Page 4

4th 300
and it being Shown that Thomas was in a failing condition and insolvent
at the date of the deed. The defendant objected to the introduction of the
testimony of Said Attorney but the court overruled the objection and permitted
the evidence to go before the Jury to which the defendant Excepted. The
Plaintiff introduced no proof Shewing that any of the Creditors provided for in the
deed had assented to the same previous to the levey of the attachment by the
defendant on the 20th of February AD 1846 Except Bradford and
Sanders and hen closed his case. The defendant then introduced a deed
from Henry H Hunter to John H Thomas bearing date on the 20th
day of February 1845 conveying to the Said Thomas all of the Said Hunters
interest in the assets of the copartnership of Hunter & Thomas and also proved
that they were the Same assets conveyed afterward in the deeds marked
Exhibit A, with the Exception of the Land and property levied on and
also the Same debts owing by Said copartnership with the Exception of the
individual debts of the Said Thomas above mentioned a copy of which
Said last mentioned deed is appended also to the Bill of Exceptions
with the endorsement thereon markd Exhibiit B. and by the court made
a part [blank] of the same. The defendant further proved
that John H Thomas retained the possession of the property levied on by him
from the Execution of the deed by him to Plaintiff until the date of the
levey. That at the date of the levey to the defendant took a forthcoming
Bond for the delivery of the Said property from the Said Thomas without
an actual Seizure of the Same and that before the time when it was to be
delivered to him according to the term of Said Bond, the Plaintiff then
demanded it of him and that he the the defendant replied that he
could not give it up because it was not in his possession .
The defendant further proved that he the Said Thomas also remained in
possession of the House and lot mentioned in Deed A. until the levey
of the attachment to defendant and that afterward he carried a
portion of Said property with him into the State of Georgia about the
last of the Spring of 1846 whither he had removed with his family
but delivered it up according to the condition of the forthcoming Bond
after the date of Deed A The assignor Thomas was a man of
family That he had a wife and Seven children - that up to the date
of the levey he was in the habit of using the propeerty levied on and
it was also proved that the Plaintiff when he accepted the trust was
entierly Solvent and that he has Since remarried So this was all the
proof offered Except what appears hereafter, under under this
Statement of fact the defendant asked the Court to charge the Jury
First ch
1 That
if Thomas was in the possession of the property levied on at the date of
the levey of the attachment by the permission of Bradford under the
deeds and that the defendant as Sheriff levied on the Same without