1. The first question presented by the assignment of errors is, whether the circuit court erred in requiring the plaintiff in the execution to elect between the further prosecution of this case, and a bill in chancery, which involved the question of title to the same property? The answer to this question depends, mainly, upon our own rule, applicable to the subject, and the practice which has prevailed under it. The rule is in these words:
“ Where a suit at law and a bill in chancery are instituted for the same claim or demand, the defendant, on suggestion, supported by affidavit, may move the court to inspect the records; and, if it appear that the two suits are for one and the same cause of action, it shall be ordered that the plaintiff elect in which he will proceed, and that he dismiss the other.”
In opposition to the enforcement of this rule, by the court below, it was insisted, that this was not the kind of case at law, contemplated in the adoption of the rule — that it was not an action, originally, brought by the plaintiff, to recover the property in controversy — but that the issue had been forced upon him by *540the claimant. It is true, this is not a common law action to recover the property — but the plaintiff, by causing his execution to be levied on it, as effectually asserts that he is entitled to its value, under the claim, created by his judgment, as he could have done by bringing an ordinary action at law. The claimant comes in, and denies the plaintiff’s right to the property, to satisfy-his execution — and, under our statute, an issue is required to be made up between the parties, which as effectually tries the title, as it could be tried in an action of trover, or detinue. The proceeding on the part of the plaintiff may be regarded as a statutory action, in which the leading process is the execution — the levy being made, and affidavit and bond being filed by the claimant, the “ court shall require the parties concerned, to make up an issue, under such rules as they may adopt, so as to try the right of property before a jury at the same term, &c.” We, then consider the proceeding in the court below as “ a suit at law,” within the fair interpretation of the rule.
So far as regards the proper “ suggestion, supported by affidavit,” that the suit at law and the suit in chancery were «instituted for the same claim or demand,” there is no room for controversy. The court below inspected the records and so determined^and the bill filed by the plaintiff in chancery, does seek to set aside a conveyance between the same parties, for the same consideration, for the same number of slaves, and the same description of other property, which is embraced in the contract, the validity of which was brought in question by the issue at law — and each proceeding is the same, as to the subjection of the property to the satisfaction of the plaintiff’s demand. It is true, that other objects, and other parties are embraced by the bill in chancery — but so far as concerns the property levied on, the object to be attained, and the parties interested, are the same, and no other rights, or interests can be affected by the order of election, for the court below required the dismission of the suit in chancery, “ so far only as the matters embraced and involved in this suit, are involved in the suit in chancery.”
The objects of the rule under consideration were to diminish litigation, and lessen the costs and expenses incident to it, by declaring that the same claim or demand, should not be, at the same time, the subject of a suit at law, and another in chancery. Regarding these considerations, and the language of the rule, that *541the election shall be ordered “ where a suit at law, and a bill in chancery are instituted for the same claim or demand” — it cannot be doubted that the defendant may, at the earliest moment, after the two suits are commenced for the same claim or demand, make his suggestion; and that the powers of the courts of law and chancery, over such applications, are concurrent, to be exercised by that tribunal, before which the suggestion of the identity of the claim, or demand sued for in the two jurisdictions, shall be first made.- In the case of Doe, ex dem. Duval’s heirs v. McLoskey, [1 Ala. Rep. N. S. 708,] this rule came under revision, and although the precise point, raised here, was not presented in that case, it is believed the construction now given it, is in perfect harmony with the views then expressed.
2. The claimant having introduced as evidence, a contract in writing, between himself and John H. Walker, purporting to be an absolute sale, by the latter to the former, of about 590 acres of land, “ all his (said Walker’s) negroes, say 68 in number, little and big, and his stock of horses, hogs, cattle, household furniture, pleasure carriage and plantation tools, and the growing crop of of the current year,” in consideration of #37,000, about #15,000 of which were to be paid to the branch bank at Montgomery, #3,000 to Bull & Files; about #1000 more to different individuals, and the balance by annual instalments of #2200 each, the first payable on the 1st of March 1847, and the balance payable annually thereafter, extending to March 1852, the plaintiff moved the court to exclude this contract from the jury, on the ground, that under the evidence introduced by the plaintiff, and then before the court, including the record of the plaintiff’s judgment and issuance and returns of executions under it, it sufficiently appeared that this was a pre-existing debt — that the vendor, Walker, was then in failing circumstances, and that being in such situation, such a conveyance by him as that above set forth, from the long time of credit given, and other indications accompanying it, was, on its face, fraudulent and void, as against creditors. This motion was overruled by the court, and that opinion is the ground of the plaintiff’s second assignment of error.
