An execution in favor of Skellie was levied on certain lands, which were claimed by Mary James, the wife of the defendant in execution. On the trial of the case, the jury, under the charge of the court, returned a verdict for the claimant. The plaintiff made a motion for a new trial on several grounds, which was overruled by the court, and he excepted. The facts will be found in the official report of the case. •
1. One of the grounds taken in the motion for a new trial was the following: (8) Error in charging as follows: “When the jury shall have clearly satisfied themselves that such a debt (any actual. debt) existed, then that debt will stand on the same footing as any debt that the husband may owe to anybody else. It would be just as good a consideration between the husband and wife as it would be between him and any other outside party. The only difference is, that the law requires it should, perhaps, be looked into a little more closely.”
We think the court should have granted a new trial upon this ground. After charging that the husband and wife had a right to make contracts, one with the other, and the contracts would be good between them, he added, “The only difference is, that the law requires it should perhaps be looked into a little more closely.” We think, on the contrary, that in a con*424test between creditors of the husband on the one hand, and the wife on the other, where a fraud is charged, and where the wife sets up a secret contract between herself and her husband, as was done in this case, the jury should be instructed to scan the transaction closely, and that the bona Jides thereof must be clearly established, and not that “perhaps” they might look into it “ a little more closely.”
If there ever was a case in which the jury should have had positive and stringent instructions in regard to their scrutiny of the conduct of the husband and wife, this is such a case. It seems to us that the evidence in this record discloses that this pretended contract was made for the deliberate purpose of defrauding creditors. It is claimed by the husband and wife that, in the year 1868, he borrowed from her $180, and in 1870, he borrowed $500. The contract between them was that he was to speculate in this property, and when he bought the land he was to take the title in his own name, and when he bought personal property he was to do the same, and all the profits he made were to be hers, and all the losses- were to be his. He was also to pay her interest on the money, he claiming that the rate of interest he was to pay her was twelve and a half per cent., and she claiming that it was seven per cent. Between the time he borrowed the money and the time he made this deed to his wife, under which she claimed this land, $680 had increased to more than $4,000. The taking of these titles in his own name enabled him to obtain credit, and perhaps Skellie, this plaintiff, sold him goods on the faith of this very property to which ho had the title, and which he transferred to his wife after incurring this debt to Skellie. We think, therefore, that under this state of facts, the judge should not have qualified the rule above referred to, but should *425have instructed the jury to closely examine the transaction, and should have further instructed that the bona Jides of these transactions must he clearly established. Eor a fair and full discussion of this principle, see the case of Booher vs. Worrill, 57 Ga. 235.
2. It is also claimed, in the motion for a new trial, that the court refused to compel counsel for the claimant to testify in the case. "We hardly think that the counsel, when he declined to testify, brought himself within the provisions of the act of 1887 (acts 1887, p. 30.) He did not say that he acquired the knowledge from his client by virtue of his relations as attorney, or by reason of the anticipated employment of him as attorney. In order to render him incompetent to testify under this act, he must have acquired his knowledge from his client by virtue of his relations as attorney, or by reason of the anticipated employment of him as attorney. If he acquires, the knowledge in any other manner, he is both competent and compellable to testify.
Judgment reversed..