#### J. C. & C. Burckmyer *vs.*Elizabeth Mairs, Administratrix, Simon Mairs.

Tried before his Honor J. Axson, in City Court, November Term, 1836.

This was an action of assumpsit, on a promissory note for $133.SO, dated 5th November, 1803, and payable sixty days after date. Pleas *non assumpsit, and plene adminisiravit prmter.*The note was admitted, and defendant required to support certain designated items in her accounts, filed with her plea.

Mr. Seymour, defendant’s counsel, produced the inventory of Mair’s estate ; the account sales by permission of Ordinary.

Mr. Hertz was produced, to prove the amount stated in the accounts, to be due to him. He said, that Simon Mairs was indebted to him in an open account, a note of #]00, and the balance of the account was made up by notes indorsed by him. for Mairs, which he paid.

The amounts of account and notes as follows ;

Open account, $50 75

*Notes.*— 1. 14th Kov. 1831, 100 00

2. 11th Nov, 1833, 225 00

3. 19th Nov. 1833, 135 00

4. 3 0th Dec. 1830, 200 00

He says thin rinse notes are still due, and owing to him, less th® dividend which he has received iioui ctetéudaut.

Ot his cross examination, he said, he does not think that the original note, of which (he second note is a rene» el, exceeded $500, won’t be positive ; thi. ks it was discounted in the bai k ot the State; lie ¡¡aid theso i, otes as the friei oly lt.doiser of JVi.urs; he and Mairs were on intimate terms ; witness u as his fnendh indorser; don’t be.ieve that me original ot the second tinte originated more iban six months before the date of trie second note ; Rians always took *209off *one fourth.*He presumes that the proceeds of these notes went into his business; knows nothing.of the original of the note of the 19th November, 1833. . The note of 10th December, 1833, did not exceed 850 or 400 dollars. All these notes, he thinks, ori. ginated in 1833 ; Mairs died in December, 1833 ; presumes all these notes went generally into his business. His business was buying and selling notes ; also kept a small store. He did a large business for thirty years, in notes, but a bad business; continued it afterwards in a small way. Witness being asked if Mairs’ store was a grocery store, said he could not term it a *grocery*store* Mairs was never three or four hours a day in his house ; always about the batiks.

Mr. Mairs was called to substantiate a debt due to him; he said that Mairs was indebted to him $850, by note dated July 17th, 1833 ; it was for money borrowed at different times ; that the amount is still due and unpaid.

On his cross examination, he said he received a dividend from the defendant, and gave it back to her, and also gave her the note; he said the amount was loaned in small sums, of $50, $60, and $100, at a time ; it was about eighteen months running up to the sum of $850; made a memorandum of these amounts when loaned, but tore them up' when the note was given. Being asked what business he pursued, he replied, he speculated in buying and selling goods ; keeps no store, made his money in buying and selling; wit. ness boarded with Mairs in' his life time, and paid him for his board. He cannot say that Mairs became insolvent, by the loss of the large sums of money put as bad debts in tlie inventory, such as Deliesseline’s and others; supposed he did, does not *know*that hia insolvency was produced by the loss of them ; he had other great losses five years ago.

The tax returns of Mairs, for 1833, handwriting proved by witness.

*Contents.*— Buildings, $3,000

Stock in trade, 1,000

Four slaves,

Witness proceeded ; at the sale of the personal estate he bought all for the widow ; other persons bid, friends and strangers ; there ■ were plenty of bidders; no one else bought any thing. Witness swore out of jail in 1828 ; at that time had nothing but wearing apparel; got into business just after that, and made money enough to lend to Mairs. In reply, he said his business consisted in buy., ing at auctions and selling again. Swears again, positively, to his debt. He was then asked as to Morris’ debt charged in the accounts, consisting of two notes, each for the sum of $50, both dated 28th December, 1832, and payable, one in nine, and the other in twelve months. He said that he knew that these notes were, and are still, due to Morris. He was also interrogated as to Charles Prince’s demand, consisting of

An open account, $331 16

*Items.*— Note paid, 130 00

Samuel Cromwell’s note, 188 00

Interest, 13 1©

*210He said that the above amounts were still due to Prince, less th® dividend received. He was also interrogated as to Samuel Cromwell’s claim of $310. He said that it was for money loaned, and some, notes ; Cromwell has received his dividend ; knows that amount to be due to *Cromwell,*at *least*that amount. He does not know *of*any other property that Mairs left except what is in his inventory ; he never owned a negro ; the negroes returned by Mairs were not his property ; if he had owned slaves witness would have known it.