There is no question, that the facts being fully ascertained, fraud is a question of law. It was so held by this court in the case of Swift v. Fitzhugh, [9 Porter, 67.] The court then said, “fraud is a question of law, though from the manner in which *542cases'are usually presented in court, it must, in general, be left to the jury to determine. But when the facts are clear and undisputed, the question of fraud, or not, is a pure question of law.” [1 Bur. Rep. 395; 9 Johns. Rep 337.] In the case of Ashurst v. Martin, [9 Porter 571,] this court said: “ It is settled beyond controversy, that a debtor in failing circumstances, may convey all his property, in trust to be equally divided amongst his creditors, if the property be fairly and honestly devoted to this purpose, un-tramelled by onerous conditions upon the creditor, and without stipulating for any pecuniary benefit to himself, as the consideration on which the creditor shall be allowed to participate in the assignment.” In the same case, [p. 572,] it was further held “ as well settled, that the debtor may give a preference to particular creditors, and declare that such may be paid their entire demand, &c.” And we may lay it down as equally unquestionable, that if a man think proper, he may sell his entire estate, real and personal, at the same time, and to one individual; and such a contract, on its face, would not, necessarily, be fraudulent. Apply these principles to the contract before us, and on its face, it purports to be an absolute sale of a certain quantity of land, all the grantor’s slaves, his horses, hogs and cattle, household furniture, pleasure carriage, plantation tools, and growing crop, for a certain consideration, which, if not fully adequate, is certainly not revolting for its inadequacy — and directs certain debts to the Montgomery branch bank, and to certain individuals to be paid, the balance to be secured by notes, payable to himself, for certain sums annually. The contract does not show that the grantor owes any other debts, consequently, there is nothing to render it improper, that the balance of the consideration money should be paid to himself. On its face, it is a plain bargain and sale of property; and as regards land, and some other descriptions of property, it does riot appear to be all the grantor owned — nor does it show, of itself, that the interest of any one, was either injured, or intended to be injured; consequently there is nothing in the contract itself, to authorise the conclusion that it was intended to defraud, delay, or hinder creditors. The counsel for the plaintiff, however, relies on the evidence of his judgment and several executions, as proving a pre-existing debt, and the further evidence that the vendor was in failing or insolvent circumstances; and that the long credits given for the purchase money, with the other *543circumstances attending the transaction, rendered the contract fraudulent and void, as against creditors,-and that the court ought so to have considered it, and have wholly excluded the contract from the jury. But to have pursued such a course, the court must have passed on the credibility, as well as the weight of the evidence, tending to establish the facts, or conclusions insisted upon; they were not ascertained by the contract, and it was the peculiar province of the jury to determine, whether the testimony was credible, and whether it was sufficient to establish such facts, as in connection with the written contract, to amount to a fraud upon the rights of creditors. Fraudis very often, indeed, most usually a mixed question of law and fact. Such was the case in the present instance, and the court below, did right in overruling the motion to exclude the written contract from the jury.
3. The third assignment of errors charges, that the court below erred in admitting as evidence the deposition ofBull & Files; and also in admitting the evidence of the witness, Branch, under the circumstances, and after objection by the plaintiff.
The deposition of Bull & Files, it will be recollected, was objected to on the ground, that it went to prove that they had, at the claimant’s request, paid certain drafts and acceptances against John H. Walker, which drafts and acceptances were not introduced nor exhibited, nor their absence accounted for. , So.the evidence of Branch, a constable, was offered to prove payment of a certain sum of money by the claimant, on some judicial process against said John H. Walker; and his evidence was moved to to be excluded on the ground of immateriality, and that the process was not produced.
The principle on which this evidence was sought to be excluded, is, that you cannot prove the contents of any written contract, or instrument, by parol evidence, unless it is first proven to have been destroyed, or its absence is satisfactorily accounted for. This rule is doubtless salutary, and should be sustained whenever it applies — but there are many exceptions to it. In 1 Phillips on Evidence, 303, it is laid down that “ The general rule, therefore, that the best evidence is to be produced, which the nature of the thing admits, is to, be understood as applying to deeds and agreements, which form part of the issue, or which are material to the issue, &c.”
