Bond and Bennett vs. Baldwin. ment and its date, are conceded. Upon this ground, we overrule the protest. [2.] One of the grounds taken for a new trial in this rule is, the admission of evidence on the trial contrary to law, which was not objected to on the trial. It is our opinion that the admission of evidence on the trial, contrary to law, which is not objected to at the time, is not a good cause for a new trial. The party, against whom it is admitted, by not objecting and invoking a decision of the Court, is held to waive his objection, and is bound by that waiver. This being true, it is not error in the Court to refuse a new trial because illegal evidence was admitted without objection, and a writ of error in such a case will not lie to this Court. We do not apply this opinion to this case, but consider it just to the profession to announce, that to this effect will be our judgment whenever the point is made. Tidd's Practice, 907, 908, marg. p. 1 T. R. 717. 1 Bos. & Pull. 429, note a. 1 Mills' Const. Reps. 296. 1 Wash. C. C. R. 440. 5 Pick. 217. 11 Pick. 469. 7 S. & R. 219. 4 Pet. 102. Humph. 27. 4 Sheph. 187. 5 Blackf. 436. 11 Ibid, 185. 4 I shall not undertake to consider each one of the very numerous specifications of error found in this assignment. There is really but four or five questions raised. In considering them, I shall dispose of the case. [3.] And first, it is claimed that the presiding Judge erred in holding that the Superior Court had jurisdiction over the certificate in bankruptcy of the defendant in execution, Mr. Bennett. The position taken by the plaintiff in error is, that it is competent to attack and set aside that certificate only in the Court where it was granted. If it is intended to annul, altogether, a judgment, rendered by any Court, as a general rule, the proceeding must be instituted before the Court that rendered it; so as to the judgment in bankruptcy. But it is also true, that if, in the exercise of its rightful jurisdiction, the certificate in bankruptcy impedes or prevents the rights of a party before the Superior Court, or any other Court, it may be there attacked for fraud and opened, so far as that party's rights are concerned. The certificate in bankruptcy was set up in this case in bar of the right Bond and Bennett vs. Baldwin. of the plaintiff in execution to collect his money on the judgment out of the property levied upon. It was introduced to protect the title of the claimant. We hold that it was competent for the plaintiff in execution to attack it for fraud. The Act of Congress declares that the certificate may be plead as a full and complete bar to all suits brought in any Court of judicature whatever, unless impeached for fraud, on prior reasonable notice being given of such fraud, &c. By the Act, the right to impeach it for fraud is given. See Bellamy & Co. vs. Woodson, 4 Ga. Reps. 179. Flournoy vs. Newton, 8 Ga. R. 309. 8 Alabama R. 858. [4.] It is farther assigned for error, that the partnership books of G. M. Logan & Co. were admitted in evidence at the instance of the plaintiff in execution. The execution was levied upon a slave named Martin, and a claim put in by Mr. Bond. Aside from the discharge in bankruptcy of Bennett, the defendant in execution, it is not pretended but that the lien of the judgment attached upon the slave. The claimant plead the discharge, in bar of the lien of the judgment, and the plaintiff in execution gave notice, under the Act of Congress, that he would impeach the certificate of discharge, on the ground of fraud and wilful concealment and suppression in his schedule, returned to the Bankrupt Court, of a part of his effects, specifying the slave Martin and the interest of Bennett, the bankrupt and defendant in execution, in the firm of G. M. Logan & Co. Logan & Bennett were engaged in business prior to March, 1842, at which time a notice of dissolution appeared, and, as testified by Mr. Logan, Bennett retired from the concern, Mr. Logan continuing the business. This was before Bennett had filed his petition in bankruptcy. In August, 1845, Logan and Bennett formed a new partnership. This was after Bennett's discharge. The books of the old firm were used and continued for the purposes of the new concern. The books show no settlement of the first partnership, and no opening of the new firm. They exhibit a considerable amount standing to the credit of Bennett. The invoices into the books are, some of them, made out in the name of G. M. Logan & Co. and that during the time that Bennett was stated to be out of the business, Logan bought Martin, and another slave, Sam, in October, 1842, Bond and Bennett vs. Baldwin. as the property of Bennett, at Sheriff's sale. In November, 1845, he sold them back to Bennett, receiving a part of the purchase money, and reserving the title to himself until the balance was paid. In January, 1846, Logan & Bennett (Bennett not having paid the balance of the purchase money) sold Martin to the claimant, Bond, Logan making the title. The proceeds of this sale, Mr. Logan testifies, were paid to him, and by him passed to Mr. Bennett's credit on the books. So the books in 1846 exhibit a credit for the purchase money of Martin in Bennett's favor. These facts, in relation to the books, and what they exhibit and what they purport to be, are to be known, that their admissibility may be determined. Now, the issue before the Court was upon the certificate in bankruptcy, and it was this: was there a fraud or not on the part of Bennett, in procuring this certificate, by withholding from his schedule of effects these two negroes, or any interest which he held in them, or by withholding any interest which he held in the firm of G. M. Logan & Co.? In other words, (for the issue comes down to that,) was Bennett interested in these negroes? and had he, either in the old firm or in the business