Bond and Bennett vs. Baldwin.

No. 3.-ELIJAH BOND, claimant, and J. J. BENNETT, defendant in execution, plaintiffs in error, vs. MOSES BALDWIN, defend

ant.

[1.] When there is a rule for a new trial, and the decision of the Court on the grounds taken in the rule is excepted to, it is not competent for plaintiff in error to except to decisions made on the trial, not excepted to at the time, and not embraced in the rule.

[2.] The admission of illegal testimony on the trial, not objected to at the time, is not a good ground for a new trial, and the refusal of a new trial upon that ground will not sustain a writ of error to this Court.

[3.] A certificate in bankruptcy may be attacked and opened in a State Court, when it impedes or conflicts with the rights of a party litigating there, so far as that party's rights are concerned.

[4.] Upon the trial of a claim upon an issue between the claimant and the plaintiff in execution, upon the question of fraud, in the procuring of a discharge in the Bankrupt Court, by the defendant in,execution, the mercantile books of à firm, of which the defendant in execution was a member before his application in bankruptcy, are admissible to show that he was owner of an interest in that firm, not returned in his schedule.

[5.] This Court will not control the discretion of the Circuit Court in refusing a new trial, upon the ground that the Jury found contrary to the evidence, but in clear and strong cases of injustice.

[6.] All the acquisitions of a bankrupt, made after the filing his petition in bankruptcy, are exempt from liability to pay debts previously contracted.

Claim, in Bibb Superior Court. Tried before Judge STARK, January Term, 1850.

In this case the defendant in error joined issue, with a protestation, because the writ of fi. fa. given in evidence in the trial of the cause, was not copied in the bill of exceptions; and, also, that certain documentary testimony which was given in evidence in the trial below, did not appear in the bill of exceptions.

The Court held, that the record and bill of exceptions contained sufficient to enable them to decide the points made, and the errors assigned.

A fi. fa. issued in 1842, in favor of Moses H. Baldwin against John J. Bennett, from Bibb Inferior Court, was levied upon a negro by the name of Martin, in October, 1845, as the property VOL IX 2

Bond and Bennett vs. Baldwin.

of Bennett. A claim was interposed to said negro by George M. Logan, on the 28th October, 1845, which claim was withdrawn by him at July Term, 1848.

George M. Logan and John J. Bennett were merchants and partners in the city of Macon. On the first day of March, 1842, a notice of dissolution appeared in the gazettes published in Macon. Bennett retired, while Logan continued in business.

In October, 1842, the negro boy, Martin, and another by the name of Sam, were sold at Sheriff's sale, as the property of Bennett, and Logan became the purchaser. The Sheriff delivered the negro boys to Logan, who paid the purchase money.

In January, 1843, Bennett filed his petition in bankruptcy, and a certificate of discharge was duly granted in September, 1843. After the levy, and before the Court to which the fi. fa. and claim were made returnable, Logan sold and delivered the negro boy, Martin, to Elijah Bond, the plaintiff in error.

After Logan withdrew his claim, Bond became the claimant. While the claim was pending, the plaintiff in fi. fa. notified the claimant and defendant in fi. fa. that he would attack and impeach the decree and certificate of discharge in bankruptcy, on the ground of fraud and wilful concealment by Bennett, the bankrupt; specifying the negro boy, Martin, and the interest of Bennett in the store of George M. Logan; insisting that no real dissolution had taken place, but that Bennett had an interest in the store at the time of filing his petition in bankruptcy.

On the 11th August, 1845, Logan and Bennett formed a new partnership in business, under the firm name of George M. Logan & Co. and Bennett paid into the concern about $3000, with which he was credited on the books.

On the trial of the cause at February Term, 1850, much testimony was submitted to the Jury, of which the following is a brief:

William Gunn stated, that Bond had said he made the trade with Bennett for Martin, but Logan made the title. This conversation was pending the claim by Logan.

George M. Logan bought Martin in 1842, and held him until 1845 or '46; made the bill of sale to Bennett, November 13,

Bond and Bennett vs. Baldwin.

1845, for the two negroes, Martin and Sam; Bennett was my agent when I purchased these negroes, and having once owned them, he desired to buy them when he got able. On Bennett paying me $900, the receipt in evidence, dated the 13th of November, 1845, was given to Bennett. When Bond bought the negro boy, the proceeds were paid to me, and passed to Bennett's credit, and the reason why I claimed was, because Bennett had not paid all the purchase money. Bennett may have made presents to the negroes.

James Dean signed indemnity bond, made by Bennett to Bond, in January, 1849, to secure Bond, and Bennett secured me by

notes.

