resolution "And no estate, interest in lands, goods or chattels, though on a true and good consideration, is yet bona fide and within the proviso which is accompanied with any trust.”
Again-"And as to the gifts made bona fide, it is to be known that every gift made bona fide, either is on a trust between the parties, or without a trust. Every gift made on a trust, is out of this proviso; for that which is betwixt the donor and donee, called