In the case of Waring v. Warren, [1 Johns., Rep. 340,] it ap*544pears, on the trial, one Gilbert, who was a deputy sheriff, was sworn as a witness, and proved, that in 1798, by virtue of an execution, he took the goods, &c. of one Stephen Nocus, and sold them at auction, at which sale the plaintiff below became the purchaser of the goods, corresponding with the description of those claimed by the plaintiff, and which were specified in a paper produced by the witness. The witness, or sheriff, made a copy from the paper, which contained an account of the articles purchased by the plaintiff, and a receipt, which was delivered to the plaintiff. The witness was then asked what were the contents of that paper ? The defendant’s counsel objected to the evidence, on the ground, that this plaintiff ought to produce the paper itself, or show it to be, lost. The objection was overruled by the court, and the witness permitted to give evidence of what the paper contained. The case went to the Supreme Court of New-York, where it was held, it was not necessary to produce the paper; that it was sufficient for the plaintiff to shew, he had purchased the goods at auction; that it was a paper with which the defendant had nothing to do, and which the plaintiff was not bound to produce.
In the case of Keene v. Meade, [3 Peters, 7 and 8,] a witness proved a payment of $250 for the plaintiff, and stated that the defendant made the entry on the plaintiff’s rough cash book himself, writing his name at full length. The witness fully proved the payment of the money, but the defendant objected to such parol proof as written evidence of the payment existed and should be produced. Mr. Justice Thompson, in delivering the opinion of the court, remarked, among other things: ‘‘This objection we think not well founded. The evidence of the advance made by the defendant himself under the circumstances stated, cannot be .considered better evidence, within the sense and meaning of the rule on that subject, than proof of the actual payment.” Again, he remarked, “ it cannot be laid down as a universal rule, that when written evidence of a fact exists, all parol evidence of the same fact must be excluded. Suppose the defendant had written a letter to the plaintiff, acknowledging the receipt of the money, it certainly could not be pretended, that the production of the letter would be indispensable, and exclude all parol evidence of the advance, and yet it would be written evidence.”
In the case of the administrator of Wiggins v. administrator of *545Pryor, [3. Porter 430,] this doctrine was fully recognized. In that case a witness in deposing to the payment of the amount of anote, spoke of a receipt having been given. It was objected, that parol evidence of the payment could not be given; that the receipt must be produced, or its absence accounted for. But this court held, that there was no error, and fully recognized the competency of the parol evidence of the payment. [See also, 1 Ala. Rep. N. S. 121.]
It may be further remarked in regard to the competency of the parol testimony, referred to,, that it went to establish the mere fact of the payments of money, in the respective cases, and not to prove the contents of the papers which were not in issue, nor material to the issue between the parties. This proof of payment too, was in discharge of so much of the consideration agreed to be given for the property — and it was, besides, in evidence, that the debts thus discharged, by the claimant, were so discharged by the directions of Walker, the grantor.
With these views of the principles applicable to the plaintiff’s third assignment of errors, it cannot be sustained.
4. The fourth assignment raises an objection to the competency of the evidence of one May, a deputy sheriff, who proved that he had levied an execution on the property of Walker, which he produced, and proved the entries thereon were correct. The execution seems to have been given in evidence to prove a lien on the property of said Walker, but seems to have been unaccompanied by any evidence of payment by the claimant, or any other proof to render it relevant; hence, its materiality cannot be perceived.
5. The fifth assignment refers to a part of the bill of exceptions, which shews, that the counsel for the plaintiff called on George Walker, on his cross-examination, to state, in substance, whether, notwithstanding the witness and John II. Walker purported to be securities only, in the note on which this judgment is founded, for J. B. Wilkins, the said John H. Walker had not. in fact, become the principal debtor, in consequence of the transfer of property, notes, &c., to the amount of about $20,000, to meet this and other debts, under an agreement entered into between said parties.
