amounting to five hundred dollars, which it asserted were due, and were intended to be secured by conveyance-when in fact, no such sums were due; and the notes were only given to cover advances that were to be made afterwards. This court held these facts to be conclusive of an intention to hinder and delay creditors; and that the deed being fraudulent for that reason, could not stand as a security for the sums actually due. But we think the question is a very different one here. It is true, the deed states that the liability to Johnson's heirs amounts to about two thousand dollars: but it does not profess to state with precision the existence and amount of the debt-as in the case of Peacock v. Tompkins. Here Lucas was guardian, and it does not appear that any settlement had been made, by which he could have accurate knowledge of the amount he would owe his ward. It was a subject about which he might well be mistaken-and there is no evidence that he knew what the indebtedness actually was. In this state of uncertainty, when the deed does not assume to state the amount with accuracy; we think the statement, that it was about two thousand dollars, when only half that sum is actually due, does not furnish evidence of intentional fraud.

The complainant's counsel insists, that the statement in Dotson's answer, that the negroes mortgaged, were left in the possession of Lucas, with the intention that he might make money thereby and pay his debts, is an admission that it is fraudulent. We do not so construe this statement. If a deed be otherwise fair and bona fide, the intention of the vendee to benefit the vendor, can not make it fraudulent. If there be a secret trust for the benefit of the vendor, or if the stipulations be intended to hinder and delay creditors, it is fraudulent. But if none of these exist, and the mortgagee is induced to advance his money, and take the mortgage, leaving the property in possession of the mortgagor, from kind feelings, believing the mortgagor will be benefited thereby, and be better enabled to pay his debts, certainly the existence of such feeling is no evidence of fraud. And this is the sense in which the admission is made. The relationship between the parties, though a circumstance to awaken suspicion, seeing fraudulent conveyances are most usually made to kindred, is, of itself, no evidence of fraud. The previous purchases, which are not seriously attacked as fraudulent, have no tendency to establish that this mortgage is fraudulent, unless the evidence had made it doubtful whether the defendant had means at command sufficient to make all the

advances these deeds purport that he has made. But the proof shows that the various descriptions of business in which Dotson has been engaged have been profitable, and that he has realized profits sufficient to have made all the advances he alleges.

But it is said the absolute bill of sale of the eighth of January was fraudulent, and that it reflects upon the mortgage of the third of that month, and is evidence that the mortgage was also fraudulent. The parties do not rely on this bill of sale, and if they did, it unquestionably could not stand. It is absolute on its face, and the negroes were left in the possession of Lucas; and an additional consideration to that expressed in the mortgage is stated, no part of which was paid. And this circumstance of the bill of sale, thus executed, so soon after the mortgage was made, it must be owned, casts suspicion upon the fairness of the mortgage. But as the liabilities mentioned in the mortgage, are shown to be really due, and there is no evidence. that Dotson received any money or effects from Lucas, by which to aid him in making these advances, while his own means are shown to have been ample for the purpose, we can only say that the bill of sale is a suspicious circumstance; it is not proof that the mortgage was fraudulent. We are therefore of opinion, that the deed of mortgage is a valid security for the debts really due, and the liabilities actually existing.

2. The complainants insist, that as the guardian's bond is blank as to the penalty, it is void, and creates no liability on Dotson, and that the claim of Johnson's heirs should not be taken into the account. Although it be true, that the omission to insert a penalty in the bond, would prevent a recovery at law, 9 Law Lib. 1, yet it does not follow that there is no remedy in equity. The parties signed and sealed this instrument as a bond, stipulating for the performance by Lucas, of the duties of guardian; and in thus signing and sealing this instrument, they intended to execute a lawful bond for the guardianship of these wards; but by mistake, or oversight, the clerk failed to insert the penalty. By reason of the execution of this bond, Lucas obtained possession of the estate of his wards, and has acted under his appointment as their guardian-himself and his sureties, considering themselves bound by this bond; and the one has given and the other has accepted an indemnity in the execution of this mortgage, upon the assumption of its obligatory force. Under all these circumstances, Dotson, as surety for this guardian, would not be heard in a court of chancery, were he now urging the objection made by the complainants, against his liabil

ity upon the bond; and much less will the complainants be heard against the claim of these infants, coupled as it is with the admission of Dotson, that he is liable.

This is a much stronger case for holding that the security is liable, than the case of Wiser v. Blachley, 1 Johns. Ch. 607, or the case of Armistead v. Bozman, 1 Ired. Eq. 117, which were cited at the bar. In both those cases, the guardian's bond was made payable to different persons, than those, who by the statute, should have been the payees. In the former case, the court said, "that when the intention is manifest, it will always relieve against mistakes in agreements, and that as well in a case of surety, as in any other case. It would be intolerable that such a mistake should prejudice or destroy the rights of infants." Both those cases were suits against the sureties for the guardian, and were resisted by them; and in the case of Armistead v. Bozman, it had been determined that the parties were not liable at law; nevertheless in both cases, the bonds were held to be obligatory in equity. But here, the surety does not resist, but acknowledges his liability, and with these infants, now insists on the existence of that liability, and asks that they may have the benefit of the indemnity provided in this mortgage.