On his cross-examination, he said the negroes were about the-house ; the old ladv bought them a long time ago ; he knows that Cromwell’s debt was due, because he did the business for Mairs., The notes were given for money loaned ; he knows the not. s are due, because he received the money *from*Cromwell, a .d deposi'ed goods in pawn of equal value at each time. Swears to the balance as correct.

Mr. Ottolingue svvorn ; was the auctioneer who disposed of the estate ,of Mairs; gave public notice : proves the account sales ; *ii>*was a fair open sale ; there was as good a company as could be-expected at the time, (races ;) there were other bidders besides Mairs ;• nothing was said about buying for the widow ; it was a -small stock} knew Mairs; in 1833, he did not own a negro to his knowledge ; he was one of his imimute acquaintances.

Cross-examined ; said the negroes were in the house of M ars„

Mr. Hertz re-called ; knows that Mairs did not own a negro ire 1833. He was instrumental m bringing Mairs and wife to ibis-country. Mrs. Mairs bought the negroes with her own money be-fore marriage. Bill of sale of Mary, (from whom the negroes ire question, sprung,) dated in I’-iOSi, to. Mrs. Elizabeth Mairs. She had bank stock which paid for this negro ; this wench has several children, probably *three-,*and these are the negroes that Mairs returned. Witness never saw any others there. Mrs. Mairs came to this country in 1805, was married in 1807. A trust deed dated 21st April, 1826, was produced, from Simon Mairs, to A Talvande, jn trust, settling these negroes, and a house in King street, on Mrs. Mairs.

Mr. Hertz further examined said that Mairs had no other property when he made this deed, than what was therein contained. The first paypnent made on the property therein conveyed, was from Mrs. Mairs’ own property. In 1826, Mairs was following the brokerage business; he did not carry on the wine business at that time. He commenced that business *after*he purchased the King street house ; how soon offer, witness does not know. Every person was astonished at Mair’s insolvency. Witness knew of the *trust deed,*but did not attribute it to fraud ; he was in the brokerage business, and could have stood a loss of $5,000 ; he was supposed to be the Rothschild of Charleston. When he went into King-street, he was thought rich; was thought rich by witness at the time of his death. Before and after going into King street, he sustained heavy losses; he was considered able to sustain his losses; be was supposed to be worth $50,000. When he lived in State *211street, he did a great deal of business for Turmo and others; he owned no real estate, except the house ir Kin¿ street; his money was better employed. The conveyance of the house was produced from Hester Lloyd *el. a%.*to Simon Mairs, dated 1st December, 1825.

Mr. Sinclair sworn ; said he was acquainted with Mairs; was a broker, bought and sold notes and goods, loaned money on pawn '; he had loaned out, from first to last, about $5,000 ; told witness he had lost a .great deal of money, from 1819 to l-t‘28, or 1829. Mairs told witness this two or three months before his death. Mairs ■shewed him some jewelry and plate; the last witness saw were two ■gold watches. Three months before nis death, in order to induce witness to indorse for him, he asked him to go with him. and se'e ■what he had; he would be safe in indorsing for him. He saw Mairs have the two watches in bis pocket; saw' nothing else. Witness t. inks Mairs was very poorin 1826, told him so himself; from 1819, up to a short time before his-death, it would have been an act ■of charity to indorse for him; so Mairs said to him ; does not ■know of his owning any other property than the house and negroes. Witness Chirks that Mairs was insolvent in 1826.

On his cross-examination, he cannot say what the value of the two watches were ; he did indorse tor Muirs ; Mairs paid all his indorsements except the last; he stopped indorsing for him by degrees, from 1820, up to his death.

Mr. Seymour objected to the confessions of Simon Mairsf and I overruled the objeebon.

Mr. Mairs re-called: said he does not know if there were any watches in his (Mairs’) possession at the time of his death ; Mail’s was in the habit of loaning small sums on pawn of watches. Oa •being asked by one of the jury, if he recollected any thing of a watch of one Edward Wood, he said he recollected that that watch was in Cromwell’s possession, pawned by Mairs; to whom it had been pawned *by Wood;*that Wood furnished him the money to redeem it from Cromwell; that all the articles redeemed from Cromwell, were redeemed by the owners of the articles.

Mr. Hertz re called; said his first indorsements commenced in 1810, and he continued indorsing up to the time of his death, except during the time there was a little coldness between them.

