I concur with the Chief Justice in thinking, that the transactions between Nathan Swan and the defendant, prior to the contract in question, do not evince fraud on creditors. If they have any bearing on the case, they prove, that the deed was riot given without consideration. I also concur in the opinion, that the testimony offered to prove, that the defendant was a young man destitute of property, was properly rejected; and that the court erred in rejecting the defendant’s hooks, purporting to be settled and subscribed by the parties, which afforded a reasonable presumption that the accounts between them were adjusted.
But the plaintiff having induced the court to reject the best evidence the nature of the case admitted of, now complains, that inferior evidence was received, viz. the declarations of the grantor, in the presence of the grantee, at the time and place of making the grant, on the ground that the grantor might have been called as a witness. Whether he was competent or not, it is unnecessary to decide. He certainly was not compellible to testify. Benjamin & al. v. Hathaway, 3 Conn. Rep. 528, Stat. p. 247. 8. tit. 40. s. 2. He was under no obligation to volunteer; nor was the defendant hound to call him. The onus probandi was on the plaintiff. He was bound to prove actual fraud in the grantor, and a participation therein by the defendant; for guilt is never to be presumed. Bridge v. Eggles*149ton, 14 Mass. Rep. 245. 250. Such declarations are always received as will tend to prove a grant bona fide or mala fide—not as mere declarations or hearsay—but as part of the res gesta. Swift’s Ev. 129. Bridge v. Eggleston, 14 Mass. Rep. 245. But, it has been gravely asked, by the plaintiff’s counsel, of what res gesta ? My answer is, the settlement made and making between the parties, and the consideration of the deed. Of the numerous signs and marks of fraud mentioned in the books, (see Twyne’s case, 3 Co. Rep. 80. b.) not one appears in the motion. The grant was not general, but of part only of the grantor’s land. The grantor did not continue in possession. The deed was not made in secret. The consideration was truly expressed. A schedule thereof was made, and the items entered on book adjusted, and subscribed by the parties, in the usual manner, and the result openly declared. There appears no trust between the parties. The deed contained no unusual clauses; but was given, by a father, to a son, to indemnify him for injuries sustained, by undertaking to pay his father’s debts.
I do not advise a new trial.
Brainard and Bristol, Js. were of the same opinion.New trial not to be granted.