[309]*309
By the Court.
Lumpkin, J.
delivering the opinion.
John H. Newton sued Howell C. Flournoy, as the indorser of a promissory note, made by Charles G-. McKinley. The defendant pleaded a discharge in bankruptcy. The plaintiff impeached the discharge for fraud. The Bankrupt Act of 1841, requires the creditor to give reasonable notice, specifying the grounds of fraud. In this case, three notices were filed — the two last of which were objected to, for the reason that no leave of the Court was previously obtained.
[1.] Was it necessary to get leave ? Counsel for the plaintiff in error insist, that the notice is a part of the pleadings; that it is in the nature of a replication, and cannot be amended without the permission of the Court. Were'this so, the amendment, we apprehend, would be fully authorized by the rules of practice ; but we do not consider the notice a part of the pleadings. The Act of. Congress requires, that “ reasonable notice be given, specifying the grounds of fraud.” And the question is, has this been done 1 The last of the three notices was served in January, 1848, and the final trial of the cause was not had till February, 1850, more than two years thereafter. That time was ample to prepare to rebut the attack. Besides, had the defendant been surprised, he could have moved for a continuance. Failing to do this, we are warranted in presuming that he suffered no injury.
[2.] The second notice was to the effect, that the certificate of bankruptcy would be impeached, because the debtor, in contemplation of bankruptcy, had sold and transferred to one George Mews, a judgment obtained by him against one John S. Smith, in Clarke Superior Court, for the sum of fifty-five dollars, principal, and five dollars and fifty cents, interest, for an amount equal to or less than said judgment, to the great detriment of the plaintiff; and the objection to this notice is, that it contains no allegation, either of any fraudulent act or intention.
All fraud vitiates the discharge, and the second section of the Act declares, expressly, that “ transfers -of property, in contemplation of bankruptcy,” are “ utterly void, and a fraud upon the Act,” and the same may be set up as an impeachment of the discharge. The specification in the notice is in terms of the law.
[3.] We have been called on to say, whether a bankrupt may [310]*310not appropriate a portion of his effects, by sale or otherwise, to raise the means to obtain his discharge 1 We think that he may; otherwise, the benefit secured to him by the Act would be unavailing. The question should be submitted to the Jury, under the charge of the Court, whether the assignments in this case were bona fide made, to raise the necessary funds to maintain the application, or whether it was done, colorably only, and for the purpose of defeating the creditors.
[4.] The next complaint in order is, that the Court below erred in permitting the plaintiff to introduce parol testimony of the transfer of the Smith fi. fa. to Mews — it appearing, in evidence, that said transfer was in writing; and upon this point we are compelled to sustain the plaintiff in error. The charge on the notice is, that this conveyance was made in contemplation of bankruptcy — consequently the date of the transaction is material. It is also alleged, that the execution was assigned for a sum equal to or less than the amount of the judgment. The amount, therefore, of the fi. fa. is essential; and we know of no principle which will justify us in dispensing with the highest evidence, namely: the execution itself, together with the written transfer. We suppose the doctrine to be too well established to admit of doubt, that whenever it turns out, either in the direct or cross-examination, that a writing exists, with regard to a transaction, which the law esteems as the best evidence, it must be produced, or its absence accounted for; and that if this is not done, all inferior or secondary evidence that may have been given, will be stricken out and disregarded. Rex vs. Radston, 4 Barn. S¡- Adolp. 208. Rex vs. Rondar, 8 Barn, fy Cress, 708. Boon vs. Dykes, 3 Monroe’s Rep. 529, 531.
But it is ingeniously argued, that the transactions in controversy here, are proven by testimony entirely independent of the writings themselves, to wit: the declarations of the party ; and the case of Sewell vs. Stubbs, (1 Carr. & Payne, 73,) would seem to sustain this position. The better opinion, however, is, that you cannot ask the witness what the opposite party has said, as to the contents of papers executed by him, without accounting for their non-production. Bloxam vs.Elsee, 1 Carr. & Payne, 558. VanDusen vs. Fink, 15 Pick. 449. Ex parte Simpson, Charl. R. 111. Hart vs. Yunt, 1 Watts, 252. Wiggin’s administrators vs. Pryor’s administrators, 3 Porter, 430. Freeman vs. Peary, 2 Bail. [311]*311394. Northorp vs. Jackson, 13 Wend. 86. Ramsay vs. Johnson, 3 Penn. 293.
It is well known that we, as a Court, are not latitudinarian, hut strict constructionists, as to the great rule of evidence — that where a writing exists, it constitutes the best, if not the exclusive medium of proving the facts to which it relates, and that we have rarely, if ever, yielded to the authority of those dicta, or even reported cases in this country, which would allow matter evinced by written evidence, to be proved orally. Our experience is, that the general results of every relaxation of the rule, have soon demonstrated its impropriety. In this very case, if the writing had been produced, it might have turned out, either that the assignment was made after the certificate of discharge was obtained or prior to the passage of the law, and thus have precluded the idea, that it was done in contemplation of bankruptcy.
