Thurmond and others vs. Reese.

such execution by the proper officer, that there is no personal property other than slaves to satisfy such execution. Prince 506.

2. Before a judgment creditor can come into a court of equity to obtain satisfaction of his judgment, he must sue out his execution and have it returned nulla bona. 4 Johns. Ch. R. 670, 687, 182; 1 Paine R. 535; 9 Cowen R. 722; 20 Johns. R. 554; 1 Paige R. 305; 4 id. 209; 1 P. Wills. 445.

By the Court.-LUMPKIN, J. delivering the opinion.

The facts in this case, so far as they are material to its proper determination, are briefly these:

Several persons were indebted to Cuthbert Reese, the defendant in error, on sundry small notes, on which suits were brought in the justice's court. Pending the cases, the defendants executed mortgages on the whole of their property to John Thurmond. (The fi. fas. issuing from the magistrate's court in favour of Reese were levied on the whole of the property, real and personal, belonging to the defendants, except five negroes, which were run off. The proceeds of the sale, amounting to some sixteen hundred dollars, were applied to older executions. Cuthbert Reese then filed his bill, alleging the foregoing facts and charging that the mortgages were without consideration and fraudulent, and made for the express purpose of defeating his debt. The bill stated that these mortgages were recorded, but no precise sum being set forth in them, purporting to be to secure the payment of two thousand dollars "more or less," purchasers were deterred from bidding, not being able to ascertain the extent of the lien. Notice was given of the mortgages on the day of sale. Besides this, Thurmond had obtained the control of two old executions against the defendants, and by the use of these and his mortgages, and by various covinous practices at the sale, he succeeded in buying in the property for sixteen hundred dollars, which was well worth $8,000 or $10,000; and by seizing this fund with his old fi. fas., he had entirely defeated the complainant in the collection of his just claims. The bill prays, that an account may be taken of the actual indebtedness of the mortgagors to Thurmond, that the land and negroes bought by him may be re-sold, and that after discharging his demands, the residue be appropriated to complainants' debt.

The answer admits that the property was sold as represented,

Thurmond and others vs. Reese.

but denies the fraud, or that the sacrifice in the sale was attributable to the causes assigned in the bill.

A re-sale of the property has been decreed by two successive special juries.

During the progress of the appeal trial, Reese tendered in evidence his justice's court executions. This testimony was objected to, on the ground that there was no entry by the proper officer, to wit, the constable, that there was no other property to be found. Judge Meriwether overruled this objection, and to this decision the plaintiff in error excepts. And it becomes our duty to revise this opinion, and to reverse it if it be erroneous.

[1.] We distinctly recognise the rule, that before a creditor can come into a court of equity to subject the equitable estate of his debtor to the payment of his demand, he should have pursued his legal remedies to every available extent without being able to obtain satisfaction. And for the most obvious reason; why ask the aid of chancery to enforce legal process, while there are legal assets liable to seizure and sale?

But this is not the case made by this bill; it is filed to set aside fraudulent conveyances, made for the express purpose of defeating the collection of complainant's debt, and to annul a sale in which the property of the debtor was sacrificed by the improper use of these covinous instruments. The bill makes a clear case of actual fraud, and a strong case. A court of equity has therefore jurisdiction in remedying the fraud, and Cuthbert Reese comes before it, neither appealing to its favour or its discretion, but demanding relief ex debito justitiæ.

The case of the Planters & Mechanics' Bank vs. Walker et al., 7 Ala. 946, is precisely parallel in principle; and the court there say, that it is a misnomer to consider and call the thing in controversy, the equitable estate of the debtors, for, being in pari delicto with those who claim under them, chancery would not entertain a bill in their favour, but leave them to adjust as they could the rights they set up, without lending its aid.

"But the right of the ereditor to subject property of his debtor, fraudulently conveyed, is founded in that principle of the common law which enjoins integrity as a virtue paramount to generosity, and denounces fraud as incompatible with honesty and fair dealing."

No doubt the creditor here, as in the case cited, could re-levy his execution, and attack those conveyances at law; but the court

Williams vs. The State."

in our sister State assign a very satisfactory reason why equity should retain its concurrent jurisdiction over this subject.

"The right," says Chief Justice Collier, "to disembarrass the title before the property is sold to satisfy the judgment, is valuable to the creditor; if he were compelled to sell it under execution incumbered with a conveyance or lien supposed to be fraudulent, comparatively few would be inclined to purchase, and they at a depreciated price. This consideration, apart from all others, is a potent argument in favour of the jurisdiction of equity."

The very case under discussion affords a striking illustration of the truth of this doctrine.

Let the judgment be affirmed.

