It is a familiar rule of evidence, that a person is not a competent witness to increase, or prevent the diminution of, a fund in which he has a right to participate ; but it is not applicable to the present case. If the defendant might, in case of a recovery against him, have claimed indemnity, and presented such claim against the estate assigned, so as to have entitled himself to participate in said estate in the hands *337of the assignee, yet It is very dear, by a reference to the statute on this subject, that, as no such claim bad been presented, and the avails of the estate assigned had been distributed to the creditors qf the assignor, snd the trust had been settled and dosed at the court of probate, such avails could not, in any mode, be recalled, by the assignee, from the creditors, whose claims had been allowed, and to whom they had been paid, or be made available to apply to the claims of any other creditors. Therefore, as the witness was entitled to retain what he had received from such avails, as a creditor of said estate, and the fund, in which he had a right to particle pate, could not be affected to his prejudice, whatever might be the event of the present suit, he had no such interest in the event as was claimed by the plaintiff, and the decision of the court below was correct.

A new trial, therefore, is not advised.

New trial not to be granted.