Competency of bankrupt. Bankrupt cannot by for a co defendant. creditor, whose claim against the bankrupt is barred by the certificate. (1) Where a bankrupt is one of several defendants in an action, he cannot, by pleading his bankruptcy, be admitted pleading to give evidence for the other defendants, notwithstanding his cerhe has obtained his certificate; for in the event of a verdict tificate, be examined for the plaintiff, he would be liable for costs. Therefore, in an action against a bankrupt and his partner, the bankrupt was held not competent to prove that the goods were sold to such partner only. (2) Neither will a bankrupt, on proof of his certificate in the progress of the trial, be permitted to take a verdict, for the purpose of qualifying him as a witness for his co-defendants. (3) As where he was sued with his other partners on a promissory note, he could not thus be called as a witness to prove an alteration in the note. (4) But where, upon a plea of bankruptcy by one of several defendants, the plaintiff enters a nolle prosequi as to him, the bankrupt is thereby rendered a competent witness for the other defendants. (5) Unless plaintiff enters a nolle prosequi. Bankrupt's wife not competent to support commission. The wife of the bankrupt is no more competent to support the commission than the bankrupt himself, on the well known principle of law, that a perfect unity of interest subsists between husband and wife. And the power, which is given to the commissioners by the 37th section of the new act, to examine the wife as to the discovery of the bankrupt's property, is limited to that express purpose, and to the commissioners alone, and does not extend to render her a competent witness for any other purposes, or before any other tribunal. (6) But in an action of trover by assignees against bankers to recover a promissory note, alleged to have been paid by (1) Moody v. King, 2 B. & C. 558. (2) Raven v. Dunning, 3 Esp. 25. (3) Emmet v. Butler, 7 Taunt. 599. 1 Moore, 322. (4) Currie v. Child, 3 Camp. 285. (5) Moody v. King, suprà; and see 1 Phill. on Evid. 65. 77. (6) And see 2 Phill. Ev. 284. the bankrupt in contemplation of bankruptcy, and on which Compethey claimed a lien, - Lord Kenyon admitted the evidence tency of bankrupt. of the bankrupt's wife, who was called to prove, that it was paid to the bankers in contemplation of bankruptcy thinking that she was an indifferent witness between the parties; inasmuch as if the assignees recovered, the defendants would be then creditors against the bankrupt's estate to the amount of the note. (1) But it seems doubtful whether this decision could, upon strict principle, be supported; for if the assignees succeeded in the action, the general fund would be augmented by the amount of the note; and though the bankers might prove it under the commission, yet, if the bankrupt's estate did not pay 20s. in the pound, the divisible fund would be finally increased by the difference between the amount of the note, and the amount of the dividends which the bankers would receive upon their proof. bank The declarations of the bankrupt made before his bank- Asto bankruptcy, as to the existence of the petitioning creditor's debt, rupt's declarations we have seen (2), are receivable in evidence as an admis- and letters sion of the debt; for the bankrupt then had no interest to before his make such admission; therefore the same objections do ruptcy. not apply to this evidence, as to that given after his bankruptcy in support of the commission. Accordingly the bankrupt may allow his attorney (employed by him before his bankruptcy) to give in evidence privileged communications then made, though offered in proof of the act of bankruptcy. (3) But, in an action brought by the bankrupt against an assignee to try the validity of the commission, any admission of the bankrupt, though made after the bankruptcy, would be evidence against the bankrupt himself. So the bankrupt's declarations at the time of his departing from his dwelling-house, or absenting himself, (1) Jourdaine v. Lefevre, 1 Esp. 66. (2) Ante, 763. (5) Merle v. More, 1 Ry. & M. 390. are (as we have seen (1)) properly received in evidence, as shewing the nature of his absence; though, in strictness, the declaration should accompany the act — or, at least, if not precisely contemporaneous, it should be so connected with it, that the declaration may be properly considered as the result and consequence of the co-existing motives. (2) Thus any letter of the bankrupt written previous to his bankruptcy, and nearly contemporaneous with the act done by him, is admissible in evidence to explain the motives of the act. And in a very recent case at Nisi Prius (which was an action brought by assignees to recover back money paid to a defendant on the ground of a fraudulent preference), -Lord Chief Justice Best acted up to the full extent of this principle, by admitting a letter of the bankrupt in evidence (though written five months before the commission issued) explaining the embarrassed state of his affairs—in order to shew