J. L. Saulsbury hired Sam in 1844, and had some conversation with Logan and Bennett on the subject; think I gave the note to Bennett; paid the note at Logan's counting-room, but to whom does not know; frequently saw Bennett about Logan's store.

The books of the Merchants' Bank of Macon were introduced, which showed that the note of Saulsbury was made payable to Bennett, and by him indorsed.

The books of George M. Logan were submitted in evidence, to show that there was no dissolution.

John B. Stow is acquainted with book-keeping; the books show no partnership and no dissolution.

George M. Logan, re-introduced.-The dissolution took place in March, 1842, and was not formed again until August, 1845; Bennett had no interest during that time, either in the store or in the negroes, Sam and Martin; the $3000 entry, made 1st March, 1842, was for Bennett's entire interest in the concern, and the error in the books consists in not charging profit and loss account; there is a credit to Bennett in the books, but it occurred since the new partnership in August, 1845.

In his charge to the Jury, Judge Stark stated, that "the discharge in bankruptcy is a full and final acquittance of the defendant from the debt, unless successfully impeached for fraud, and that by sufficient proofs; but if the defendant, at the time of his application for the benefit of the Bankrupt Law, owned the slaves, Martin and Sam, and had a valuable interest in the firm

Bond and Bennett vs. Baldwin.

of G. M. Logan & Co. then it was his duty to have included these slaves, as well as his interest in said firm, in his schedule, and his failure to do so is such a fraud as renders the discharge in bankruptcy a nullity, and you should find the property subject; but if the schedule is a full, faithful and fair account of all Bennett's estate at the time, all the property acquired by the bankrupt, since the discharge, is exempt from the payment of his debts previously contracted.”

The Jury found the property subject to the execution; whereupon counsel for claimant moved the Court for a new trial, upon several grounds, of which it is only necessary to give the following:

1st. Because the Court erred in ruling that the judgment of the Circuit Court, sitting in bankruptcy, could be attacked for fraud, collaterally in this Court, whereas the attack should have been made in the Court where the judgment was pronounced.

2d. Because the Court erred in permitting the books to be submitted to the Jury, as evidence against claimant, or as against John J. Bennett.

3d. Because the Jury found contrary to law and evidence.

4th. Because the Court charged the Jury, "that if the schedule filed by Bennett was a full, faithful and fair account of all Bennett's estate, at the time, all the property acquired by the bankrupt, since his discharge, was exempt from the payment of his debts, previously contracted;" but should have charged, that the acquisitions of the bankrupt, from the filing of his petition in bankruptcy, are not subject to the payment of his debts previously made.

The Court overruled the motion for a new trial, and counsel for claimant excepted.

MCDONALD, STUBBS, HALL and POWERS, for plaintiffs in error. HINES & HINES, for defendant.

By the Court.-NISBET, J. delivering the opinion.

[1.] Issue was joined in this case with a protest. In the pro

Bond and Bennett vs. Baldwin.

test, it is assumed that no question can be considered by this Court, that is not raised on the rule nisi for a new trial. We recognize the correctness of this assumption, and will pass upon no point, made in the bill of exceptions, that is not made in the rule, and for the following reasons: A new trial was moved in this case and refused by the Court. The bill excepts to this decision, and error is claimed to have been committed, and is assigned upon all the grounds specified in the rule for a new trial. This is very well. But the bill of exceptions goes behind the rule, and charges divers errors upon the Court in its rulings on the trial, and the assignment, in this regard, follows the bill. These rulings on the trial were not excepted to at the time, and not. being taken in the rule as grounds for a new trial, were not excepted to in the exception to the decision of the Court on the rule. They have, consequently, no where and at no time been excepted to, and for that reason cannot be considered by this Court. 7 Howard's Miss. R. 414. 24 Wend. 496. 12 Ohio R. 132. 6 Blackf. 417. 1 Scam. 281. 4 S. & M. 113. 7 Porter, 270. 2 Brock. 75.

The protest farther claims, that the Court shall pass no judgment upon this writ of error, but that the same be dismissed, because the execution which was levied upon the property in dispute, is not sent up. The rule of this Court is, that the plaintiff in error must bring up all the evidence, documentary or by parol, which is necessary to elucidate the questions made for review. If he does not, the defendant has the right to move for a dismission of the writ, and if he fails so to move, the Court will, upon its own motion, confirm the judgment below. Under this construction of our rule, the question is this: is the execution necessary to elucidate any point taken in the bill? Can we fairly and justly adjudicate all the points made without it? We think that we can. We see no purpose, whatever, which the execution could subserve, if it was here, but to show the lien and the date of the judgment which is sought to be enforced. There is no contestation, whatever, about the lien of the judgment. On the contrary, throughout the record, the existence of the judg