Mr. Ottolingue re-called; said he knew Mairs in 1826 ; regarded him solvent; he was in good credit; was able to meet bis demands, and did meet them.

Cross-examined ; he said he knew that Mairs had command of money ; knows of no property he had.

Here the evidence closed.

I charged the jury, that a voluntary settlement was not, because it was voluntary, fraudulent, and void ; that a person, not in debt, might dispose of his property as he pleased, provided he did not do so with a view to future indebtedness; aid even if he was in debt at the time of the settlement; but if his debts bore but an inconsiderable proportion to the amount of his estate, and his subsequent *212insolvency could be honestly accounted for, I thought the settlement would be sustained.

After these remarks, I left it to the jury, to apply the evidence offered, as well to the several disputed items of the accounts, as to the *bona Jides*of the settlement.

The jury found a verdict for the plaintiffs in both pleas ; and I. was served with the,annexed notice of appeal.

JACOB AXSON, *Recorder.*

*Grounds of Appeal.*

1st. That it is respectfully submitted, that his Honor erred in permitting the confessions of Simon Mairs, made a considerable time before his death, to be given in evidence on the trial of this case.

2d. That there was no evidence to prove, that at the time of the. conveyance from Simon Mairs to Talvand, in trust for Mrs. Mairs, that he was in debt, but on the contrary that he had uniformly paid all de nands presented against him, until a short time prior to bis decease ; and that none of the present debts was in existence at the time of the execution of said trust.

bd. That there was no evidence of fraud on the part of Simon Mairs, at the time of executing the said trust, nor did it appear, from any of his subsequent acts.

4th. That the verdict was contrary to law and evidence.

R. W. SEYMOUR, *Defendant's Attorney.,*

Mr. Justice O’Nealj,

delivered the opinion of the court.

It was insisted on the argument here, that the *bona fides*of the settlement could not be questioned in a case between a creditor and the administratrix. It is true, that the defendant, as administratrix, could not object to the settlement, on the ground, that it was voluntary, and would defeat the rights of creditors in a case in which she was seeking to set it aside, upon the familiar principle, that she represents the party making the deed, and cannot therefore make an objection, which he would be estopped from making. But there is no doubt that creditors may, whenever the settlement is interposed to defeat, delay, or hinder them, shew, that it is, as to them, invalid. In this case the defendant pleads *plene administravit,*to which the plaintiff has replied assets generally, as he had the right to do, according to the case of Johnson vs. Johnson, 1st Bailey.

Under this replication the plaintiff proved the fact, that the defendant’s intestate was, at the time of his death, in possession of the slaves in dispute, and that they were and are in the possession of the defendant; this cast upon, her the burthen of shewing that the legal presumption, that they were his goods and chattels, arising from the fact of his possession, could not prevail, inasmuch as he had aettled them, by a post nuptial settlement, on herself.. *213To such evidence, coming from her, and set up in discharge of herself, there can be no doubt, that the plaintiff may reply that the settlement cannot bind him, on account of either actual or legal fraud. 3n such a state of things, it is net the administratrix who attempts to set aside the voluntary conveyance of the intestate, but it is his creditor who is injured thereby, and who, therefore, is entitled to make the question against the defendant, m possession of the slaves, who as *cestm que*trust in possession, after site became discovert, represents both the legal and equitable interest, arising from the. settlement.

Filed 14th Feb., 1837.

■SeymouR, *for Appellant*

■Eckhard, *for Appellee.*

The declaration of Mail’s, as to the state of his affairs, whether he had made or lost money from 1819 to 1828, or 1829, were clearly admissible against the defendant, as his administratrix, and as his • voluntary donor. In the first character, the defendant representing, the intestate, cannot object to his own evidence, against himself, and on the ground, to shew the competency of the testimony, it is only necessary to say, that when Mail's made the declarations, he was in the possession of the chattels; and that the proof objected to applies not to his title to them, but to his pecuniary circumstances, which might lead him to desire to cover his property from his reditors.

The question of fraud or no fraud, took the most favorable turn for the defendant, of which it was susceptible, in being submitted to the jury, as one of fact. We perceive no error in the conclusion of the jury.

The motion is dismissed.

JOHN B. O’NEALL.

We concur,

J. S RICHARDSON,

A. P. BUTLER.

JOSIAH J. EVANS,

I dissent in the opinion given in this case.

RICHARD GANTT.