
    Yeakle, Cobb & Co., and others, vs. J. J. George.
    
      Insolvent Debtors’ Act — Evidence—Witness. '■
    
    Upon dissolution of tlie firm of R. & G., G. released R. from all liability to pay the uotes of the firm, and R. released to G. his interest in the goods and choses of the firm. Judgments were recovered against the firm, and G. applied for the benefit of the Insolvent Debtors’ Act:— Held, that R. was an incompetent witness for the creditors of the firm, upon the trial of a suggestion charging G. with having rendered a false schedule, and with fraud.
    That the description of property in a schedule is vague and uncertain, is no ground for opposing the applicant's discharge under the Insolvent Debtor’s Act, unless he shall refuse to amend his schedule upon .being required so to do.
    BEFORE GLOVER, J., AT MARION, SPRING TERM, 1859.
    The report of his Honor, the presiding Judge, is as follows:
    “ The defendant having been arrested on writs of capias ad satisfaciendum at the suit of sundry judgment creditors, applied for the benefit of the Insolvent Debtors’ Act. His application for a discharge was resisted on several grounds, and, on filing suggestions, issues' were presented, charging that the petitioner had neglected to insert in his schedule certain property and large sums of money; that he had fraudulently conveyed a tract of land to his father; that the description of his property inserted in his schedule was vague and uncertain, with other specifications not necessary to be noticed, and on which issue was taken.
    “ The jury found for the defendant on all the charges and specifications, and the plaintiffs, on several grounds', have given notice that they will move for a new trial.
    “The case will be understood by a report of so much of the evidence as may be necessary to explain the grounds of appeal in the order in which they are set down.
    
      “ 1. In all the cases on which the defendant was arrested— except the case of Chaffee, S't. Amand & Co. — the causes of action were debts due by the firm of George & Eice. The 4th April, 1854, J. J. George released Eice ‘ from all liabilities, demands and obligations, of the notes given for goods bought in Baltimore and Charleston for'the firm of George & Eice, in consideration whereof the said Eice released all his claims upon the remaining stock of goods on hand at New Prospect, together with the books, notes and accounts.’ It was insisted that if Eice was an incompetent witness, because he was jointly liable with George, yet that the above release restored his competency, and that his evidence, taken by commission, was admissible. I ruled otherwise.
    “ 2. The only real estate mentioned in the schedule, was 1 a tract of land containing half an acre.’ This description is vague, and does not furnish those marks of identity by which the land may be ascertained ; but it was proved that the defendant lived on this lot — that he had built on it a dwelling-house, warehouse and outbuildings, worth about $700 or $800; and it appeared to the Circuit Judge that where the defective description was not the result of fraudulent intention, and could be aided and made certain by evidence aliunde, it would not deprive the applicant of the benefit of the Act.
    
