Johnson vs. Martin et al.

We dispose of this objection summarily, by saying, that nothing of this kind is required by the law. Cobb, 523.

[2] The next error complained of is, that the Inferior Court held, that counsel for the applicant was entitled to open and conclude the argument before the jury.

The rule of Court, it is true, gives this right to the movant, but this means, when the movant has something to do. In the present case, it is true, Johnson, the debtor moves to take the oath and be discharged. He has no proof to make, and nothing more to do. Now comes in another rule of practice which declares, that in al collateral issues springing out of a cause, the party holding the affirmative shall open and conclude. Is not this that case? An issue of fraud is tendered by the creditors. It is collateral to the main proceeding. It springs out of it, and arrests its progress until disposed of. The creditors hold the affirmative of the issue; for fraud will not be presumed, it must be proven. The burden of proof is upon the creditors; they, therefore, are entitled to open and conclude the argument.

These two points are matters of practice merely; the remaining ground is one of importance-it is one of principle. [3.] The Inferior Court held, that the schedule should only contain the property belonging to the defendant at the time the schedule was filed: and that up to that time the debtor had the right to sell or mortgage his property, provided the transaction was bona fide, and not done fraudulently, to hinder or delay creditors. On the contrary, the Judge of the Superior Court held, that the schedule should contain all the property, money or effects which the debtor possessed at the time of his arrest; and that after that time, he had the right to dispose of his property by sale or otherwise.

With great and sincere deference to the opinion of our clear-headed, sound-minded, and exceedingly sensible brother Cabiness, we cannot concur in his view of the law in this Notwithstanding the arrest and imprisonment of the debtor, we entertain no doubt but that he may, up to the

case.

Johnson vs. Martin et al.

time of filing his schedule, sell or mortgage his property, provided it be not done fraudulently, and to hinder and delay his creditors. Of course, we do not intend to convey the idea that the debtor can dispose of property which is covered by a judgment lien. The fourth section of the Act of 1823, (Cobb, 381,) is relied on by the Judge in support of his opinion. We respectfully submit, that there is nothing in this section to justify the construction put upon it. True, it speaks of rendering a full and fair schedule of the debtor's property. When? Of course, at the time the Act requires the schedule to be filed; and by looking at the oath prescribed by the statute, there can be but little doubt upon this point. What is the oath? Why, that the applicant is not possessed of any real or personal estate, debts, credits or effects, securities or contracts, "other than are contained in the schedule now delivered; and I have not directly or indirectly, since my imprisonment (or arrest) or before, sold, leased, assigned, or otherwise disposed of, or made over in trust for myself or otherwise, any part of my lands, estates, goods, stock, money, securirities or contracts, whereby any money may hereafter become payable, or any real or personal estate, whereby to have or expect any benefit or profit to myself, my wife, my heirs," &c. Cobb, 380. That is, the debtor swears in substance, that the schedule, at the time it is delivered, contains all that the debtor then owned; and that he has not, since his arrest or before, made any fraudulent conveyance or transfer of his property, for his own or his family's benefit, or to defeat the payment of his debts.

In Cheek vs. Dews, 4 Iredell's Law Rep. 284, this identical question was decided, and upon a statute containing an oath, of which ours seems a verbatim transcript; and the Supreme Court of North Carolina put the same construction upon their insolvent debtors' Act that we do. The Lords' Act in England, to be found in a note to Wendell's Blackstone, p. 323, has received a similar exposition.

And it is right unquestionably, not only upon authority,

Johnson vs. Martin et al.

but upon principle. The fi. fa, binds all the debtor's property, from the date of the judgment; the ca. sa. binds nothing but the debtor's body, upon which it is executed, leaving the debtor's property to be disposed of as he pleases; still, when he comes to claim the benefit of the law passed for his relief, the debtor must bring himself within its provisions. And he does this, by swearing that the schedule now delivered, contains a true account, not of what he owned. at the date of his arrest, but in the present tense-of what I am now possessed.

