
    
      Thomas Clerry vs. Joshua A. Spears.
    
    1. A contingent remainder is included in the description of estate, property and effects, mentioned in the Prison Bounds Act of 1788, and an omission to include such an interest in a prisoner’s schedule is within the penalties of that Act.
    2. A judgment creditor of the petitioner for the Prison Bounds Act, in behalf of the actors in the suggestion of fraud, is not a competent witness.
    
      Before J. B. McLaurin, Magistrate, acting as Commissioner of Special Bail for Sumter District.
    
    Application for the benefit of the Prison Bounds Act.
    The defendant being under arrest, applied for the benefit of the Prison Bounds Act, and his discharge was resisted by the plaintiff, on various grounds. A suggestion was filed, February 3,1843, and a jury summoned conformably to the Act of 1833, to attend at Sumter Court House on the 14th February, 1843. A jury was organized, and on account of the absence of a witness for defendant, whose materiality was sworn to, the cause was postponed till February 16th 1842, at which time it came on to be heard.
    The fifth ground in the suggestion was, “because the said Joshua A. Spears has not inserted in his schedule the contingent interest in remainder, which he has in the following negroes and their increase, (naming them) which were bequeathed by the second clause of the will of Obadiah Spears to him, in trust for Henry Spears, for life, and in the event of his dying without leaving alive any child or children, then to be equally divided between the other children of the said testator, or the survivors of them.
    Certain witnesses were called by the plaintiff, and objected to by the defendant, as incompetent, on the ground that they were judgment creditors of the defendant. The objection was sustained by the Commissioner.
    There were eleven grounds in the suggestion, and a great deal of testimony offered before the Commissioner, which, not being at all material to the understanding of the points decided by the court, is here omitted. The jury returned the following verdict. “ We find the defendant, Joshua A. Spears, not guilty.”
    
      The plaintiff appealed, on the following, amongst other grounds, and moved the Court of Appeals for a new trial.
    1. Because the Commissioner of Special Bail refused to permit the plaintiff to examine certain persons, (named) as witnesses in his behalf, upon the ground that they are creditors of the defendant; whereas, it is submitted, that they not being parties resisting defendant’s application, were competent witnesses. Also,
    2. Because it appeared that the said defendant was also entitled to a contingent interest in remainder, in the negroes, Caleb, Hiram and Ellen, under the second clause of the will of Obadiah Spears, which was not rendered in his schedule, and, therefore, it was fraudulent in that respect.
    The other grounds of appeal, chiefly involve the sufficiency of the proof before the Commissioner, but the above present the questions upon which the judgment of the court is pronounced.
    
      W. F. FeSaussure, for the motion. Richardson, contra.
    
      
       “Secondly. I give and bequeath to my son, Joshua A. Spears, the following negroes, to wit: Caleb, Hiram, the elder, and Ellen, to him, his executors and administrators, in trust, however, that he will manage the said negroes to the best advantage to his discretion, and pay over to my son Henry, the proceeds and profits of their labor, or if, in his opinion, advantageous to the said Henry, permit him to have the use of the said negroes, or to receive the proceeds and profits of their labor, at the discretion of my said son, Joshua A. Spears, for and during his life; and after his death, the said negroes and their increase, to be equally divided between such child or children, as he/haay leave alive at his death; but should my son Henry die without leaving any child or children alive at his death, the said negroes and their'increase, to be equally divided between my other children or the ur.s Ivors of them.”
    
   Caria, per

Frost, J.

Only two questions of law are presented by the grounds of appeal in this case, and since the decision of the court results in a new trial, it is unnecessary to express any opinion on those grounds which involve the sufficiency of proof.

