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to admit him will be to make him a witness in his own SMALLCOMBE cause.

v.

BRUGES.

Saturday, February 7th.

Manning, in reply. The cases cited have no bearing on the question. In Hoare v. Coryton, it did not appear whether the admission took place before the issuing of the commission, or not. The point did arise in Heale v. Colenso. The admission by the bankrupt in this case was against himself.

ALEXANDER, C. B. (Having stated the case.) The question is, whether the evidence offered ought to have been received. I am of opinion, that the evidence is not admissible. It is allowed by counsel on both sides, that any admissions by a bankrupt before the act of bankruptcy, are clearly admissible evidence to bind his estate. On the other hand, it is equally admitted in argument, and seems equally clear, that conversations after the commission has issued, are not admissible to prove the petitioning creditor's debt, or any fact necessary to sustain the commission; because, as it is stated, the bankrupt may have a great interest to support the commission, and that interest renders any declarations made by him at that time toɔ suspicious to be received. But this question arises upon an intermediate interval, that namely, between the act of bankruptcy, and the issuing of the commission. And the rule of evidence applicable to that period, does not seem to have been so clearly and uniformly understood by the judges, as the two former. Let us consider upon what ground it is contended, that this evidence is admissible. It is quite clear, that after the act of bankruptcy, the bankrupt is incapable in any manner to affect the situation of his estate. He cannot contract debts; he cannot part with any portion of his estate; he cannot do any act to affect it. And it seems very extraordinary indeed, that being under all these disabilities, he

should be able at that very time, by his conversations, to do

1824.

v.

BRUGES.

in effect the very thing which the law prohibits him from SMALLCOMBE doing in any other manner. On this ground, I think the evidence most clearly inadmissible. But it is contended that there are authorities in opposition to what I have stated. Of the many cases cited, there appear to me to be only four which go to the point before us; two of those make for one side of the argument, and two for the other. In the first, Robsonv. Kemp, Lord Ellenborough gave a very clear opinion, that such declarations and conversations were not admissible. The act of bankruptcy relied on, was the execution of a fraudulent assignment by deed of a ship by the bankrupt to his son. A witness was called to give evidence of a conversation between the father and son respecting the transaction, in order to prove the fraud; but it appeared to have taken place after the execution of the deed. That was objected to, as having occurred after the act. And Lord Ellenborough expressed his opinion, that declarations and conversations which took place subsequent to the execution of the deed, and the commission of the act, which constituted an act bankruptcy, were not admissible; and the evidence was rejected. This was a nisi prius case. The next case was cited in argument on the same side, Hoare v. Coryton; there, the petitioning creditor's debt appeared in an account stated by the bankrupt, charging himself with a balance brought over on a day prior to the bankruptcy, and it was proved that the debt had been acknowledged after the balance was struck; but there was no precise date to the acknowledgment. This evidence, though objected to, having been received at the trial, and a verdict given for the defendant, it became a question on arguing a rule nisi for setting aside the verdict, whether it was incumbent on the party relying on the acknowledgment, to shew that it had been made before the bankruptcy. The Court was of opinion that it was. Lord Chief Justice Mansfield said, the very materiality of

6

1824.

v.

