a witness who is equally accessible to the other party is not a circumstance which can be considered against him.10

§ 16. Admissibility and relevancy of evidence in general. -In investigations of alleged fraudulent conveyances large latitude of inquiry should be permitted as to the conduct of the parties, the circumstances of the transaction, the consideration of the purchase, and the means of the vendee, and where a transfer is attacked by the creditors of the transferrer as fraudulent, all material facts and circumstances bearing on the transaction and on the relationship of the parties tending to prove the fraud may be considered. The intent is seldom disclosed on the face of the transaction. It is generally concealed under legal forms. It can seldom be proved by direct evidence. It must in most cases be established by inference from a variety of facts and circumstances." Many items of evidence may be intro

10. Nelms v. Steiner, 113 Ala. 562, 22 So. 435.

11. N. Y.-Beuerlien v. O'Leary, 149 N. Y. 33, 43 N. E. 417, rev❜g 28 N. Y. Supp. 1133; Sweeney v. Cohen, 23 App. Div. 94, 48 N. Y. Supp. 569. And see McCabe v. Brayton, 38 N. Y. 196; Persse, etc., Paper Works v. Willett, 24 N. Y. Super. Ct. 131.

U. S.-Sonnentheil V. Christian Moerlein Brewing Co., 172 U. S. 401, 19 Sup. Ct. 233, 43 L. Ed. 492; Batavia v. Wallace, 102 Fed. 240, 42 C. C. A. 310; Brittain v. Crowther, 54 Fed. 295, 4 C. C. A. 341.

Ala.-Nelms v. Steiner, 113 Ala. 562, 22 So. 435; Rice v. Less, 105 Ala. 298, 16 So. 917; Howell v. Bowman, 99 Ala. 100, 10 So. 640; Smith v. Collins, 94 Ala. 394, 10 So. 334; Moog v. Benedicks, 49 Ala. 512.

Ark.-Hiner v. Hawkins, 59 Ark. 303, 27 S. W. 65; Dyer v. Taylor, 50 Ark. 314, 7 S. W. 258.

Cal.-Roberts v. Burr (1898), 54 Pac. 849.

Colo.-Kaufman v. Burchinell, 15 Colo. App. 520, 63 Pac. 786.

Fla.-Volusia County Bank v. Bigelow (1903), 33 So. 704.

Ga.-Cohen v. Parish, 105 Ga. 339, 31 S. E. 205; Coulter v. Lumpkin, 100 Ga. 784, 28 S. E. 459; Robinson v. Woodmansee, 80 Ga. 249, 4 S. E. 497; Trice v. Rose, 79 Ga. 75, 3 S. E. 701; Smith v. Wellborn, 75 Ga. 799; Woodruff v. Wilkinson, 73 Ga. 115.

Ida. Ferbrache v. Martin, 3 Ida. 573, 32 Pac. 252.

Ill.-Fabian v. Traeger, 117 Ill. App. 176, aff'd 215 Ill. 220, 74 N. E. 131; Anglo-American Packing, etc., Co. v. Baier, 31 Ill. App. 653; Huschler v. Morris, 31 Ill. App. 545.

Ind. T.-Foster v. McAlester, 3 Ind. T. 307, 58 S. W. 679.

Iowa. - Dunning v. Bailey, 120 Iowa, 729, 95 N. W. 248; Meyer v.

duced which, standing detached and alone, would be immaterial, but which in connection with others may tend to illustrate and shed light upon the character of the transaction, to show the position in which the parties stand, and their motives, conduct, and relations to each other. All such circumstances are properly submitted to the jury when accompanied by instructions that

14

inferences are to be drawn from them, not singly, but as a whole. It is the bearing, not the independent force, of the particular fact or circumstance upon which relevancy depends.12 The question is whether the evidence can throw light on the transaction, or whether it is irrelevant.13 In questions of this kind objections to testimony as irrelevant are not favored, since the force of circumstances depends so much upon their number and connection, and it is a question which the law confides largely to the sound discretion of the trial court.15 Fraudulent intent may be proved by any kind of evidence by which fraud in any other case may be proved.16 Parol evidence is admissible to establish fraud and when fraud is thus proved it renders inoperative the formal transactions which have been adopted by the parties in order to carry out the fraudulent purpose.' While a wide range of investigation is permitted as to relevant facts, evidence that is wholly irrelevant is no more admissible in trying questions of fraud than in any other investigation or trial of civil actions at law.18 To show that a sale was fraudulent as to a creditor of the vendor, evidence is not admissible that other creditors sued out an attachment when they heard of the sale.19 In an action to set aside fraudulent conveyances of the property of one of several judgment debtors, deeds tending to show that some of the other judgment debtors had made conveyances of

360, 71 L. J. Ch. 518, 86 L. T. Rep. N. S. 542, 9 Manson, 259, 50 Wkly. Rep. 575.

12. Ala.-Nelms v. Steiner, 113 Ala. 562, 22 So. 435.

Mass.-Stebbins v. Miller, 94 Mass.

591.

Mo.-Blue v. Penniston, 27 Mo. 272. Pa.-Baltimore, etc., R. Co. V. Hoge, 34 Pa. St. 214.

Tex.-Cox v. Trent, 1 Tex. Civ. App. 639, 20 S. W. 1118.

13. Volusia County Bank v. Bigelow (Fla. 1903), 33 So. 704; Cooke v.

17

Cooke, 43 Md. 522; Zerbe v. Miller, 16 Pa. St. 488.

