Farrington v. Farrington , 4 Mass. 237 ( 1808 )

The demandant supported his declaration by showing that upon a judgment recovered by him against the tenant in March, 1804, execution issued, and was duly levied on the land demanded, and seisin and possession delivered to him, and the execution returned and recorded according to law.

The tenant claimed under Ebenezer Trescott, who was admitted as a party in the defence, and he purchased of Moses Whitney, assignee of Farrington, the demandant, who was duly declared a bankrupt on the 30th of July, 1803. The commission of bankruptcy, and the proceedings under it, were regular, and the sale by the assignee to Trescott was by public auction, and without fraud or collusion.

The tenant, to prove the petitioning creditor’s debt, on which the commission of bankruptcy was awarded, produced no other evidence than an attested copy of the proceedings under the commission, and the deposition of the petitioning creditor.

A verdict was directed to be given for the tenant, which was to be set aside, and a new trial granted, if the Court should be of opinion that the doings of the commissioners were prima facie evidence of the petitioning creditor’s debt, or that the petitioning creditor was a competent witness to prove his debt; otherwise judgment was to be entered according to the verdict.

The action was continued nisi, and at this term the Chief Justice said that the opinion of the whole Court was, that the petitioning creditor was a competent witness, having no interest in the cause; and a verdict was set aside, and a new trial ordered.