1877 of the land. From that decree an appeal was taken January Term. by Hord's administrator to this court. Before considering the case upon its merits, it is necessary to dispose of a preliminary question raised by the exceptions to the depositions of Joseph W. and William S. Colbert. These exceptions are based upon the ground that Enos Hord, the plaintiff's intestate, being dead, the defendants are incompetent to testify in this cause. One of them, Joseph W. Colbert, was cross-examined at great length by the counsel for Hord's administrator, upon all the issues involved; and when the whole examination was concluded, the objection was then for the first time made to the competency of the witness. It does not appear that the attention of the court below was called to the objection; nor does it appear whether that court considered the deposition in rendering its decree of the June term 1873. It is very certain that the counsel making the objection was aware of it, as well before as after the cross-examination was commenced and concluded. The question is, has it not been waived by this manner of proceeding. Is an adverse party with knowledge of the alleged incompetency, permitted to extract whatever he can from a witness upon a rigid and protracted cross-examination; and if the testimony is favorable to his side insist upon its being read, if unfavorable have it excluded? Upon this point the authorities leave no room for doubt. They hold that if the party be aware of the existence of the interest, he will not be permitted to examine the witness and afterwards to object to his competency if he should dislike his testimony. The writers on the law of evidence go further and declare that in the common law courts, where the examination is conducted orally, the objection on the ground of interest, if known, must in general be taken before the witness is examined in chief, for otherwise the objection might be suppressed for the purpose of obtaining an unfair advantage. Formerly, indeed, it was considered necessary to raise the objection on the voir dire; and if once the witness is sworn in chief, he could not afterwards be objected to on the ground of interest. But this rule has been relaxed in modern times; and now it is allowable to make the objection after the witness. is sworn in chief, but before the examination is commenced; and where the interest is incidentally disclosed for the first time in the course of the trial the evidence may then be excluded. See 1 Starkie on Evidence 134; 1 Greenl. Evi., sec. 421. This last author (Greenleaf) says the rule in equity is now the same as at law; and the principle applies with equal force to testimony given in a deposition in writing and to an oral examination in court. Whether as a general rule the objection on the ground of interest must in the common law courts be made before the examination in chief, and whether the same rule prevails in equity, are questions not necessary now to be decided; and no opinion is intended to be given on that subject. It is sufficient for the purposes of this case to say, that when the party cross-examines upon the issues involved, with a knowledge of the interest of the witness, he will not be permitted afterwards to make the objection. Having made the objection however in due season, he may then proceed to cross-examine without prejudice to his right to move to suppress the deposition at the hearing. Jacobs v. Laybom, 11 Mees. & Welsby R. 684; Moorhouse v. De Passon, 19 Ves. R. 432; Harrison v. Courtauld, 5 Eng. Ch. R. 428; Donelson v. Taylor, 8 Pick. R. 390; Graves v. Graves, 2 Paige R. 62, 3 Paige 240– 1877. January Term. Hord's adm'r V. Colbert & als. 1877 554; 1 Payne C. C. R. 400; 1 Phillip on Evidence January Term. 789. Hord's V. Colbert & als. It may be said that the rule here stated has no apadm'r plication to parties examined as witnesses. Under the former practice, in the chancery courts of this state, when a special commission was issued to take the deposition of a party, saving all just exceptions, the duty devolved on the court to take notice ex officio of objections to the competency of the witness arising from his interest in the event of the cause. And in such a case an appellate court will consider and decide upon the question of competency, although the deposition may have been read in the court below without objection. Such was the decision in Beverley v. Brooke &als., 2 Leigh 425. The court was of opinion there that the question would have presented more difficulty had the deposition been taken under a general commission. Whatever may have been the distinction formerly between parties and other witnesses, that distinction has been entirely abrogated by the statute, which declares that no witness shall be incompetent to testify because of interest; and in all actions, suits, and other proceedings of a civil nature, at law or in equity, the parties thereto shall, if otherwise competent to testify, and subject to the rules of evidence, and of practice applicable to other witnesses, be competent to give evidence. Code of 1873, page 1109. Under this provision it is very clear the rule in respect to objections for incompetency on the ground of interest is equally applicable to parties examined as a witness as to those who are not parties. For these reasons I am of the opinion, if there was any valid objection to the testimony of Joseph W. Colbert, that objection has been waived, and he must now be treated as a competent witness. 1877. January Term. Hord's adm'r v. Colbert In the case of William S. Colbert, when his deposition was taken, the counsel of the plaintiff was present at the examination in chief; but did not crossexamine. When the deposition was completed an exception was then taken for the first time to the testimony on the ground already stated. Whether this & als. action constituted a waiver of the objection is a question already adverted to, not decided nor intended to be decided here. The case may be decided without reference to the evidence of William S. Colbert, and it is better perhaps so to decide it than to settle an important principle of practice upon a slight and cursory examination. Having thus disposed of the question relating to the evidence, we are now to consider the merits of the controversy. And first as to the question of fraud: Is the deed of trust fraudulent? This involves an inquiry into the consideration of the two bonds secured by that deed. Upon this point it is only allowable to examine a few of the more prominent facts established by the evidence. It cannot be expected that this court is to exercise the functions of a commissioner in chancery, settle an account, and undertake to ascertain how far each item is sustained by the evidence. Our inquiry is with the charge of fraud: Is it established by the testimony? And here it must be borne in mind that the law does not presume fraud. It is not to be assumed on doubtful evidence, or circumstances of mere suspicion. The party alleging the fraud must clearly and distinctly prove it. The onus probandi is upon him to prove his case as charged in the bill. If the fraud is not strictly and clearly proved as it is alleged, although the party against whom relief is sought may not have been perfectly clear in his dealVOL. XXVIII-8 1877. ings, no relief can be had. Kerr on Fraud and Mis January Term. take 382-4. Hord's adm'r V. &als. Judge Staples here went into a critical examination of the evidence upon the question. The conclusion Colbert he arrived at was, that the testimony so far from establishing the existence of fraud, tended strongly to show that the bonds, which are the subject of controversy, are founded upon a bona fide indebtedness from Martin to the Colberts. Having concluded his review of the question of fraud, Judge Staples then proceeded to consider the testimony in relation to the alleged notice. Upon this branch of the case he also concurred with the chancellor, who pronounced the decree, that the notice is not satisfactorily or sufficiently proved. The consideration of this subject involved a very careful and detailed examination of the testimony in all its aspects. The discussion however being one purely of fact, and very extended, is omitted by the direction of Judge Staples. In conclusion he said: These creditors were required by the plain terms of the statute to docket their judgments in order to preserve their liens. The whole tendency and spirit of modern legislation is to impose upon creditors and purchasers the duty of putting upon the record the evidences of their rights. It is the registration that is to be looked to as furnishing the notice. It is very true an exception is made in the case of a purchaser with notice. The reason is, he is deemed guilty of a fraud in taking a conveyance with knowledge of a better right in another. It is therefore held, that the notice in such cases must be very clearly proved. This is peculiarly so when the notice is sought to be established against the positive denials of the defen |