The .sixth ground is, that the defendant is guilty of fraud, in not having inserted in his schedule a contingent interest in remainder in the slaves, Caleb, Hiram and Ellen, to which he was entitled under the second clause of the will of Obadiah Spears. The clause referred to bequeaths the negroes to the defendant, Joshua A. Spears, his executors, <fce. in trust to manage the said slaves, and pay over to testator’s son Henry, the profits of their labor; or if, in his opinion, advantageous to Henry, to permit Henry to receive the profits, or have the use of said slaves during his natural life; and after the death of Henry, the said negroes and their increase to be equally divided between such child or children as he may leave alive at his death; but should Henry die without leaving any child or children alive at his death, the said negroes and their increase, to be equally divided between testator’s other children, or the survivors of them. The defendant is a son of the testator, who also left other children.

Contingent interests, by executory devise or remainder, whether in real or personal property, are transmissible to the representatives of the legatee or devisee, and will vest in such representatives when the contingency does happen. Fearne Rem. 552. They are devisable, (Jones vs. Roe, 3 D. &. E. 95,) and assignable in equity. Fearne Rem. 548. The case of Jones vs. /toe, affords authority to affirm that such interests are assignable at law ; but that was not the point decided. It is not, however, necessary for the decision of this case, to establish a common law power to assign a contingent interest in real or personal property. The Act of 1788 provides, that any prisoner, confined on mesne process, shall have liberty to render a schedule of his or her “whole estate,” or so much thereof as will pay and satisfy the sum for which he is confined; and if no cause be shewn against his discharge, the Judge or Commissioner shall order an assignment of the prisoner’s “estate and effects mentioned in the schedule,” to be made to the plaintiff; whereupon, the creditor shall take possession, and if necessary, sue in his own name for the recovery thereof. The property mentioned in the schedule, must be visible preperty, if the prisoner is possessed of any such, but if not, choses in action must be mentis (as more readily convertible into money, and more beneficial to the creditor;) and if the property mentioned in the schedule should prove deficient, “any other property the prisoner may have,’’shall be liable for the demand for which he is confined. The 10th sec. provides, that if any person shall deliver in a “false schedule of his effects,” he shall suffer the penalties of perjury, and be disabled from taking the benefit of the Act thereafter. The terms “whole estate,” “property” and “effects,” are as comprehensive terms as can be used. In a residuary bequest, they would certainly pass a contingent interest. Words should be construed as liberally to effect the intention of the Legislature, as of a testator. The intention and policy of the Legislature seems very clear, that a debtor shall not be discharged of his debt, or from any process for its recovery, except by a transfer to his creditors of all his available means. By the insolvent debtor’s Act, which is construed in pari materia with the prison bounds Act, only wearing apparel, tools, and necessary bedding for his family, can be retained by the debtor, with the assent of the Judge. Under a power to the Commissioner in Bankruptcy, over all such interest in lands “as the bankrupt may lawfully depart withal,” it has been determined that a contingent interest is assignable. Eden on Bank. 227 ; 3 Pr. Wms. 132. The objection that a contingent interest is not assignable at law, seems particularly applicable to this case, and yet the intention and policy of the Act prevailed over the objection. If, then, the terms of the Act include a contingent remainder, and require such an interest to be included in the schedule, it is assignable by forcé of the Act, which directs all the property, estate and effects, mentioned in the schedule, or so much thereof as may be necessary, to be assigned by the petitioner to the creditor, who is empowered to sue therefor in his own name. A contingent remainder is included in the description of estate, property and effects, and the omission to include such an interest in the prisoner’s schedule, is within the penalties of the Act. For error in the judgment of the Commissioner on this point, a new trial must be granted.

