Colombine against Penhall and Another
| Jurisdiction | England & Wales |
| Judgment Date | 26 February 1850 |
| Date | 26 February 1850 |
| Court | Court of the Queen's Bench |
English Reports Citation: 116 E.R. 1212
QUEEN'S BENCH
1212 COLOMBINB V. PENH ALL 15Q.B.129. The following case may conveniently be introduced here. coiotbine against penhall and another. [Tuesday, February 26th, 1850.] In an action brought against assignees in bankruptcy to try the validity of the fiat, creditors of the bankrupt, whether they have or have not proved, are competent witnesses in support of the fiat, by stat. 6 & 7 Viet. c. 85, s. 1. Assumpsit for money bad and received. Plea: non assumpait. Issue thereon. On the trial, before Lord Denman C.J., at the sittings in Middlesex after Hilary term, 1849, it appeared that the action was brought, under an order of Bruce V.-C., [129} to try the validity of a fiat in bankruptcy against the plaintiff. The defendants were the assignees. Notice was given of plaintiff's intention to dispute the petitioning creditor's debt, trading and act of bankruptcy. The defendants called witnesses to the trading who were creditors of the plaintiff, and one of whom had proved against the estate (a)1. They were objected to as incompetent by reason of interest: but stat. 6 & 7 Viet. c. 85, s. 1 (5) was cited in answer; and the Lord Chief Justice permitted them to be examined. Verdict for defendants. Sir J. Jervis, Attorney General, in the ensuing Easter term, moved for a new trial on account of the reception of this evidence. He cited Belcher v. Brake (2 Car. & K. 658X where Wilde C.J., in an action by assignees, rejected a creditor called on behalf of tne plaintiffs, saying: " A creditor under the fiat must be considered ' a person on whose immediate and individual behalf the action has been brought; he is therefore not rendered competent by that Act" (6 & 7 Viet. c. 85): also Clarke v. Sett (12 Jurist, 421). A rule nisi was granted. In Hilary term, 1850 (e), Chambers, Bagley and Lush shewed cause. First, even before the late Act, this evidence would have been admissible. In Williams v. Steveiis (2 Camp. 300, 301), Lord Ellanborough allowed a creditor who had not proved to give [130] evidence in support of the commission; though be considered such a party incompetent to increase the fund out of which he might receive a dividend : and, in a note to that case, authorities are cited, shewing that the objection was formerly held to turn upon the creditor's interest in respect of his debt; and that, if divested of that interest, he was deemed competent. In Adams v. Malkin (a)2 Gibbs C.J. held that a creditor, though he had proved, could not give evidence to support the comraisaion, because he was interested in procuring a distribution of the effects under the bankruptcy law. But that is a decision at variance with almost all the other authorities. A creditor is not necessarily interested in upholding the commission. Crooke v. Edwards (2 Stark. N. P. C. 302), is to the same effect as Adams v. Malkin (a)2, and subject to the same remark. [Patteson J. Lord Ellenborough there over-ruled himself.] In such cases, non constat that the creditor will ever have an interest under the bankruptcy ; and there may be a divisible fund, available to him, without. Possibly the individual might obtain a larger sum in the pound without a commission than after the expenses of that proceeding had been incurred. [Coleridge J. The commission puts real property within his reach.] Where the commission is not disputed, and the only question is, whether a debt for which the assignees are suing be due or not, the witness who is a creditor may, prima facie, be supporting his own interest: hera that is not so. The interest to disqualify must be certain and direct: "the legal consequence of the verdict must be such as necessarily to affect the interests of the witness;" Thomas [131] v. Bird (9 M. & W. 68), per Lord Abinger. In that case, the action being trespass for taking goods, a plea that they were the goods of defendant and another as administrators was supported by the evidence of a party entitled to a distributive share as next of kin: and the witness was held competent without a release, because, though " the verdict might practically affect" her interests, "and probably would," it did not "necessarily follow that it would. Nothing would be legally determined by it, so as to affect the rights of the next of kin, as to the goods, the subject of the action, being part of the effects (a)1 See p. 140, post. (b) The words of the material clause are set out in the preceding case, p. 127. (e) January 23d. Before Patteson, Coleridge, and Erie Js. Lord Denman C.J. was absent on account of ill health. (a)2 3 Camp. 534, 543; S. C. as Malkin v. Adams, 2 Rose, 28, 32. 13Q. B.I32. COLOMBINE V. PENHALL 1213 of the deceased, to be accounted for by the administrators." [Erie J. The next of kin would only have an interest failing any claim on the part of creditors.] The doctrine, that the disqualifying interest must ba direct and immediate, is enforced by the judgments of Lord Cottenham and Lord Brougham in Willm v. Farrell (1 Ho. Lords Cases, 93). In Yardley v. Amold, (10 M. & W. 141), an intestate's widow was held incompetent to give evidence against a claim upon the estate; but her interest in defeating the claim was a direct and immediate interest in the whole residue...
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