Sommer v. Sommer, 1 Watts 303

Sommer v. Sommer

1 Watts 303 | Pa. | 1832

Per Curiam.

Had the court awarded a collateral issue, formally, to try the question between the obligee and the other creditors, it is clear the obligor would have been a competent witness. For though it might be inferred, from an intimation in Wolf v. Carothers of his being a witness to sustain the bond because his evidence tends to decrease the fund, that his evidence tends to increase the fund where he is called to disprove the debt; yet it will be found that that consequence does not follow, and that either way he has no interest in the event, whether immediate or remote, certain or contingent. By sustaining the bond, it is admitted that he gains nothing, as the obligee is then to be paid with the rest; and by defeating it it is equally clear that he gains nothing, because, as against all but creditors, the obligee is still to be paid, the judgment standing, good against the obligor and claiming under him, and ready to intercept his effects on their passage to his hands after the other creditors are done with them. In all such cases, the controversy is between the creditors exclusively; for be the judgment fair or foul, it must be satisfied out of the mass of the debtor’s effects, or out of his resulting interest, if any thing remains .after satisfaction of the other creditors. What then is the difference, in this respect, between a collateral issue and that which was tried here ? The judgment was opened so far as to let the creditors into a defence on the merits, in order to show that the bond and warrant was without consideration, and given to delay, hinder and defraud creditors; consequently, for every other purpose it stood good, and especially against the defendant, as regards whom, execution might have issued on it without having it closed, or any other preparatory step being taken, the moment the question of priority was settled among the creditors. This method of trying the question of fraud; by opening the judgment so far as to give the party intended to be defrauded an opportunity of showing the ex*305istence of collusion, is a very common one, and though less technical, it is quite as convenient as a collateral issue, requiring less nicety in the pleading, and serving equally well to inform the conscience of the court in directing the process of execution. It was recognized in Whiting v. Johnson, 11 Serg. & Rawle 328, as being equivalent in all respects to a feigned issue. The consequence is, that the obligor was not a party; and that standing free from interest in every respect, he was a competent witness.

Judgment affirmed.