The court excluded this evidence on the objection of the claimant, and we are unable to perceive its relevancy, or materiality. *546It was of no consequence as regarded the liability of John H. Walker, or his property, whether he was originally, or by subsequent agreement, between himself and his co-makers of the note on which the judgment was obtained, a principal or security. As between himself and the plaintiff, he was equally bound, and his property was equally liable to satisfy the execution, whether he was, or had been principal or security.
6. The sixth assignment is predicated on the refusal of the court, to exclude parol evidence, given by J. B. Wilkins, to prove the payment of a certain debt by claimant for said John H. Walker, on the ground that it was a judgment debt, in which Wilkins was principal, and said Walker and others securities. The principles laid down in reference to the third assignment, are equally applicable here — especially in connection with the proof, that all the debts paid by claimant for said John H. Walker, were so discharged by his directions.
7. The seventh assignment refers to a part of the bill of exceptions, which presents no point sufficiently intelligible to be distinctly comprehended.
8. The eighth assignment of error brings in question the opinion of the court, in relation to the testimony of John H. Walker, the grantor of the property, which is the subject of controversy. The question propounded to said Walker was, whether in the contract between himself and said claimant, they intended to defraud the creditors of said Walker? To the admission of such testimony, the plaintiff objected — but the objection was overruled by the court, and the witness was permitted to say to the jury, « no fraud was intended in said contract; that such a thing was never thought of by either.”
The general rule certainly is, that a witness can only depose to such facts as are within his own knowledge, and cannot be supposed to speak upon mere conjecture, or belief, however strong. It is true, there are exceptions, but the evidence in the present case does not fall within any of them. A witness may be permitted to testify to his belief of the identity of a person; or that the hand-writing in question is, or is not, that of a particular individual, provided he has any knowledge of the person or hand-writing. So, on' questions of science, skill or trade, or others of a like kind, persons of skill may not only testify as to facts, but are permitted to give their opinions in evidence. *547£Greenl on Ev. 488, 9, § 440.] But, in the evidence admitted by the court, no fact was stated, which, as it regarded the claimant, could possibly be within the knowledge of the witness. The •evidence of the witness did not go to a fact within his knowledge, but to the intention of another man, which,, however strongly he might be justified in believing to be as stated, he could not know; and the witness testified, not only to the intention, with which the claimant acted, but also, that such a thing as fraud in the transaction, had not been thought of by either the claimant or himself. We are, therefore, of opinion, that the court erred in overruling the plaintiff’s objection to this testimony.
9. The next assignment alleges that the court erred in refusing to instruct the jury, as requested by the plaintiff, in the first instructions moved, and in the contrary instructions given, as stated in the bill of exceptions. On reference to the bill of exceptions, it appears the court was requested to charge the jury, that if, under the terms of the written contract, there was no change of possession, and if no special circumstances were proved, to explain why the possession did not accompany and follow the sale, and the said vendor was then insolvent — then, the failure to transfer the possession was conclusive evidence of fraud, as against the plaintiff in the execution, and the property liable to condemnation.
The court refused so to instruct the jury, but charged them, “ that the above was a circumstance only, from which the jury might infer fraud, unless there were circumstances in evidence, which, in their opinion, were sufficient to outweigh this presumption, in which latter event, they should not so regard them.”
The case of Hobbs v. Bibb, [2 Stewart 54,] decided by this court, some fourteen years ago, may be considered the leading case, as regards the law of this State, applicable to the question before as. Before that case, the question was unsettled, whether we should be governed by the arbitrary rule laid down by the Supreme Court of the United States, in the case of Hamilton v. Russell, that in the case of an absolute sale, possession remaining with the vendor, should amount to fraud per se; or that such possession remaining with the vendor, should only be considered prima facie evidence of fraud. In the case cited, however, after a full and careful examination of the English and American authorities, this court came to the conclusion, and adopted the rule, *548that possession of personal property remaining with the vendor, after such absolute sale, should be presumptive evidence of fraud, but which presumption might be rebutted, or explained away by circumstances. In the case of Ayres v. Moore, [ib. 386,] which came up for adjudication at the ensuing term, the court below charged the jury, “ that if they believed the consideration of the bill of sale was bona fide, and that it was recorded within six months after its execution, it was good and valid in law, though the negro remained in the possession of the vendor, J. B. M., previous to that time.” This court held tire charge to be erroneous, as being founded on two facts, “ not sufficient of themselves to constitute title and remove the presumption of fraud, arising from the possession remaining with the vendor.” This was saying, in effect, that although the consideration might be perfectly fair, and in good faith, and although the bill of sale might be recorded (which is not required by law) — still, if the possession remain with the vendor, the presumption of fraud attaches — something more must be done to remove that presumption. What is sufficient to effectuate that object? We answer, let it be shewn, as in the case of Hobbs v. Bibb, that the property had been purchased for a fair and full consideration, truly paid; that the ne-groes remained with the vendor on hire, which was actually paid, and that the transaction was known publicly. Or, let it be shewn that it was impracticable, or extremely inconvenient, at the time of sale, to change the possession — some reasonable excuse, or satisfactory explanation at least, should be shewn, to rebut the legal presumption, that the right of property is with the possession of a personal chattel.
