Emery et al. v. The Canal National Bank. tion of the rule, that if a joint and several creditor is permitted to prove against both the joint and separate estates, he would draw from the separate estate to the prejudice of the other joint creditors who ought to have an equal right with himself in that estate, which would create a preference inconsistent with the principles of the bankrupt law. Ex parte Bond, Atk. 100. Throughout that period, however, the rule has been opposed by many judges as an arbitrary one, and one not founded on any sound principle. Ex parte Bevan, 10 Ves. 107; Ex parte Henton, De Gex. 550; Ex parte Goldsmith, 1 De G. & J. 454. Judge Sprague said that he was not able to discover any sound principle upon which it rested, and that it had generally been admitted, even by those who enforced it, that it is as little consonant with justice as with the rules of law. Attention is very properly called to the fact that he was expounding the bankrupt law of 1841; but it is as true now as it was then that the old rule has never been adopted in this country, and that existing contracts have been made under and with reference to the rule of law which gives to a party having two valid obligations the benefit of both, and in view of that consideration he remarked that he did not think himself bound or authorized to set aside a right which he regarded as founded both on law and justice, on account of an arbitrary rule justly reprobated by some of the most eminent judges and jurists in England, and which was never recognized in this country. Story on Part. § 382; Borden v. Cuyler, 10 Cush. 476. Power to establish uniform laws on the subject of bankruptcies throughout the United States is vested in Congress, and Congress having executed that power, the question under consideration must depend upon the proper construction of the provision in that behalf in the bankrupt act. Bankrupts, as all experience shows, may be liable at the time of adjudication, upon a bill of exchange, promissory note, or other obligation, in respect of distinct contracts as members of two or more firms carrying on separate and distinct trades, and having distinct estates to be wound up in bankruptcy, or as sole traders, and also as members of a firm, and § 21 of the bankrupt act provides that in such Emery et al. v. The Canal National Bank. cases "the circumstance that such firms are in whole or in part composed of the same individuals, or that a sole contractor is also one of the joint contractors, shall not prevent proof and receipt of dividend in respect of such distinct contracts against the estates respectively liable upon such contracts." 14 Stat. at Large 527. Tested by the concluding part of the section as transcribed, § 21 of our bankrupt act is an exact copy of § 152 of the English bankrupt act of 1861, but the introductory parts of the sections differ, as the English act is confined to bills of exchange and promissory notes, whereas our bankrupt act extends in that behalf also to "other obligations"; showing that it was the intention of Congress to give it a more comprehensive operation, as indicated by the addition of the words "or other obligation" to the words "any bill of exchange or promissory note," contained in the said English bankrupt act. Two classes of persons are mentioned in the first part of the section, as embraced in the provision, namely, any bankrupt liable upon any bill of exchange, promissory note, or other obligation, in respect of distinct contracts as a member of two or more firms carrying on separate and distinct trades, and having distinct estates to be wound up in bankruptcy. 2. Or as a sole trader, and also as a member of a firm; and the argument for the petitioners is that the term "sole trader" is used in a technical sense, and that it cannot be construed to include a sole contractor, as in the case of the indorsement of a promissory note by a separate member of the firm, which is signed by the firm as promisors. Considered separately, the first part of the section would afford strong support to that proposition; but the whole section must be construed together, and the last part provides that the circumstance that such firms are in whole or in part composed of the same individuals, or that the sole contractor is also one of the joint contractors, shall not prevent such proof and the receipt of dividends; showing to the satisfaction of the court that the term "sole trader" is not used in a technical sense, and that its meaning was intended to be enlarged by the latter part of the section, as was held by the court in the case of Ex parte Honey, to which reference has already been made. True, the Emery et al. v. The Canal National Bank. words "sole trader" are not used in the last English bankrupt act, but they were used in the former act, and the court held in the case referred to that those words when considered in connection with the closing part of the section, which is precisely the same as the closing part of the corresponding section in our bankrupt act, meant nothing more than the words "sole contractor," and that the enactment was intended to include a joint and several promissory note, and that it ought not to be confined to cases where the parties had executed separate instruments. Much consideration has been given to the question by several of the District judges, and in every such case which has fallen under my observation, the judge has come to the conclusion that the rule which allows a party holding two valid obligations, the benefit of both, is founded in law and justice, and that it is sustained by the true construction of § 21 of the bankrupt act. Meade v. Bank of Fayetteville, 2 N. B. R. 65; Ex parte Bigelow, Ex parte Howard, 4 N. B. R. 185; Meade v. Bank of Fayetteville, 6 Blatch. 