      “ 3. Several books were produced by the defendant, and' were in Court, embracing the mercantile business of the firm of George & Eice, which were submitted to the inspection of the jury. From a hasty and imperfect examination, aided, however, by the evidence of witnesses, it appeared that cotton was purchased at various times, and that some of the proceeds of the sales were credited to the vendors, who were debtors of George & Eice, which might lead to the further inquiry, what was the disposition of the income derived from the sales of merchandise ? This will be answered in the next ground of appeal, which substantially presents the question.
    “4. About 1851 the defendant, then embarrassed, com- . menced a mercantile business on his own account, with no means except a very inconsiderable personal property, and a tract of land containing two hundred and three acres, which he had purchased of his father in 1850, in consideration of $200, for which he gave two promissory notes that- were never paid, but were discounted, when, in 1854, he re-conveyed the same land to his father. In 1853 and 1854, the defendant built a gin-house and screw, worth about $400 or $500, and a dwelling-house, store and outbuildings, worth from $600 to $1,000. He also bought three or four horses, a majority of which had died before 1855. In 1853 he paid in satisfaction of a debt due to Johnson, Crewes and Brawley, $1,100 or $1,200, being the proceeds of notes due to him before his copartnership with Rice commenced .in 1853. It also appeared that he had paid other individual debts, and supported his wife and three children, seldom making from his little farm provisions for the support of his family. Add to this the expenses incident to his military position — colonel of the militia. Such were his worldly prospects when, in 1853, he united his fortunes with Rice, and contracted in Baltimore and Charleston, on the credit of the firm, debts amounting to upwards of $3,000, which went into judgment, and on which the defendant was arrested, and from which he is seeking a discharge in this case under the Insolvent Debt- or’s Act.
    “ The firm of George & Rice continued about a year, and the latter, whose visible means seemed, no greater than his partner’s, soon after left the State, and now lives abroad. After Rice left, George continued to retail until October, 1855, when the sheriff sold the remnant. It is very probable that from the proceeds of the sale of the goods purchased in Baltimore and Charleston, the defendant paid other debtors —that he supported his family, built houses, bought horses,' &c.; but whether this-was done fraudulently — to prefer one creditor unduly to another — did not appear, and was a question for the jury. It was, perhaps, one among too many instances which have occurred, of mercantile firms established without capital, skill or experience, and, except from home, with very limited credit.
    “ 5. William George conveyed to defendant, his son, December 11, 1850, a tract of land containing two hundred and three acres, in consideration of $200, for which two promissory notes were given. The 28th February, 1854, defendant re-conveyed said land to his father, William George, for $1,000(' and it appeared from William George’s evidence, that the consideration — $1,000—was paid as follows: Defendant’s two notes given in 1850, when he bought the land, and still unpaid; $200 in money, one'year’s rent for the land, three promissory notes (in the schedule), dated in 1854, 'and payable January, 1858, 1859, and 1860, and each for $100. Whether in all this there was fraud, was a question which I submitted to the decision of the jury. It did not appear to the Circuit Judge that the sale of land by a son to his father, under the circumstances proved in this case, was per se fraudulent. The consideration seemed to have been sufficient, and five-fold greater than the defendant had given four years before, and the fact that defendant continued in possession after the sale, as his father’s tenant, was not a-conclusive badge of fraud.
    “ 6. After the defendant had conveyed the land mentioned in the last ground of appeal to William George, his father, the sheriff sold it by virtue of an execution against William George, and at this sale, in March, 1856, Warren Jackson was the purchaser for $139 32. This sale was fairly conducted, and although the price was less than the value of the land, it appeared that, about that time, property was often sacrificed at sheriff’s sales, and that sometimes no bid could be obtained. Warren Jackson, on his death-bed, conveyed this tract to defendant’s children, who were his grandchildren ; and in all this there was no proof of fraud practiced or intended by the parties, unless it may be inferred from the relation in which they stood to each other.”
    The plaintiffs appealed, and now moved this Court for a new trial on the grounds:
    1.Because the presiding Judge excluded the testimony of William B. Bice,.a witness examined by commission, when it is submitted that such ruling was erroneous.
    2. Because, by the terms of the Acts of the Legislature, it was necessary that the deeds to land be mentioned, and the only description in defendant’s schedule in these words, “a tract of land containing half an acre,” was not such a description as required by the Act; no title-deeds being referred to in said schedule, and therefore it was indefinite; and his Honor should have so charged the jury.
    3. Because there was no proof of the disposition of the proceeds of sixty-one bales of cotton, proven by books of defendant to have been bought in Fall of 1853 ; and this was sufficient evidence of fraud and false schedule.
    4. Because the only proof of payments, by George, since the notes of relators, amounting to over $3,000, became due, was the sum of $100 by sale of house and, lot by sheriff, and which with all improvements did not, by estimate of any witness, cost exceeding $751; and there was no proof of any other payment; the proof being that the gin-house was built before these goods were bought, to wit, in 1853; and all proof of payment by George, of old debts, was also prior to purchase of goods from relators, to wit, in 1852 and 1853, and from his own funds derived otherwise; and there was no proof as to disposition of the goods or proceeds thereof to amount over $3,000, and that was. evidence of fraud in schedule; and his Honor should have so charged the jury.
    5. Because there was no proof that the consideration of $1,000, expressed in the deed of defendant to William George, of 28th February, 1854, was ever paid, and the proof was to the contrary, and this, together with continued possession of said land by defendant, was itself an evidence of fraud; and his Honor should have so charged the jury.
    6. Because the whole circumstances attending the conveyance of J. J. George to William George, of the tract of two hundred and three acres of land, and the subsequent sale to Warren Jackson, defendant’s father-in-law, and his conveyance to George’s infant children, were conclusive of fraud, and his Honor should have so charged the jury.
    8. Because the verdict was against the law and the weight of the testimony.
    