BRUGES,

this paper depends upon the truth of its being acknowSMALLCOMBE ledged before the bankruptcy: that must be proved by evidence dehors the paper.' And Sir Vicary Gibbs said, 'the plaintiffs were bound to shew by evidence, that the paper which they wished to produce, was made and signed before the bankruptcy; and especially as it seems that the plaintiffs took upon themselves to give evidence of an actual acknowledgment by the bankrupt, besides the writing; they therefore certainly ought to shew, as part of their case, at what time the acknowledgment was made.' This seems to be a very clear opinion of these two great judges, testifying upon this point, that the acknowledgments of a bankrupt, after the act of bankruptcy, are not evidence to support the petitioning creditor's debt. Of the cases on the other side, the first is Dowton v. Cross. I don't think that case very clearly, or accurately stated in the report; or that it can be collected from it, what the exact point before the Court was. But it certainly does contain in terms an opinion of Lord Kenyon, that such evidence is admissible. The report states that the counsel for the defendant objected to the evidence, inasmuch as the petitioning creditor's debt ought by law to be prior to the act. From this statement one would be led to suppose, that the question was, whether the debt ought to have been prior to the act. If we are to infer what the question was from the statement of Lord Kenyon's opinion, it seems to be exactly that of the admissibility of the evidence. However, as this confusion seems to hang over the case, it ought not perhaps to have much weight. But so far as it can be relied upon, it is an authority that the admission of a debt by a bankrupt after the act of bankruptcy may be given in evidence. There is another case which goes the same way, Brett v. Levett. In that case a question was put to a witness, who spoke to conversations subsequent to the act of bankruptcy, between the plaintiff and the bank

1824.

v.

BRUGES.

rupt, being equivalent to a notice to the bankrupt, that a bill would be dishonored. The evidence was objected to, SMALLCOMBE but received: and the Court of King's Bench was of opinion, that it was admissible, and refused the rule nisi for setting aside the verdict upon that point. This is an authority to a certain extent, unless a distinction be made between the proof of a petitioning creditor's debt, and that of a merely collateral circumstance. On the whole, my own opinion, upon general principles, is very strongly against the admission of such evidence; and weighing the advantages of receiving or excluding it, one against the other, I have a clear conviction that the latter preponderate. Its allowance might occasion a great deal of fraud. It might by possibility lead to conversations of bankrupts after an act of bankruptcy, so as to raise up, or destroy, any debt. And it appears to me, that an analogy ought to exist between the acts of a bankrupt after an act of bankruptcy, which cannot in any manner affect his estate, and his conversations. The best conclusion at which I can arrive, is, that the evidence was rightly refused.

GRAHAM, B. I have always understood, and in my practice have thought it acted upon as a principle, that conversations, or declarations of a bankrupt, after an act of bankruptcy, if they could by any possibility be beneficial to himself, were inadmissible as evidence. And this is really founded on the most salutary principle; because the bankrupt has an obvious interest in the commission being sued out and supported, which, in the last event, discharges him from his general debts. And the rule is the more necessary, because nothing is more common than commissions of bankrupt preconcerted, to effect that object. The rule however, can hardly extend to all cases that might be supposed. An act of bankruptcy can never be purged. But if a man commits an act, and afterwards becomes, and goes on for a length of time, perfectly solvent, until fresh

1824.

v.

BRUGES.

misfortunes and distress induce a commission; his une

SMALLCOMBE quivocal declarations made during the time of his perfect solvency, might perhaps be allowed in evidence, because at that time he was in full credit, and was interested in supporting his credit. But when a particular act of bankruptcy has been followed up by a commission, I have always heard, that the bankrupt's admissions, from such act, were excluded. The distinction drawn by Lord Kenyon was perfectly new to me, until the case was cited from Espinasse. The suing out of the commission seems a very indefinite point of time to fix on for limiting the admissibility. One would think that the distinction was not characterized by the usual accuracy of that able judge. I think, that under all the circumstances of this case in particular, this evidence was very properly rejected. It is in itself perhaps one of the most striking instances of the danger of receiving such evidence.

GARROW, B. I also am of opinion, that this evidence was very properly rejected. The argument for receiving the evidence presents this position, that a state of things may arise, in which it is quite clear the bankrupt himself could not be examined on oath, and subjected to the test of a cross-examination; and yet that the loose declarations made by him to others, not upon oath, may be received in evidence, so as to produce an effect which the evidence of his own examination, and cross-examination, could not have produced. This is a state of things which does not exist in any other part of our law, and is not to be reconciled with the general wisdom of the rules of evidence. The object of the law of evidence, is not to guard against the honest and well-meaning part of society, but against the impositions which fraud and craft, if unrestrained, would introduce into the administration of justice. Nothing is more clear, than that when a man is going on prosperously in his affairs, he will not admit a debt to another,