GLENN VS. BAKER. 79

of all authority in support of it, I am persuaded it was not very
fully examined.

The argument of the complainant's council, in opposition to
the admissibility of this answer contends, that the defendant
should not have the benefit of it as evidence, because he might
have examined Childs as a witness—a privilege which he in-
sists the plaintiff had not, upon the ground, that his interest in
the surplus of the estate, if any, in the hands of the trustee
Glenn, disqualified him.

Now, in the case of Hickley vs. The Farmers & Merchants⁷
Bank, 5 G. & J, 377, the complainant, the trustee of an in-
solvent debtor did examine the insolvent upon this very ques-
tion, and the decision of the Court of Appeals turned entirely
upon his evidence. But, independently of authority, is there,
upon principle, any weight in the objection to the insolvent as
a witness for his trustee, upon a bill filed by him, to set aside
such a deed as the present? The objection is, that if the
plaintiff succeeds, he, the witness, will be entitled to the sur-
plus of the estate, after his debts are paid. But is not this the
precise condition of things under the impeached deed to the
defendant, Baker ? Does not that deed say, that after the pay-
ment of debts, the surplus, if any, shall be paid over to the
grantor, his executors, administrators or assigns, and is there
not, therefore, an exact equipoise, rendering it perfectly indif-
ferent to the insolvent, in point of interest, whether the decision
passes one way or the other.

This is not like the case of an action brought by the trustee
of an insolvent debtor, against one of his debtors, in which the
insolvent would not be a competent witness for the plaintiff
without leasing his interest in the surplus, because his proof
would go to swell a fund, in which he would, in a certain event,
have a right to participate.

But the question here is, simply, which of two trustees shall
administer the fund, the rights of the insolvent being identically
the same, let the result be what it may. Under such circum-
stances, I think, there is such an equilibrium of interest, that the
insolvent would be a competent witness for either party, and so