14. Nelms v. Steiner, 113 Ala. 562, 22 So. 435; Blue v. Penniston, 27 Mo. 272; Sarle v. Arnold, 7 R. I. 582.

15. Sweetser v. Bates, 117 Mass. 466.

16. McLane v. Hamilton, 43 Vt. 48. 17. Robinson v. Bliss, 121 Mass. 428; Hills v. Eliot, 12 Mass. 26, 7 Am. Dec. 26; Harris v. Daugherty, 74 Tex. 1, 11 S. W. 921, 15 Am. St. Rep. 812. 18. Wessels v. Beeman, 87 Mich. 481.

19. Miner v. Phillips, 42 Ill. 123.

their property are inadmissible, unless defendant is in some way connected therewith.20 Evidence that, before the transfer attacked as fraudulent as to creditors, the debtor endeavored to sell the stock of goods transferred to another person, is inadmissible.21 To prove a sale of a stock of goods fraudulent as to creditors, testimony showing the ordinary profits on such goods, amount of capital required to carry on the business, and the custom and terms of sale, is too remote.22 Where an assignment is attacked as fraudulent, the judgment roll in an action between other parties, in which the same assignment was found to be fraudulent, is inadmissible.23 Evidence of the value of the land in dispute, without specifications as to time, or of its value at the time of the trial, the conveyance in question having been made years before, is not admissible." Various other items of evidence have been held to be irrelevant in the cases cited in the note below. Where a contract of sale is alleged to be fraudulent as against creditors, evidence of all that was said and done between the parties at and before the agreement is competent, not

25

20. Rozek v. Redzinski, 87 Wis. 525, 58 N. W. 262.

21. Flood v. Clemence, 106 Mass. 299; McCuin v. Merchants' Grocery Co. (Ark. 1906), 93 S. W. 563, when too remote as to time.

22. Derby v. Gallup, 5 Minn. 119. 23. Mower v. Hanford, 6 Minn. 535.

24. Zerbe v. Miller, 16 Pa. St. 488. 25. N. Y.-Persse, etc., Paper Works v. Willett, 24 N. Y. Super. Ct. 131.

U. S.-Repauno Chemical Co. v. Victor Hardware Co., 101 Fed. 948, 42 C. C. A. 106.

Ark. Hempstead v. Johnston, 18 Ark. 123, 65 Am. Dec. 458.

Cal. Casey v. Leggett, 125 Cal. 664, 58 Pac. 264; Roberts v. Burr (1898), 54 Pac. 849.

Ill.-Nelson v. Leiter, 93 Ill. App.

Miss.-Wilkerson v. Moffett-West Drug Co. (1897), 21 So. 564.

Mo.-Lillard v. Johnson, 148 Mo. 23, 49 S. W. 889.

Pa.-Bell v. Throop, 140 Pa. St. 641, 21 Atl. 408.

S. C.-Bomar v. Means, 53 S. C. 232, 31 S. E. 234, mental competency of third person through whom conveyance was made to grantor's children.

Tex.-Gonzales v. Adoue, 94 Tex. 120, 58 S. W. 951; Searcy v. Gwalt

only to show fraud, but to rebut it.26 As a rule reasonable liberality must be allowed to the person charged with the fraud in his attempt to disprove or rebut it, such a charge being a serious accusation affecting not only his property but his reputation." The general rule is that he is entitled to introduce evidence of any state of facts inconsistent with a fraudulent intent.28 Evidence that the debtor intended to use the proceeds to pay debts is admissible on his behalf to disprove fraudulent intent." Evidence that the vendor was in poor health and needed a change of climate is admissible to show good faith.30 Evidence as to what was done with a mortgage after its execution and the circumstances under which it was given is competent and material upon the question of the grantor's intent.31 Testimony of the grantor or mortgagor as to threats of personal violence at or about the

ney, 36 Tex. Civ. App. 158, 81 S. W. 576.

26. Angell v. Pickard, 61 Mich. 561, 28 N. W. 680.

27. Osborne v. Wilkes, 108 N. C. 651, 13 S. E. 285; Heath v. Slocum, 115 Pa. St. 549, 9 Atl. 259.

28. Angell v. Pickard, supra;

Mower v. Hanford, 6 Minn. 535; Filley v. Register, 4 Minn. 391, 77 Am. Dec. 522.

Evidence held admissible under the rule stated in the text.

N. Y.-Stacy v. Deshaw, 7 Hun, 449; Persse, etc., Works v. Willett, 24 N. Y. Super. Ct. 131; Ackerman v. Salmon, 31 How. Pr. 259.

Ala.-Troy Fertilizer Co. v. Norman, 107 Ala. 667, 18 So. 201; Goodgame v. Clifton, 13 Ala. 583; Graham v. Lockhart, 8 Ala. 9.

Cal.-Byrne v. Reed, 75 Cal. 277, 17 Pac. 201.

Ill.-Martin v. Duncan, 181 Ill. 120, 54 N. E. 908.

Minn.-Tunell v. Larson, 39 Minn. 269, 39 N. W. 628.

N. H.-Smyth v. Carlisle, 16 N. H. 464.

R. I.-Austin v. A. & W. Sprague Mfg. Co., 14 R. I. 464.

Evidence held irrelevant.Wadsworth v. Marsh, 9 Conn. 481; Tufts V. Bunker, 55 Me. 178, grantor's previous offer to sell to other persons.

The testimony of an attorney who drew a bill of sale, to the effect that he regarded the transaction as an honest one, is inadmissible. Sweet v. Wright, 62 Iowa, 215, 17 N. W. 468. But testimony of an attorney that he advised the transaction is admissible. Dittman v. Weiss (Tex. Civ. App. 1895), 31 S. W. 67.

29. Norton v. Billings, 4 Fed. 623, 9 Biss. 528; Phifer v. Erwin, 100 N. C. 59, 6 S. E. 672.

30. Vyn v. Keppel, 108 Mich. 244, 65 N. W. 966.

31. Nugent v. Jacobs, 103 N. Y. 125, 8 N. E. 367.