[5.] The only remaining ground in the record is, that the Court erred in refusing to grant a new trial, because the verdict was contrary to evidence.
We know not that we have any thing to add to the grounds heretofore taken, and so uniformly and firmly maintained by this Court, especially since the decision in Mays vs. Stroud, 7 Ga. Rep. 269. I would merely remark, that in Goodman vs. Smith, (4 Dev. Law Rep. 450,) the Supreme Court of North Carolina held, that they would not set aside the verdict, although, in their opinion, founded on slight testimony; and Judge Gaston, in delivering the opinion, says, “ Upon the whole, we do not feel ourselves authorized to say, that there was no evidence to be left to the Jury, respecting the fact upon which they found their verdict.”
We consider the recent Act of the General Assembly, forbidding the presiding Judge, to intimate even his opinion as to the facts, and making it a distinct ground of error, as a legislative sanction and indorsement of our efforts to protect the just rights of this co-ordinate branch of the judiciary.
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[309]*309
By the Court.
Lumpkin, J.
delivering the opinion.
John H. Newton sued Howell C. Flournoy, as the indorser of a promissory note, made by Charles G-. McKinley. The defendant pleaded a discharge in bankruptcy. The plaintiff impeached the discharge for fraud. The Bankrupt Act of 1841, requires the creditor to give reasonable notice, specifying the grounds of fraud. In this case, three notices were filed — the two last of which were objected to, for the reason that no leave of the Court was previously obtained.
[1.] Was it necessary to get leave ? Counsel for the plaintiff in error insist, that the notice is a part of the pleadings; that it is in the nature of a replication, and cannot be amended without the permission of the Court. Were'this so, the amendment, we apprehend, would be fully authorized by the rules of practice ; but we do not consider the notice a part of the pleadings. The Act of. Congress requires, that “ reasonable notice be given, specifying the grounds of fraud.” And the question is, has this been done 1 The last of the three notices was served in January, 1848, and the final trial of the cause was not had till February, 1850, more than two years thereafter. That time was ample to prepare to rebut the attack. Besides, had the defendant been surprised, he could have moved for a continuance. Failing to do this, we are warranted in presuming that he suffered no injury.
[2.] The second notice was to the effect, that the certificate of bankruptcy would be impeached, because the debtor, in contemplation of bankruptcy, had sold and transferred to one George Mews, a judgment obtained by him against one John S. Smith, in Clarke Superior Court, for the sum of fifty-five dollars, principal, and five dollars and fifty cents, interest, for an amount equal to or less than said judgment, to the great detriment of the plaintiff; and the objection to this notice is, that it contains no allegation, either of any fraudulent act or intention.
All fraud vitiates the discharge, and the second section of the Act declares, expressly, that “ transfers -of property, in contemplation of bankruptcy,” are “ utterly void, and a fraud upon the Act,” and the same may be set up as an impeachment of the discharge. The specification in the notice is in terms of the law.
[3.] We have been called on to say, whether a bankrupt may [310]*310not appropriate a portion of his effects, by sale or otherwise, to raise the means to obtain his discharge 1 We think that he may; otherwise, the benefit secured to him by the Act would be unavailing. The question should be submitted to the Jury, under the charge of the Court, whether the assignments in this case were bona fide made, to raise the necessary funds to maintain the application, or whether it was done, colorably only, and for the purpose of defeating the creditors.
[4.] The next complaint in order is, that the Court below erred in permitting the plaintiff to introduce parol testimony of the transfer of the Smith fi. fa. to Mews — it appearing, in evidence, that said transfer was in writing; and upon this point we are compelled to sustain the plaintiff in error. The charge on the notice is, that this conveyance was made in contemplation of bankruptcy — consequently the date of the transaction is material. It is also alleged, that the execution was assigned for a sum equal to or less than the amount of the judgment. The amount, therefore, of the fi. fa. is essential; and we know of no principle which will justify us in dispensing with the highest evidence, namely: the execution itself, together with the written transfer. We suppose the doctrine to be too well established to admit of doubt, that whenever it turns out, either in the direct or cross-examination, that a writing exists, with regard to a transaction, which the law esteems as the best evidence, it must be produced, or its absence accounted for; and that if this is not done, all inferior or secondary evidence that may have been given, will be stricken out and disregarded. Rex vs. Radston, 4 Barn. S¡- Adolp. 208. Rex vs. Rondar, 8 Barn, fy Cress, 708. Boon vs. Dykes, 3 Monroe’s Rep. 529, 531.
But it is ingeniously argued, that the transactions in controversy here, are proven by testimony entirely independent of the writings themselves, to wit: the declarations of the party ; and the case of Sewell vs. Stubbs, (1 Carr. & Payne, 73,) would seem to sustain this position. The better opinion, however, is, that you cannot ask the witness what the opposite party has said, as to the contents of papers executed by him, without accounting for their non-production. Bloxam vs.Elsee, 1 Carr. & Payne, 558. VanDusen vs. Fink, 15 Pick. 449. Ex parte Simpson, Charl. R. 111. Hart vs. Yunt, 1 Watts, 252. Wiggin’s administrators vs. Pryor’s administrators, 3 Porter, 430. Freeman vs. Peary, 2 Bail. [311]*311394. Northorp vs. Jackson, 13 Wend. 86. Ramsay vs. Johnson, 3 Penn. 293.