      Phillips, for appellant,
    cited on first ground, 1 Green. Ev. Sect, 386, 387, 389, 390, 408 ; 1 Gilbert, Ev. by Lofft, 225 ; 1 Starkie, 102 ; Bac. Abr. Title Evidence, pp. 488, 489; Buller’s N. P., 284; Bent vs. Baker, 3 T. B. 27; Smith vs. Prager, 7 T. B. 72 ; Doe vs. Tyler, 6 Bing. 390; Ridley vs. Taylor, 13 East., 175 ; Rex vs. Boston, 4 East., 581; York vs. Blott, 5 M. & S., 71; Wilcox vs. Farrell, 1 H. Lords’ Cases, 93; Stewart vs. Kip, 5 Johns. B. 56 ; Van Nuys vs. Terhune, 3 Johns. Oas., 82; Fvans vs. Fvans, 7 Wheat. 356, 424; Fvans vs. Hettrich, 7 Wheat. 353; State vs. Anthony, 1 McO. 285 ; Spann vs. Ballard., Rice, 442 ; Ex parte Hinton, 3 Rich. 97; Leach vs. Kennedy, 3 Strob. 488; Gorrie vs. Colder, 6 Rich. 198; Bice vs. Gregory, 4 McO. 261; Ootchett vs. Dixon, 4 McC., 311; Kendrick vs. Gampbell, 1 Bail., 522.
    On the second ground, 1st sect, of Act of 1759 4 Stat. 87; 5th sect, of Act, 1788, 5 Stat., 79.
    On the fifth and sixth grounds, Hyams vs. Valentine, 4 Strob., 425; Gray vs. Schroeder, 2 Strob., 126; Ingram vs. Phillips, 5 Strob., 205; Smith vs. Henry, 2 Bail., 118 ; 3 Rep. 81; 5 Taunt. 212; 2 Buis., 226; 2 Vermont, 510; 1 Ves., 245; 2 T. R. 587; Rich. Eq. Oas., 410 ; 1 Hill, 288; 2 Bail., 324 ; 10 Rich., 34.
    
      Sellers, Inglis, contra,
    cited 1 Bail., 362; 3 Phil. Ev. 45, 51, note, 633; 32 Eng. C. L. R. 426 ; 11 Eng. C. L. R. 380; 19 Eng. O. L. R. 85, 277 ; 2 Hill, 445 ; 1 Rich., 268 ; 10 Cow., 280; 8 Wend., 542; 2 Wash. C. C. R. 388; Glerry vs. Spears, 2 Sp. 690.
   The opinion of the Court was delivered by

Glover, J.