conducted by Logan, individually, after the dissolution, any interest? The schedule, it is conceded, contains no return of any such interests. If he had no such interests, the allegations of fraud are unsupported; if he had, such interests, failing to return them, his discharge is fraudulent, and ought to be set aside. It was, then, an issue of fact, and the question simply is, were these books admissible to elucidate that issue? Divesting thus this point of the facts extraneous to it, and stripping it of the subtelties which the ingenuity of counsel has thrown around it, we do not consider it very difficult. We have seen that the certificate may be attacked for fraud, when, in this jurisdiction, it is in conflict with the rights of a party. It is set up in this case to defeat the lien of the plaintiff's judgment. It is replied to by an allegation of fraud in this: that the defendant in execution did not make a full return of his effects, with the specifications farther, that at the time of making it, he held an interest in, or was, in fact, the equitable owner of the very slave now levied on; and that he held, and was owner of an interest in the firm of G. M. Logan Bond and Bennett vs. Baldwin. & Co. which are not returned. The question then is made, as before stated, was he such owner, or had he such interest? There is nothing in the character of the case (a claim) which will exclude this evidence. The contest is between the plaintiff in execution and the claimant. The plaintiff in execution relies primarily upon the lien of his judgment, which binds all the present property and future acquisitions of the defendant. The claimant sets up the certificate in favor of the defendant in execution, which primarily discharges him and his future acquisitions from liability on the judgment, and thus asserts the nullity of the judgThe issue on the certificate is tendered by the claimant. He cannot object to the reply which the plaintiff makes to it. He has no legal right to evade the issue; and if so, he cannot object to any evidence legally applicable to that issue. It is as competent for the plaintiff to deny the legal effect of this certificate, as it would be to deny the force and effect of any muniment of title which the claimant might produce. The claimant claims under Bennett; for the evidence is, that he bought of Logan & Bennett, paying the purchase money to Logan, which was passed to Bennett's credit. The parties, no doubt, considering that although the legal title to Martin was in Logan, yet that Bennett was the equitable owner. Bennett is not, technically, a party to the issue, and really has no interest. The bona fides of his return is in issue, and upon that, he is in Court represented by the claimant. What right has he to complain? It was plausibly argued, that claimant claimed through Logan, a third person, and therefore, the business relations, between that third person and Bennett, ought not to be adduced to disturb his title; to which it is replied, that if that be so-yet it is competent for plaintiff to show that Logan bought from Bennett, and that Logan's ownership was colorable, and designed, from the beginning, to shield this slave from the operation of the Bankrupt Law-that the title did never pass from Bennett, and therefore, the slave ought to have been returned. In this view of it, the books, showing that the purchase money paid by claimant, was passed to Bennett's credit, particularly taken in connection with other facts, were admissible. Again, the title of Mr. Bond was through Bennett. He was the VOL IX 3 Bond and Bennett vs. Baldwin. virtual vendor, as is demonstrated in his getting the purchase money, and in this: that he indemnified the title by bond and security to Mr. Bond-Mr. Logan being released by Bond on his warranty title to him. Aside from all this, Bond, the claimant, defends against the judgment, by the plea of the certificate. Thence sprang the question of fraud or not. No objection, to my mind, can be made to the admissibility of this evidence, from the relation which the defendant in execution bears to the cause. The evidence was pertinent to the issue. The books contain statements which were proper to be submitted to the Jury relative to Bennett's interest in the firm of G. M. Logan & Co. The invoices were, some of them, made out in that name, and they exhibited credits standing in his favor to a considerable amount unsettled and unexplained by the books themselves. They show no settlement of the old business, and no opening of a new business. These facts were, in our judgment, proper to be sent to the Jury for them to consider in determining the question of fraud in the certificate. In passing upon their admissibility, we are not to consider the explanations of the books made by Mr. Logan, after they were admitted. The record does not show that any objection was made on the trial to their admissibility. Mr. Logan was examined to explain the books. That was right. Our duty by this record is to say, whether these books, as thus appearing, were upon their face admissible. Being pertinent to the issue, they were admissible, as containing the firm relations of the partners. They are the records of the firm kept by them, or by a common agent, to which Bennett had access, and are, in the nature of admissions, by all the members of the firm as to the facts which they set forth. They are evidence for the plaintiff to prove fraud, as showing, by the assent of both Logan and Bennett, the interest in the firm which they exhibit Bennett to have held. They ought first to be shown to be the books of that firm. Doubtless they were. No point on this head is made by the record. We are satisfied that this assignment cannot be sustained. [5.] One of the grounds taken in the rule for a new trial is, that the verdict of the Jury was contrary to the evidence, and it is |