185. Creditors, before any act of bankruptcy is committed by their debtor, may acquire a right to prove their claim against the joint estate, by one contract, and against the separate estate by another, and it is not possible, it seems to the court, to assign any good reason why a subsequent act of bankruptcy should be held to deprive them of the benefit of their caution and diligence. English judges and legislators have at last come to that conclusion, and there is no good reason why the courts in this country should adopt a rule which at last has been exploded and abandoned in the tribunals where it was first adopted. Their debts are certainly provable, and the estate must, by the express terms of the act, be distributed among all creditors whose debts are duly proved. Bump. Bankruptcy, [5th ed.] 198; Ex parte Downing, 3 N. B. R. 182. 2 N. B. R. 121 ; Andrews et al. v. Hyde et al. MASSACHUSETTS DISTRICT. OCTOBER TERM, 1872. ELIZA J. H. ANDREWS et al. v. HENRY D. HYDE et al. Repeated decisions of the Federal Courts have established the rule that oral evidence is admissible for the purpose of showing that a deed absolute on its face, was intended as a mortgage, and that the defeasance was omitted from mutual confidence between the parties. The evidence to prove the agreement ought to be clear and satisfactory, as the rule is one of exceptional character in the law of evidence. Where the evidence to prove the agreement, was that of only one of the parties, the other having deceased, and was uncorroborated by any word or act of the other, proof of friendly relations existing between the parties is not sufficient where the evidence is otherwise subject to doubt. Where witnesses are not excluded on account of interest in the event of the suit, the rule still applies that their veracity or impartiality may be affected by such interest. Something is due in such a case as this, to the denials of the answer to the effect that the conveyances were not made as security for any indebtedness. Where the allegation of the bill is that certain real estate was conveyed to a deceased person as security for a debt, the complainant is not entitled to a decree upon the uncorroborated testimony of a single witness, and certainly not unless his statements are positive, and he appears to be without prejudice, bias, or interest adverse to the respondent. THE complainants were the assignees in bankruptcy of the estate of Horatio Woodman, and the respondents were the heirs at law and administrators of the estate of John A. Andrew, late of Boston, deceased. Briefly stated, the cause of action, as alleged, was as follows: that Woodman on the 17th of September, 1860, borrowed of John A. Andrew the sum of $6,000, for which he gave his notes, and as security for the debt and notes he conveyed or caused to be conveyed to him by two deeds dated respectively September 17, 1860, and October 8, in the same year, certain real estate situated in the counties of Shelby and Franklin in the state of Iowa, as more fully described in the said deeds. Said deeds, as the complainants alleged, were executed as security for said indebtedness, and that the grantee agreed to hold Andrews et al. v. Hyde et al. the lands only as security as aforesaid, and that he would reconvey said real estate to said Woodman when he should pay the amount of the loan and interest. Based upon these allegations, the prayer of the bill was that the complainants might be permitted to redeem the said lands, and for an account. The principal deed in question was the one first described, which was acknowledged on the day of its date, and was recorded on the 26th of the same month in the proper registry of the county where the land is situated. It acknowledged the receipt of three thousand dollars, which the grantor told one of the witnesses was the full value of the land. When conveyed, the land was wild land, neither party occupying it. Service was made, and the respondents appeared, and filed an answer in which they denied that the land was conveyed as a security, and averred that the conveyance was absolute and not as security. Testimony was taken, and the District Court entered a decree for the complainants, from which decree the respondents appealed to this Court. Woodman testified that the deeds were never in the possession of the grantee, that they remained in his possession until the appointment of his assignees in bankruptcy, that the deeds were made as security for present and future loans, that at the date of the first deed he was owing the grantee $3,540.91, and that at the time of his death, October, 1867, he owed him $7,000. H. W. Paine and C. M. Ellis, for appellants. H. D. Hyde, for appellees. CLIFFORD, J. The testimony was full to the point that the deeds were given as security, and, if so, the complainants must be permitted to redeem, and they are entitled to an account as prayed in the bill, as repeated decisions of the Federal courts have established the rule that oral evidence is admissible for the purpose of showing that a deed absolute on its face was intended as a mortgage, and that the defeasance was omitted from mutual confidence between the parties. Wyman v. Babcock, 2 Curt. 386; Babcock v. Wyman, 19 How. 299; Russell v. Southard, 12 How. 139. Argument to support that rule of law is unnecessary, as it is well settled by authority, but the evidence to prove the |