[4 & 5.] If, under the Act of 1818, an insolvent debtor may bona fide sell or mortgage his property, why not, and to the same extent, after his arrest, under the insolvent debtors' Act? Indeed, if the construction put upon the Act of 1818 be right, the construction put by the Circuit Judge upon the Act of 1823, is necessarily wrong; the two adjudications cannot stand together.

The Inferior Court erred in refusing to charge the jury, that if the creditors had shown, that just before the filing of the schedule, the debtor had a considerable quantity of money in his possession, it devolved upon him to account for it.

We think the onus was cast upon the debtor, to show what had become of this money. If he had paid it out, he could readily prove the fact. If the debtor sells property for cash, or to pay a just debt, and one owing at the time of his arrest, all these are affirmative matters, which he can show; and it is incumbent upon him to do so, if he would relieve himself from the inference of fraud.

Of course, with our view of the law, the case should be sent back to the Inferior Court, to abide another trial. And so we rule.

VOL. XXV.-18.

Judgment reversed.

Ector, transferee, vs. Ector.

WALTON ECTOR, transferee, plaintiff in error, vs. W. B. EcTOR, defendant in error.

An execution is issued in 1841-money is collected on it from the sale of de. fendant's property in 1846; in 1848, there is a return of no property; in 1850 money is raised on a fi. fa. in favor of the defendant, and paid over by order of Court to this execution, against him, which is receipted for on the fi. fa. by plaintiff's attorneys.

Held, That the execution is not inoperative under the dormant judgment Act of 1828.

Claim, from Meriwether county. Decided by Judge BULL, February Term, 1858.

In October 1841, George D. Sharp obtained a judgment against Joseph L. Welch for $2,833 00, upon which execution was issued. This was assigned in November, 1841, by George D. Sharp to Walton Ector, for value received. In 1856, a levy of said fi. fa. was made by the Sheriff on certain negroes.

W. B. Ector, as guardian of Elizabeth Johnson, claimed that the negroes so levied on as the property of Welch, did not belong to him, but were the property of the said Elizabeth.

When the case came on for trial, the plaintiff in execution offered in evidence the original execution, and the record from the Superior Court of Crawford county.

The counsel for the claimant objected to the admission of the same in evidence, on the ground that the execution and judgment on which the same was founded, were dormant

The Court sustained the objection, and on motion by the counsel for the claimant, granted an order dismissing the levy; to all of which rulings the plaintiff in execution excepted, and by his bill of exceptions assigned the same as error.

DOUGHERTY and BUCHANAN, for plaintiff in error.

HILL, for defendant in error.

Ector, transferee, vs. Ector.

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

The question in this case is simply this, whether the action of the Court in Crawford county, saved this execution from the operation of the dormant judgment Act.

This Court when the dormant judgment Act first came before it for construction, following the lead of the Judges in convention, departed from the letter of the statute, and interpreted it by its reason and spirit. 2 Kelly 252. The Act declares that "all judgments that have been obtained since the 19th day of December, 1822, and all judgments that may be hereafter rendered in any of the Courts of this State, on which no execution shall be sued out, or which executions, if sued out no return shall be made, by the proper officer, for executing and returning the same, within seven years from the date of the judgment, shall be void, and of no effect."— Cobb 498.

In this case, the execution issued within seven years from the date of the judgment, and a return was made thereon, within seven years from the date of the judgment, by the proper officer executing and returning the same. The words of the Act were then fully complied with. But this Court held in Booth and Williams, that the entry must be made every seven years. Very well: to be consistent with ourselves, it became our duty to construe the Act according to its spirit, and this rule we have uniformly adhered to; commencing with the case, Wiley et al. vs. Kelsey et al., 3 Kelly 274, where we held, that if an execution is not barred at the time it comes into Court to claim money, the statute cannot subsequently attach, pending the litigation respecting the distribution of the fund: and coming down to Worthy vs. Lowry, 19 Ga. R. 517, in which this Court adjudged, that the issuing of a ca. sa. was a sufficient act to keep a judgment from becoming dormant.

We cannot retrace our steps, unless we are prepared to go back to the beginning and decide, as we should have done