It is well known that we, as a Court, are not latitudinarian, hut strict constructionists, as to the great rule of evidence — that where a writing exists, it constitutes the best, if not the exclusive medium of proving the facts to which it relates, and that we have rarely, if ever, yielded to the authority of those dicta, or even reported cases in this country, which would allow matter evinced by written evidence, to be proved orally. Our experience is, that the general results of every relaxation of the rule, have soon demonstrated its impropriety. In this very case, if the writing had been produced, it might have turned out, either that the assignment was made after the certificate of discharge was obtained or prior to the passage of the law, and thus have precluded the idea, that it was done in contemplation of bankruptcy.
[5.] The only remaining ground in the record is, that the Court erred in refusing to grant a new trial, because the verdict was contrary to evidence.
We know not that we have any thing to add to the grounds heretofore taken, and so uniformly and firmly maintained by this Court, especially since the decision in Mays vs. Stroud, 7 Ga. Rep. 269. I would merely remark, that in Goodman vs. Smith, (4 Dev. Law Rep. 450,) the Supreme Court of North Carolina held, that they would not set aside the verdict, although, in their opinion, founded on slight testimony; and Judge Gaston, in delivering the opinion, says, “ Upon the whole, we do not feel ourselves authorized to say, that there was no evidence to be left to the Jury, respecting the fact upon which they found their verdict.”
We consider the recent Act of the General Assembly, forbidding the presiding Judge, to intimate even his opinion as to the facts, and making it a distinct ground of error, as a legislative sanction and indorsement of our efforts to protect the just rights of this co-ordinate branch of the judiciary.
Are we constrained, from an examination of the testimony, to conclude that there was corruption in the Jury box, or that they acted from prejudice against the defendant? John Yarborough testifies, that Flournoy told him, that he sold the execution against Smith to Eliza Parrish, who was, at that time, his woman, for five dollars;. that he gave her the money to buy it with, and that he [312]*312did this “ to prevent Newton (the plaintiff) from catching at him.” The proof, then, is, that he conveyed away all the property he had, except his trunk and wearing apparel, in contemplation of bankruptcy, which is, of itself, a fraud upon the law, and that he averred to the witness, that his object was to prevent his creditor from “ catching at him.” We should not call this slight testimony.
Since the argument of this case, my attention has been called to that section of the Judiciary Act of 1799, which declares, that if the verdict of the Special Jury be given contrary to evidence and the principles of justice and equity, it shall and may be lawful for the presiding Judge to grant a new trial. Prince, 432. We do not suppose, however, that this provision was intended to enlarge the powers of -the Court, or to change the great principles of the Common Law, as to the relative rights and province of the two departments of the judiciary. Such has not been the construction put upon it by the Superior Courts of this State. If a new trial is to be granted merely because, in the opinion of the Court, the weight of evidence is on the other side, trial by Jury is virtually annihilated, and the Court will be substituted for the Jury, in every case, in trying the credibility of testimony and the preponderance of the proof.
Indeed, this idea is expressly negatived by the preceding section, which requires the power to grant new trials, to be exercised “ according to law.” Prince, 432. That is, according to the usages and customs of the English Courts of Common Law.
By the Act of 1823, (Prince, 455,) regulating appeals from the Court of Ordinary, it is declared to be the policy of this Government, to retain the trial by Jury, in all cases in which matters of fact are involved. For the Court, therefore, to undertake to control the Jury, in matters of fact, is obviously to contravene this policy.
I am aware that doubts are entertained by many, at this day, as to this policy. A late popular writer in this country has assailed trial by Jury, with great vehemence, and the conclusion at which he comes is, that the institution itself, so admirable in monarchy, is totally unsuited to a democracy; that the very principle that renders it so safe, where there is a great central power to resist, renders it unsafe in a state of society in which few have sufficient resolution to attempt even to resist popular impulses.
[313]*313Be this as it may, our pathway is plain, until the people, through the Legislature, see fit to move in this matter.
We are asked whether, for an act like this, we will see this citizen deprived of the benefit of his discharge ? And it is certainly true, that the amount of assets was inconsiderable ; still, it was all that he had ; but whether much or little, the law exacted of him the utmost good faith, or upon failure, he should, by way of penalty, forfeit the boon which it conferred. And we will only reiterate, in conclusion, what we have often said before, that in questions of fraud, the Jury are much more likely, from their acquaintance with the parties, the witnesses, and the every-day neighborhood transactions of life, to administer full and complete justice, than the Courts. At any rate, it must be a most glaring case which would induce us to disturb their finding in questions of this character.
The judgment of the Court is, therefore, affirmed upon the first, second and fourth grounds in the bill of exceptions, and reversed upon the third.
Judgment reversed.