The l.st ground of appeal presents the question of the competency. of the judgment creditor of a petitioner for the prison bounds Act, as a witness in behalf of the actors in the suggestion of fraud. In 2 Stark. Ev. 744, the rule is stated to be, “that the interest to disqualify, must be some certain legal and immediate interest, however minute, in the result of the cause, or in the record, as an instrument of evidenceand at page 747, it is added, “ a witness is also interested, if the record would be the instrument of securing to him some advantage, or repelling some charge or claim upon him, in a future proceeding.” In Jones vs. McNeil, 2 Bail. 472, the rules cited from Starkie are quoted and expressly recognized, and the question of competency, in that case, decided on the ground of the witness’s interest in the record as an instrument of evidence. Forretier vs. The attaching creditors of Guerrineau, 1 M’C. 304, was an issue to try the truth of a return, in which the garnishee, claiming, as his own property, certain goods attached and seized by the sheriff, was the plaintiff, and the attaching creditors defendants. It was decided that one of the original defendants, an attaching creditor, was not a competent witness, even though he had assigned his judgment against the absent debtor to a third person, and had taken a release from the assignee of all reclamation, and his name had been struck from the record. Nott, J. concludes the judgment of the court, by defining “the true test of interest to be, whether the judgment in the case in which the party is called to testify, can be given in evidénce for or against him in another case.” In this case, the record of conviction of the defendant, would be evidence for the witnesses, on the arrest of the defendant at their suit, and his application for a discharge under either of the insolvent Acts. The probability or improbability of the occasion arising from the use of the record, as evidence, or the minuteness of the interest to be served by the use of it, does not affect the question of competency. But that á creditor will pursue all means for the recovery of his judgment, is not liable to the objection of being a remote contingency ; nor the interest which he has in the use of the process against the person of his debtor, as a means of coercing satisfaction, too minute to be recognized by the law. In the present state of society, when so large an amount of property consists in securities which cannot be reached by a ft. fa. and are, by so many means, easily secreted from the demands of creditors, a ca. sa. by which, under pain of imprisonment, a fraudulent debtor may be compelled to make a full disclosure and surrender of all his effects for the satisfaction of his debts, is an indispensible process for the recovery of them. The value and importance of a conviction of fraud to creditors, by giving greater efficacy to this process, as a means of coercing payment from the debtor, or from the sympathy of his friends, is practically illustrated by the zeal and activity with which a suggestion of fraud is prosecuted. A dispensation in favor of the creditor from the operation of the laws enacted for the relief and discharge of the debtor, perpetuating the creditor’s claim, and giving him an unlimited power over the liberty of the debtor, is such an interest in a record, as an instrument of evidence for that purpose in favor of the creditor, as the law will recognize, to render him an incompetent witness in the issue. The judgment of the Commissioner, on this point, is affirmed.

O’JNTeall, Evans and Butler, JJ. concurred.

Wardlaw, J.

I assent to the new trial, but dissent from the opinion expressed as to the competency of witnesses.

Richardson, J.

I concur in ordering a new trial, for the reasons stated in the decision of the court, by Judge Frost. But cannot acquiesce in the rejection of the creditors, as incompetent witnesses against the defendant. The defendant was confined under the Prison Bounds Act. The assignment to be made, was for the payment of Clerry exclusively. The creditors had no interest in augmenting, but rather an interest in keeping back, the estate of Spears, to meet their own demands. They had as little interest, either in degrading the character of Spears, by convicting him of a fraud, or in procuring his permanent imprisonment. Neither of these consequences could increase the probability of the creditors being themselves paid. On the contrary, his loss of character and imprisonment, diminished their prospects of payment not a little.

In civilized society, creditors have a considerable fund for payment, in the good name and unfettered industry of their debtors, and, of course, to prevent their imprisonment; and no interest in unjust punishment whatever. The creditors were, therefore, called to swear, not for, but against, their interest. The best practical illustration, is in the analogy of the Prison Bounds Act to the Bankrupt Laws. In either, the object is to discharge the applicant. But in such systems, a creditor is a competent witness, in general. See title “ Evidence” — “ Bankruptcy” — Stephens’s N. P. 755. A fortiori, then, in such a case as the present, and until an exception is proved. But the decision assumes the converse. It must be always borne in mind, as the principle of our judgment in such cases, that the evidence cannot fix a title to any disputed property in the debtor. It does not take the property from another claimant. It is ex parte as to all persons but the plaintiff and defendant; and merely goes to charge fraud or concealment against the defendant, for which he is to be punished personally, by the letter of the Act. The rejection, therefore, of the creditors, has no legal ground known in the laws of evidence.

Wardlaw, J. concurred.  