The action was based on an averment of the fraudulent character of a sale made under execution, during the War of the Rebellion, when intercourse between the North and South was interrupted. The agent of Mor ris — or rather of the party from whom he afterwards purchased the property, which was transferred to him by quit-claim — had been vested with the title, as his own letters showed, merely to prevent confiscation by the Confederate government, as the property of an alien enemy, the real owner being a Northern firm known as Hook, Frazee & Co. This conveyance had been set aside by the courts of the Confederacy as fraudulent, on the confession of Williams, the agent, him self, and a decree of condemnation was about to be entered when a third party — who afterwards aliened to the Cooper Hill Mining Company, the present defendant — intervened with a claim of previous and bet ter title. This title was based on a judg ment rendered by a justice of the peace against Hook & Co., for a small sum due on account. The judgment had been certified to the county court, and an order to levy on land obtained, under which order there had been a sale to the alienee of the defendant, previous to the beginning of the proceedings for condemnation. On the production of this evidence the confiscation proceedings were discontinued and the pur chaser under the execution, by himself and his assigns, had been in peaceable possession until the beginning of the present action. My client's action was based upon the hypothesis that this sale under execution was procured by collusion between Williams, the agent of Hook & Co., the former own ers, and Azariah Cooper; the purpose on the part of Williams being to protect his principals and prevent the loss of the prop erty by confiscation. This hypothesis had a strong show of probability, but was difficult to establish, since the agent, Williams, had died during the progress of the war and left no written memorandum of the transaction
as far as we had been able to discover. The other party, finding himself in posses sion of a valuable property, had not been slow to appreciate the advantages of his position and stoutly insisted upon his right to hold it. The only hope of evidence to set aside the transfer lay in the testimony of one Garner, who had been a clerk at the mine and was supposed to have heard dec larations of Williams in regard to the mat ter, and to be able to show that the agent had funds of his principals in hand amply sufficient to discharge the judgment on which the defendant's title rested. Thus far Ga/ner had refused to make any statement, and his employment, after the present action was begun, by the defendant as bookkeeper at the mine, gave little hope that his testi mony would be favorable to my client. However, there were scraps of evidence supporting our claim, and I had consider able confidence in my capacity as a crossexaminer to impair the testimony of Cooper, who, it was certain, would have to testify in support of the proceeding under which he claimed title. Affairs were in this condition when, the week before the Fall Term of the court, Mr. Morris came south at my suggestion to confer in regard to the trial. There had been a rupture between the defendant cor poration and Garner, and he had been to see me, uttering vague threats as to what he might be able to do, but making no definite statement as to the nature of his testimony. Without offering him pecuniary inducement, I had dwelt on my client's wealth and wellknown liberality and Cooper's niggardliness, in the hope of widening the breach and in clining Garner to tell what I firmly believed to be the truth in regard to the sale of this valuable property for a debt of less than two hundred dollars. I thought he was in a hopeful condition, and that it was our policy to force a trial before the Cooper Hill peo ple could come to terms with him. This information, I, of course, communicated to
