Boyer v. Kendall

The opinion of the coui’t was delivered by Rogers, J. Every creditor has an interest more or less to increase the funds of his debtor, as it adds to the security of his debt, and yet there is no doubt that a creditor is a witness either for the debtor himself or his personal representatives. It has been decided in 12 Mod. 385. Crow v. Brown, “ That a legatee may be admitted to prove assets in the hands of the executor, in a suit [179] by a creditor.” And in that case it is conceded that one creditor may be admitted to prove assets in an action by another creditor. Miller does not acknowledge any expectation that he will be bettered by the,fate'of the cause, nor does he say that he believes that the payment of his debt, depends upon the event of the suit, so as to bring the case within the principle decided in Innis v. Miller, 2 Dall. 50. All he states is, “that he is a creditor for twenty dollars, — that the estate is not sufficient to pay the debts — and that if Boyer establishes his claim, the estate will not be sufficient to pay all claims unless there is more property than he knows of.” If Miller be incompetent, it must be because they have brought him within the exception to the rule, that a creditor shall not be excluded from giving testimony, as such. This exception should not depend upon evidence, which in its nature is uncertain, and which would lead to an inquiry expensive and dilatory. Indeed in many cases it would be impossible to ascertain the situation of1 the estate, until final settlement. Let the exception then, be rather to his credit than his competency. The jury under the direction of the court will be fully able, under the circumstances of each case, to do justice to the parties. In general, the creditor of a deceased person may be a witness although his testimony tends to increase the estate of the deceased. 3 Serg. & Rawle, 427. The exceptions to the rule are cases of bankruptcy or notorious insolvency, such as a voluntary assignment for the benefit of creditors or a discharge under the act for. the relief of insolvent debtors. In those cases he is excluded, because he has a legal fixed interest in the event of the suit, his testimony, going directly to increase the divisible fund of the bankrupt or insolvent. Judgment affirmed.