case xxxiV.

#### Jonathan Coit, Administrator of Thomas Chaven, *vs.*John Owen, Executor of Philip Hawkins.

*The*Court mjt incompe-^est,mQ' ny, because of the diffi-otherwise °*’ proving the claim: and after a lapse ^^otgwe further time p"oot 0 ia

¡Tried before Chancellor Gaillard, Charleston,

November, 1810.]

THE assignees of John Hawkins, of London, a bank-rapt, had a demand on account against the estate of Philip Hawkins, which Mr. Owen, the executor, A ed to be just. The estate of Philip Hawkins being composed chiefly of property purchased with the funds of Hawkins, Petrie & Co. the Court of Chancery had by a , , i , . _ , . ,, decretal order, made m December, 1787, m a cause then depending, directed that the estate of Philip Hawkins should be sold, and that the executor should retain in his hands, for the use of the creditors of Hawkins, Petrie & Co. so much as would satisfy Philip Hawkins’s proportion of the debts of that concern.

In 1807 a decree was made by the Court in a cause instituted by the present complainant, against the executor of P. Hawkins, in which decree it was, amongst other things, directed, that as the defendant, John Owen, had made it appear that the copartnership debts of Hawkins, Petrie & Co. were now settled, and there is a balance of the private estate of said Philip Hawkins unadministered, the complainant Coit should come in with the other creditors for his proportion of the estate of Philip Hawkins to bo administered.

In March, 1810, the Court, at the instance of Mr. Winstanly, solicitor for complainant Coit, made an or-*176tier directing1 a commission to be issued to examine sucli witnesses as might be adduced, and also to examine such books and documents as might be produced t° substantiate the demand of the assignees of John Hawkins against Philip Hawkins. And upon an appre-]ieRSjon that the witnesses might be dead after such a lapse of time, interrogatories were sent, under a second commission, to John Hawkins, the bankrupt, relative to the nature and amount of the demand against Philip *Hawkins;*in which commissions both parties joined. One of the commissions was returned executed, the ether was not returned.

At the hearing of the above case, in the Circuit Court, (Nov. 1810) an objection was taken to the admissibility of the evidence of John Hawkins, who might have, and probably had, interests in the case, notwithstanding his bankruptcy and assignment, as there might be a surplus. The executor had always indeed understood and believed, and admitted, that some debt was justly due, but to what amount, or whether a co-partnership or private debt, he was not fully apprised.

It appeared, at the hearing, that the books of John Hawkins had been lost, and that two of the clerks who had made the entries were dead, and the residence of the third was unknown, and the examination of John Hawkins, alone, had been taken by the commissioners. Mr. Coit, the complainant, insisted that this evidence should not be read, as John Hawkins was an incompetent witness. On the other hand, it was insisted that the evidence under ail these circumstances ought to be received, that the executor firmly believed a just debt was due, and that a creditor ought not to be allowed to come in and object to testimony with which the executor was satisfied, and thereby defeat a just claim, in order to enlarge his own proportion, of dividend : and that if the Court thought the evidence inadmissible, further time ought to he given to get the evidence to establish the demand.

The judge, however, was of opinion that the evidence *177was inadmissible, and that it would not be proper to allow further time. He therefore made the following' order :

*“*The commission being opened and the interrogations read $ the Court haying heard counsel in support of and against the claim of John Hawkins; the Court is of opinion that the evidence of John Hawkins is not legal evidence, and even if it were, that under all the circumstances of this case it would be unreasonable to postpone longer the payment of the debt due the complainant :■ — it is therefore ordered and decreed, that the claim of the said John Hawkins be dismissed and that the defendant, John Owen, do pay over the sum retained as the proportion of the debt of the said John Hawkins to and amongst the other private creditors of the said Philip Hawkins, deceased, whose debts have been allowed or legally established, and that the costs he paid by defendant out of his testator’s estate.”

From this decree the assignees of John Hawkins appealed, and, as grounds of the appeal, state :

1st. That the evidence of the said John Hawkins, under the circumstances of the case, ought to have been admitted.

2d. That-under all the circumstances, the claim of the said John Hawkins, or rather of his assignees, ought not to have been dismissed, but should either have been allowed or further time given to substantiate the same.

The appeal was argued before the Court by Mr. Par-kick, and Mr. Drattost for appellant, and Mr. PiUName and Mr. Cimows for respondent.

After hearing the counsel the Court of Appeals affirmed the decree of the Circuit Court for the reasons given therein.

Judge Djisatjssurk having been counsel in the. cause, when *r;*íh¡- bar. declined giving any opinion.