that, when the bankrupt made the particular payment in question to the defendant, he had his bankruptcy then in contemplation. (3) The general rule, however, and the most correct one, appears to be, that the declarations of a bankrupt ought not to be admitted to explain any past transaction, which at the time of making the declaration was completely finished. (4) For to admit such declarations would be, in effect, to receive (as Mr. Phillipps justly observes (5)) an admission by the bankrupt, that he had committed an act of bankruptcy a fact, which the bankrupt himself would not be allowed to prove; and yet it would be much less dangerous to hear the bankrupt's own account upon his oath, than his bare relation to third persons at second hand. (1) Ante, 770. (2) 2 Phill. Ev. 287. (3) Bacon v. Maine, cor. Best C.J. Sittings Guildhall after Trin. (4) Robson v. Kemp, 4 Esp. 253. SECTION VII. Of the Competency of Creditors. support mission, or increase the fund. A creditor of the bankrupt is not a competent witness Not comto increase the fund, out of which he may receive a divi- petent to dend. He cannot, therefore, give any evidence to deprive the comthe bankrupt of his allowance. (1) It was, indeed, held in one case, that a creditor (who had not proved his debt) was competent to support the commission, though not to increase the estate on the ground, that he had no immediate or certain benefit, and that it might be as advantageous for the creditor to be allowed to sue his debtor, as to receive a dividend under the commission. (2) But, as a commission of bankruptcy passes the whole of the bankrupt's estate to the assignees, and appropriates immediately to the satisfaction of his debts what could only be reached remotely and partially by the process of common law, it is, in this respect, a proceeding evidently favourable to the creditors; and therefore in a later case, a creditor (though he had not proved) was not allowed to give evidence in support of the commission, under which he might afterwards prove and receive a dividend. (3) For it is not enough, that the creditor has not availed himself of the commission — it ought to be certain that he never will-in order to render him competent. (4) And Lord Ellenborough, who had formerly been of a different opinion (5), held afterwards, that a creditor, though he had not proved, was yet incompetent to prove an act of bankruptcy (6); for that the commission (1) Shuttlewarth v. Bravo, 1 Str. 507. Egglesham v. Haines, 2 Vin. 11. (2) Williams v. Stevens, 2 Camp. 301.; and see Rex v. Bullock, 1 Taunt. 71., where the Court considered, that the commissioners might receive evidence from a creditor who had not proved. (3) Adams v. Malkin, 3 Camp. (4) Per Lord Eldon, 1 Rose, 392. (6) Crooke v. Edwards, 2 Star. 302. Competency of creditors. Compe tent to defeat the commission. ditor who brought a divisible fund within his reach, and by supporting the commission, the creditor was enlarging his means of satisfaction. But a creditor, it has been ruled, is a competent witness to overthrow the petitioning creditor's debt. (1) And a creditor who has sold his debt, or agreed to sell it, is competent to give evidence either in support of the But a cre- commission, or to increase the fund. For, in this case, the interest which he once had in enlarging the funds no longer exists; and though a debt cannot strictly be assigned at law, yet the assignment will be valid in a court of equity; and after such assignment the creditor is considered merely a trustee for the purchaser, and as ceasing to have any interest in the debt. (2) has sold his debt îs competent. Compe tent to a certain commis sion against members of parliament. In one species of bankruptcy, namely, that committed by members of parliament (3), the act of bankruptcy must extent in necessarily be proved to a certain extent by a creditor; for the party is adjudged by the statute to be a bankrupt, unless within one month after personal service of the summons he shall pay, secure, or compound for his debt to the satisfaction of his creditor, or enter into a bond prescribed by the statute; and the creditor is in ordinary cases, of course, the only person who can prove, that the debt has not been paid, secured, or compounded for to his satisfaction. With reference to these negative circumstances, the evidence of a creditor must (as to this particular act of bankruptcy) be admitted to that extent. But the necessity which exacts this admission, also limits the extent of it; for although he must be admitted to prove what he alone can prove, yet he is not to be allowed to prove what can be established by the evidence of others. The circumstance, therefore, of a bankrupt being a member of parlisment, and a banker, may be derived from other sources, (1) In re Codd, 2 Sch. & Lef. 116. This, however, must be taken with some qualification, for it may be the interest of an execution or a mortgage creditor to upset the commission, in order to confirm his own security. (2) Granger v. Furlong, 2 Bl. 1275. Heath v. Hall, 4 Taunt,326. (3) See ante, 85. |