13 Ga. 302 | Ga. | 1853
By the Court.
delivering the opinion.
This would be a small case were it not that the personal liberty of the citizen is concerned.
“Schedule of J. D. Dickerson.
2 drafts of the County Treasurer,.,....................$11.50.
Filed in office 11th February, 1853.
A. B. ROSS, Clerk.”
Two objections are alleged against- the schedule: First, that it is without date; and, secondly, that it does not state the case.
There is no form prescribed by the Act, in which the schedule of an insolvent debtor shall bo made out.
I will not undertake to examine as to the nature of the interest which will disqualify a witness, or attempt to reconcile the conflicting authorities upon this rule of evidence. This position, however, we think to bo well settled, namely, that a party is an incompetent witness to increase a fund out of which he is to receive a dividend ; more especially, if as in this case, the witness is the creditor of a bankrupt who has already been discharged from arrest under a capias, at the instance of the witness, and where too, it would seem, his only hope of getting paid is by fixing a fraud upon the debtor by his owrn testimony. But lot it be remembered, that no proposition was made to render Johnson competent by releasing to the other creditors all claim to the fund, which might, -by his evidence, be made subject to Dickerson’s debts.
When Johnson was the plaintiff, in October, 1852, and was excluded from testifying because a party, the issue of fraud tendered by him was found for Dickerson. And now, when he is excluded on the ground of interest in the event of the suit, the same result has followed. If Dickerson is to be deprived of his liberty for life, therefore, I have a right to assume that it is to be upon the evidence of this judgment creditor. To authorize such a procedure, when the Constitution of the State declares, that the person of a debtor, where there
I am the last man that would interpose between credi-. tor and debtor, or that would give to the debtor new means and new motives for defrauding his creditor. I am far from denying that some coercive power is necessary to compel men to perform their engagements, who are able but unwilling; and to force real insolvents to disclose the state of their affairs, and to surrender their effects. I admit that the fraudulent insolvent is a criminal who deserves punishment; and that in moral turpitude, at least, there is little difference between the man who swindles his honest creditor out of his money and the thief who steals a purse. But if the debtor is guilty of fraud, let him be tried and punished upon legal proof; let not the creditor be the witness to establish his guilt, nor'the judge to inflict the punishment.
So far from a strong presumption of .fraud, the conclusion from two concurrent verdicts is almost irresistible, that the surrender is bona fide. And why, I would inquire, urge the admission of an interested witness to prove a transfer of property made by the debtor to be fraudulent. Is not the property liable ? And does Dickerson’s failure to include it in his inventory exempt it from liability ?. Neither its exclusion -or its inclusion could have the slightest effect upon the validity of the transfer. The property is still subject to levy, at the instance of the Mayor and Council, or Johnson, or any other judgment creditor. Even a discharge under the National Bankrupt Act of 1842, which released the property as well as the person of the debtor, and which was indeed an ex-tinguishment of the debt,''did not protect property which had been fraudulently conveyed by the bankrupt.
The issue authorized to be formed, under the insolvent laws of this State, is to compel a disclosure of concealed effects, and not,to try the title to property in the hands of third persons.
Judgment affirmed.