The case is much stronger, therefore, than either of the cases referred to; and we think, in the language of the case of Wiser v. Blachley, supra, "it would be intolerable that such a mistake should prejudice or destroy the rights of these infants."

Let the decree be affirmed.

MORTGAGE OF TRADER'S STOCK OF GOODS IS NOT FRAUDULENT PER SE, although it provides that the mortgagor may remain in possession and make sales in the usual course of business: Briggs v. Parkman, 37 Am. Dec. 89.

ERRONEOUS AMOUNT STATED IN A MORTGAGE without fraud, does not vitiate such mortgage: See note to Stover v. Herrington, 41 Am. Dec. 91, where other cases are collected. Debts secured by mortgage must be described with sufficient certainty to enable subsequent purchasers and creditors to ascertain the extent of the incumbrance: See note to North v. Belden, 35 Id. 87.

THE PRINCIPAL CASE IS CITED in Neuffer v. Pardue, 3 Sneed, 194, to the point that the recital of a fictitious consideration, as the ground of the deed, is evidence of an intention to hinder and delay creditors. And in Lasell v. Tucker, 5 Sneed, 37, that a transaction not fraudulent in fact, but only by operation of law as to certain debts secured, would be good to the extent of the bona fide debts.

ISAACKS v. EDWARDS.

[7 HUMPHREYS, 465.]

AUXILIARY PROCESS IN THE NATURE OF ANCILLARY ATTACHMENT must issue from and be returnable to the court in which the original suit is pending.

DEFECTS IN ANCILLARY ATTACHMENT are waived by an answer to the merits, and by motion to compel the plaintiff to elect whether they will prosecute the original suit or the attachment bill.

COURT OF CHANCERY IN TENNESSEE is by statute vested with jurisdiction, in attachment cases, over demands purely legal.

EXISTENCE OF THE FACTS NECESSARY TO GIVE JURISDICTION TO ISSUE ATTACHMENTS can be questioned only by a plea in abatement.

ATTACHMENT bill. The facts appear in the opinion.

Wright, for the complainant.

Brown, for the defendant.

By Court, GREEN, J. This is an attachment bill, on two promissory notes, executed by the defendant to the female complainant while sole. The bill states that suits had been commenced in the circuit court on said notes, and were then pending, that the defendant was about removing himself and his property beyond the limits of the state, and prays an attachment, etc., that the defendant answer, etc., and for general relief. The bill was filed in July, 1844. The defendant answered the bill, admitting the execution of the notes, and the existence of the suits in the circuit court, but denying that he was about to remove himself and property, and excepting to the jurisdiction of the court. Proof was taken in the cause, and at September term, 1845, the defendant, on making it appear to the court, that the complainants were prosecuting suits upon these promissory notes in the circuit court, and this bill also, moved that the complainants elect, which suit they will prosecute; whereupon he elected to prosecute this bill. And at March term, 1846, a final decree was made for the complainants, from which the defendant appealed to this court.

The only question now raised upon this record is, whether the court of chancery had jurisdiction in this case to decree relief to the complainants. This court has decided at the present term, in the case of Fisher v. Cummings, 7 Humph. 232, that when, under the act of 1843, c. 29, an attachment issues in a case pending in court, this auxiliary process must issue from, and be returnable to the court, in which such suit is pending. The objection to this attachment, therefore, had it been made on the

return of the process, either by demurrer to the bill, or by motion to dismiss, would have been fatal. But upon this point, we think the case is now very much altered. It is true, exception is taken to the jurisdiction in the answer, but the defendant answers fully to the merits; and goes on to take proof, and prepare the case for hearing; and at September term, 1845, more than a year after the bill was filed, he moved the court to compel the complainants to elect, which suit they would prosecute. When therefore on his motion, the election was made, and the suits at law were dismissed, it is too late to insist that this bill shall also be dismissed, because a suit at law for the same cause, was pending when the bill was filed.

2. We will not inquire, whether by the act of 1843, an attachment bill will lie, in such a case as this, leaving out of view the pending of the suit at law? The first section of the act of 1843, c. 29, provides, "that in all cases where a debtor, or a defendant in any suit or judgment, is removing or about to remove himself or his property beyond the limits of this state, or shall be absconding, or concealing himself or his property, or effects, it shall be lawful for the creditor, or other person entitled to sue, to obtain an attachment against the property, debts, choses in action, and effects of such debtor in the same manner as such process may be obtained against absconding, or non-resident debtors, under the different statutes now in force in this state, and the same proceedings may be had as in other cases of attachment; except so far as it is altered by this act." By the eighth section an attachment may issue under this act, whether a suit be pending or not. By the provisions of this act, an attachment may issue against the property of a person who is removing or about to remove himself or his property beyond the limits of the state, or who shall be absconding or concealing himself or his property, founded on the same cause of action, that by the law previously in force, would entitle a party to an attachment against an absconding or non-resident debtor. The section of the law above quoted, changed the former law,in two respects, to wit: 1. It authorized an attachment as auxiliary to a suit then pending; and, 2. It enlarged the grounds for suing out this process, by permitting it to issue against a party who is about to remove himself or his property beyond the limits of this state. But wherever, by the laws previously in force, an attachment might issue to recover a debt, by this act, an attachment will lie, for the cause mentioned in it, from the same forum, to recover the same debt.