4th. It is however contended that the defendant's testator was aware of the trust deed at the time of his purchase, which gives rise to the question how his title can be effected by notice. The cases in the English books which involve that question, are Buckle vs. Mitchell, 18 Ves. 116. Pulvertoft vs. Pulvertoft, Ib. 90. Metcalf vs. Pulvertoft, 1 Ves. and Beam. 133. Otley vs. Manning, 9 East 59. Hill vs. Bishop of Exeter, 2 Taunt. 69, and Doe vs. James, 16 East 212. In these cases and several others, it is held that a purchaser for a valuable consideration will hold against a voluntary donee even though he may have knowledge of the voluntary deed at the time of the purchase. And we are now to determiue whether these decisions are to have a governing influence on our judgments. I have already expressed my opinion with regard to the respect due to the decisions of the English Judges on questions which have not been the subject of decisions in our Courts. And although this question may have been discussed, I do not know that it has ever been decided, and I am induced to think that as far as the question has been considered our Courts have entertained different views of the statutes of Elizabeth from the English Judges. When this case was formerly before this Court the question of notice seemed to constitute the most important feature of it. And in the case of id and Mitchell it is said that a deed is not void merely because it is voluntary; it is so only against creditors and subsequent purchasers without notice. There possibly may be caseswhere a subsequent purchaser would not be affected by notice. If the voluntary gift be actually fraudulent, no tice to the subsequent purchaser cannot do away the fraud. If the voluntary deed be a mere pretence and no actual change of property be intended to take plače, it still remains the property of the donor and may become the property of a subsequent purchaser even though he

may have notice of the prior deed. But I speak of cases unattended with any other evidence of fraud than what is to be inferred from the subsequent sale. If the decisions of the English Courts had come down to us supported and approved by the experience of the able Judges of that country and acquiesced in by our own we should not now perhaps be authorized to disregard them. But so far from coming with such recommendations, we find them depricated by all the eminent Judges of the present day. In the case of Buckle vs. Mitchell, the Master of the Rolls says, "I have great difficulty to persuade myself that the words of the statutes warranted or that the purposes of them required such a construction; for it is not easy to conceive how a purchaser can be defrauded by a settlement of which he has had notice before he makes the purchase, 18 Ves. 110." In the case of Pulvertoft vs. Pulvertoft, Ib. 79, the Lord Chancellor observes," the construction put upon the statutes is singular, that a man paying what in other cases is called paying an obligation of nature should be considered as within the penalty of these acts." In the case of Otley vs. Manning, 9 East 70, Lord Ellenborough uses the same language. Lord Mansfield, also, in the case of Boshet vs. Martyn, 1 New Rep. 332, expresses his regret that such a decision had ever been made. I think, therefore, that the question is still open for our consideration, and that we are at liberty to put our own construction upon these statutes, notwithstanding the unanimous decisions which have taken place upon them in England and perhaps in the other States. The English Judges do not now follow their own decisions because they are consistent with the letter or spirit of the Statutes, but because they have so long prevailed as to have become the rule of property and that to reverse them would be productive of more mischief than to persist in an error.

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lor Kent also says he inclines to the modern opinions expressed by the English Judges, but that a contrary doctrine has now taken too deep root to be shaken. But it cannot be said to have taken root here. Happily for us it has never been planted in this State. And the question now is whether we shall follow decisions which are admitted to be wrong or whether we shall profit by the experience of those distinguished Judges whose opinions are entitled to so much respect, and avoid their errors.— The professed object of the Statutes is to avoid deceitful and covenous conveyances, made with the intent and for the purpose of defrauding creditors and bona fide purchasers. But a deed intended to provide for those for whom we are bound by the obligations of nature to provide, is not fraudulent merely because it is voluntary; and he cannot be considered a bona fide purchaser who knowing of such voluntary conveyance combines with the donor thus dishonestly to defeat his own benevolent act. He cannot be defrauded who purchases with the knowledge of a pre-existing deed, but ought to be considered as an actor in the fraud rather than the voluntary donee. And such seemed to be the opinion of the court in the case of Kid & Mitchell above referred to.

It only remains then to be determined whether defendant's testator knew of the plaintiff's claim at the time of his purchase. I think there are strong reasons to believe that he had such notice. And that was the principal ground on which the former new trial was granted. The cause was tried in the first instance before me. I was not satisfied with the instructions which I had given to the jury on that point, and was therefore in favour of granting a new trial. The case Las now undergone a secend investigation under all the advantages afforded by a former trial. The evidence of fraud was much stronger on the last trial than the first and the evidence of notice I think

not so strong. It is probable that the Jury have had the benefit of all the light of which the case is susceptible, and having found two concurrent verdicts, I do not think the Court ought again to interfere. The motion is therefore refused. New trial refused.

GEORGE COTCHET VS. DIXON Executrix of DIXON.

The declarations of a witness, that he is interested in the event of a suit are not, per se, sufficient to deprive the party by whom he is called of the benefit of his examination.

To exclude a witness, it is not enough that he has an interest in the subject matter of litigation, it must be an interest in the event of the particular cause.

If the witness is not a party to the suit, the presumption is in favour of his admissibility, and the party objecting must shew his interest, which he may do by examining the witness on his voir dire, or by evidence aliunde.

This was an action on the case for selling to the plaintiff an unsound negro. John Thomas was offered as a witness for the plaintiff. Defendants attorney objected to his testimony on the ground of interest, and to support this allegation called upon other witnesses, who stated that Thomas had previously said he was interested. The plaintiff's counsel insisted that Thomas' previous declarations of interest did not render him incompetent and still offered him as a witness. The Court rejected him. The plaintiff's counsel then offered to swear Thomas on his voir dire in relation to his interest, which the Court also refused. The plaintiff's counsel then offered Thomas' release of all claims and damages against the defendant, which the Court also refused.—He then submitted to a nonsuit with leave to set it aside in the Court of Appeals on the ground, that Thomas' previous declarations of interest did not render him incompetent, and that he should have been examined on his voir dire as to his

interest; and that his release should have been received for the purpose of rendering him competent.

Gregg, for the motion, cited 2 Starkie on Evid. 757. Peareson, contra.

CURIA per JOHNSON, J. On the questions which have arisen in this case there has been great diversity of opinion, and the decided cases are so directly opposed to each other, that in the adjudication of our own Courts it will be necessary to have resort to principle as the only safe umpire between the authorities which are arranged on the different sides. In Calston vs. Nickols, 1 Ha. and J. 105, the declarations of a witness that he was interested in the event of the suit were admitted in evidence on an objection to his competency. A case corresponding with this in every respect and in which the Court not only said that the witness was excluded by his declarations, but that his competency was not restored by a release is anonymously reported in 2d Hayu. 340. On the other hand, in Fernsler vs. Carlin, 3 Serg. & Rawle 130, and Pierce vs. Chase, 8 Mass. R. 487, it was held that the witness was not excluded by his own declara. tions of interest. Without pursuing this collision fur. ther, it will be sufficient to refer to a note in Metcalf's Ed. of Starkie's Treastise on evidence, 2d vol. page 757, where all the cases are collected. The questions may be stated thus.

First Whether the previous declarations of a witness that he is interested in the event of the suit, is such evidence of interest as will exclude him from being a witness. Secondly: Whether he is a competent witness for the party by whom he is called in the investigation of that fact.

As to the first, the law recognizes but one mode of establishing a fact by parol proof, and that is by the examination of a witness ore tenus, sworn to speak the truth,