No. 64.-WILLIAM L. WILLIAMS, plaintiff in error vs. THE STATE OF GEORGIA, defendant in error.

if on

[1.] It is a good cause of challenge to a juror, by the State, in a capital case, being sworn on his voire dire he declares that he has conscientious scruples against the infliction of capital punishment.

[2.] The proper time for challenging, is between the appearance and swearing of the jurors.

[3.] It is irregular and improper to ask any other questions of a juror, than those authorized by the statute, with a view of ascertaining whether he is objectionable for favour.

[4.] A bias or prejudice against crime, is not such as will constitute a good challenge for cause.

Indictment and conviction for murder. From Richmond Superior Court. Tried before Judge HOLT. June Term, 1847.

This cause was tried upon a plea of not guilty.

After the arraignment was made and the usual preliminary steps taken, a panel of forty-eight jurors was presented to the prisoner, and several jurors were selected and sworn to try the cause, when John Barnes, one of the panel was called, and by the State's attorney put upon the prisoner, who required him to be sworn upon his voire dire, and examined touching his competency; and having answered both questions prescribed by the statute negatively,

VOL. III.

58

Williams rs. The State.

voluntarily stated that he had conscientious scruples concerning the infliction of capital punishment, whereupon the Court below permitted the State's attorney to pass said juror upon a challenge for cause, to which the prisoner's counsel objected, insisting that the scruples so avowed by the juror, constituted no sufficient ground of challenge for cause, and that the State's attorney could not legally object to said juror, after having offered him to the prisoner.

In the further progress of the selection of the jury, Shade S. Pardue, another of said panel, having been called, was by the State's attorney sworn upon his roire dire and examined touching his competency, and having answered the questions prescribed by statute negatively, was asked by the State's attorney whether or not he entertained conscientious scruples concerning the infliction of capital punishment; to which he replied that he did, before the defendant's counsel had time to object to the question; whereupon the State's attorney moved that said juror be passed upon a challenge for cause, the prisoner's counsel objecting both to the question and the alleged challenge for cause; when the State's attorney withdrew the question. The Court below held that the question was illegal, but nevertheless allowed the challenge for cause, the disclosure having been made.

And in the further progress of selecting the jury, Solomon L. Bassford, another of said panel, was called and put upon the prisoner by the State's attorney, who required him to be put upon his voire dire and examined touching his competency. The juror having answered the first question prescribed by the statute negatively, to the second question, "Have you resting on your mind any bias or prejudice for or against the prisoner at the bar?" he responded, "I fear I have;" when the presiding judge below propounded the further question, "Mr. Juror, is your bias or prejudice against the prisoner, or the crime?" To which the prisoner's counsel objected, as unauthorized by law, but the Court overruled the objection, and the juror answering that his prejudice was against the crime, was put upon the prisoner.

To which several rulings and decisions of the Court below, the counsel for the prisoner excepted, and assigned the same for error.

MILLER & JENKINS, for the prisoner.

FLOURNOY, Attorney General, for the State.

Williams vs. The State.

MILLER & JENKINS, for the prisoner, made the following points: That there was error in this, to wit, that the Court decided that the State's attorney was entitled to challenge for cause, a juror, who, after having been put upon the prisoner by the State's attorney, voluntarily stated that he entertained conscientious scruples concerning the infliction of capital punishments.

And further, there is also error in this, that the Court decided that the State's attorney was entitled to challenge for cause another juror, who stated that he had scruples in regard to the infliction of capital punishments, in answer to a question propounded to him by the State's attorney on his voire dire, additional to the questions prescribed by the statute in such cases provided.

And further, there is also error in this, that another juror having been examined on his voire dire, in manner and form prescribed by the statute in such cases made and provided, and not having answered the questions in such manner as to establish his competency, his honour, the judge, propounded to him a question not prescribed or authorized by said statute, and, upon his answer thereto, adjudged him competent.

And further, there is also error in this, to wit, that two of said jurors, to wit, John Barnes and Shade S. Pardue, having been put upon their voire dire, and having answered the questions prescribed by the statute in such manner as to make them competent, the court, for other causes, adjudged them incompetent, and permitted the State's attorney to challenge them for cause, without the intervention of triors.

And cited the following authorities: 1 Coke on Litt. 157, a; 157, b; 1 Kelly R. 571; Hotchk. 798.

By the Court.-LUMPKIN, J., delivering the opinion.

ib.

This is a writ of error to a judgment of the Superior Court of Richmond county, whereby the plaintiff in error was convicted of murder.

When the venire in this case was called, John Barnes, one of them, was put upon the prisoner, who required him to be sworn upon his roire dire. He answered both questions prescribed by the statute negatively, and then voluntarily added, that he had conscientious scruples against the infliction of capital punishment; whereupon the Court permitted the Attorney General to challenge said juror for cause, the prisoner's counsel objecting