The defendant having been arrested on writs of capias ad satisfaciendum, at the suits of sundry judgment creditors, applied for the benefit of the Insolvent Debtors’ Act. This application was resisted, and on filing suggestions by the creditors, several issues were presented. In all the cases on which be had been arrested, except one, the causes of action were debts due by the mercantile firm of George & Rice, of which the defendant was a partner, and the judgments were recovered against the firm. On the dissolution of the copartnership the defendant released Rice from all liabilities, demands and obligations of the notes given for goods bought, for the firm of George & Rice, in consideration whereof, Rice released all his claims upon the remaining stock of goods on hand, together with the books, notes and accounts. On the trial of the issues made by the suggestions, Bice’s evidence, taken by commission, was offered by the creditors, and an objection to its admission was sustained on the ground, that Bice was interested in the result of the issues and was, therefore, an incompetent witness; and the correctness of this ruling is the only point made by the appeal upon which this Court entertains any doubt.

We recognize the familiar rules referred to In the argument that the interest must be direct and not remote — that it must be limited to the result of the suit and not a mere interest in the question, &c. We know too, that there is a strong public opinion opposed to the exclusion of a witness on account of his interest in the event of the action, which regards the rule unsound in theory, and inconsistent in practice ; and this Court has, as far as it may be judicially done, relaxed the strict rule of exclusion; but its abrogation must depend on legislative action. We conform to an established principle in ascertaining a witness’s competency when it is tested by the inquiry, whether the proceedings would be the instrument of securing to him some advantage, or repelling some charge or claim upon him in some future proceeding; or whether there will be a certain benefit or disadvantage to the witness attending the consequence of the cause one way. (1 Gilb. Ev. 225,) As a partner Bice is jointly liable with George to all the partnership creditors — some of whom are parties to these proceedings — and as a co-defendant he is liable on the judgments. If, however, George have the means, or can be compelled, to pay all the debts of the firm, his covenant"with Bice releases the latter from all liability. He is interested then to increase the amount of property which the defendant may return in his schedule, if it shall be insufficient to pay all the creditors ; as from that source payment must be made and his liability discharged. Should this fail, his last hope is the defendant’s conviction for fraud : the consequence of which would be either perpetual imprisonment, or the satisfaction of the debts, and to avoid the former, more than ordinary exertions would be employed to accomplish the latter. Another result following the defendant’s conviction would be a breach of the condition of his bond for the prison rules; and, in that event, his bail would become additional sureties for the payment of the partnership debts. A'gain, should Eice be compelled to pay these debts, he could recover damages to that extent against the defendant for a breach of his covenant to indemnify him against them; but it would be a barren recovery unless the defendant be convicted on some of these issues, and Eice be thereby enabled, when George is taken in execution, to use the record of his conviction, in this case, in terrorem, and compel him to choose.between the alternatives of unlimited imprisonment and payment.

In these proceedings Eice has a two-fold interest. 1. To increase a fund by which his own liability would be discharged. 2. To convict the defendant of the acts of fraud alleged and thereby coerce the payment of the partnership debts under the penalty of perpetual imprisonment. In either result he was directly interested; and, as a witness, was incompetent. This Court has 'decided that a judgment credit r of a petitioner for the Prison Bounds Act, is an incompetent witness in behalf of the actors in the suggestion of fraud; (Clerry vs. Spears, 2 Speer’s R. 686,) and in answer to the objection that the interest is. too remote and minute, the Court replied, “ that a 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.” The interest of Eice is not more remote or minute than that of a judgment creditor who is no party to an issue of fraud under the Prison Bounds Act, and who can have no other interest in the record than its use, on the debtor’s conviction, to prevent his discharge when he shall afterwards take his body in execution.

Another ground relied upon, is that the description of a lot • of land mentioned in the schedule is too indefinite. The description is vague and does no.t identify the 'property; but of itself it is not a valid objection to the prisoner’s discharge, unless he shall refuse to amend his schedule and give more certainty to the description, when ordered to do so.

The other grounds complain of the conclusions of the jury on questions of fact submitted to them with proper instructions, and no sufficient reason appears to disturb their verdict.

Motion dismissed.

O’Neall, Wardlaw, and Munro, JJ., concurred.

Motion dismissed.  