In the case of Blocker, adm’r v. Burrus, [2 Ala. Rep. N. S. 354,] the court below refused to charge, that possession remaining with the vendor, after an absolute sale, amounted to fraud per se, but charged the jury, “ that if they believed from the evidence, that the transaction was upon fair and sufficient consideration, was bona fide, and not intended to hinder or delay creditors,” they must find for the 'vendee. This was saying, in effect, all that was required by the rule, laid down in the case of Hobbs v. Bibb, though not in the same language; it was requiring the sale to have been fair, in good faith, upon adequate consideration, and all this accompanied by evidence, or circumstances, to rebut the presumption of any inténtion to hinder or delay creditors. *549Such evidence, as that alluded to in the last branch of the charge must have been such facts, or circumstances, as would satisfy a candid mind, that there was a reasonable excuse, for not having changed the possession of the property at the time of sale. No further, or more explicit charge was called for by the opposing counsel; the case was brought up, and this court affirmed the judgment of the court below.
The question recurs — was the charge of the court below, in the case at bar, conformable to the principles thus established? The counsel for the plaintiff, adverting to the terms of the written contract, which was for an absolute sale, called on the court to instruct the jury, that, if there was no change of the possession of the property, and if no special circumstances were proved to explain why the possession did not accompany and follow the sale, and if.they believed that the vendor was then insolvent, then the failure to transfer the possession was conclusive evidence of fraud as against the plaintiff in the execution. These instructions the court refused to give, and, as we think, in that refusal, erred. We have seen that the mere fact, of property remaininig in the possession of the vendor after an absolute sale, is prima facie evidence of fraud — this, of itself unexplained, would be sufficient to authorise a verdict against the vendee. But, when with the facts of an absolute sale, and of the possession remaining unchanged, we connect the additional assumptions, that there were no circumstances to explain why the possession did not accompany and follow the sale, and that the vendor was insolvent, we must consider the evidence of fraud conclusive. It is a well settled principle, that the facts being ascertained, fraud is a question of law. Let us, then, test the question, by supposing the above facts ascertained by evidence, that this was an absolute sale; that the possession remained with the vendor; that he was insolvent, and that there were no special circumstances in evidence, to explain why the possession did not accompany and follow the sale: could we hesitate to say, that in legal contemplation, the evidence of fraud was conclusive?' We think not, and therefore conclude, that the court below erred in refusing the instructions requested by the plaintiff.
We deem it unnecessary to go into the remaining questions raised on the bill of exceptions, considering them sufficiently met *550by the views already presented on the assignment of error, last noticed.
Let the judgment of the court below be reversed and the cause remanded.
COLLIER, C. J.I had supposed Blocker v. Burruss, [2 Ala. Rep. 354] was irreconcileable with Ayres v. Moore, and consequently, dissented from the conclusion which my brother attained. According to my understanding of -it, it determined that the vendee of personal property might repel the presumption of fraud arising from the retention or possession by the vendor, by showing that the sale was bona fide, without any proof of special reasons why the possession did not follow it, and vest in the vendee. But I learn from my brother Ohmond, that such was not the opinion of himself and our late learned associate. However much I might have been disposed to regard Blocker v. Burruss, as authoritative, even as understood by mo, I feel it my duty to adopt the exposition of it which has been given in the opinion of the court; and to add, that I am pleased, that the very general terms in which the law was there .laid down, has been restricted in the present case, so that neither the bench or bar may be misled in future.