Barclay v. . Carson , 3 N.C. 243 ( 1803 )

This being an action against a debtor of the bankrupt, producing the commission and assignment is a proof of the trading, bankruptcy, the time thereof, and appointing plaintiff's assignees. Were this a debt due from Gibbs and Barclay, I am of opinion that as the assignees of Barclay had sued, and no plea in abatement put in, they may recover a moiety. I am of opinion, also, that a creditor of Gibbs and Barclay may be a witness to prove the debt due to Barclay, if it be proved that the separate estate of Barclay will (244) not suffice to pay his separate creditors; for, as the creditor upon the joint fund must first apply to the joint fund, and the separate creditors to the separate fund, if this latter be exhausted by the separate creditors, a creditor in the joint fund can have no interest in placing the demand in question in the separate fund; and in so doing, he diminishes the joint fund out of which his dividend is to come. I am of opinion, also, that Gibbs, the other partner and bankrupt, may be admitted as a witness to prove the debt due to Barclay, for that tends to diminish the fund out of which his allowance is to come.

A demand against the bankrupt, which the defendant has acquired since the bankruptcy, cannot by the express words of the act be set off against the assignees. Of this nature is a debt paid by defendant since the bankruptcy, as a surety before; so also is a debt arisen by delivery of goods to the bankrupt by the defendant since the act of bankruptcy committed.