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Bush vs. Lester et al.

signee, or who have proved their claims in bankruptcy, they can be resisted. If others come who have not done so, they can enforce their liens or not, according as they might or might not have enforced them against the same property if it had been set apart under the state law, in the method prescribed by that law, without any proceeding in bankruptcy whatever. Exemption granted in bankruptcy resting on the state law has precisely the same effect against prior liens as exemption granted ont of bankruptcy, or by the instrumentalities appointed by the state. In respect to the latter, it is well settled by repeated rulings, that a creditor having a lien that overrides the exemption may assert it without contesting the right with the debtor on the hearing of his application : 44 Georgia Reports, 14, 663; 47 Ibid., 453; 39 Ibid., 386 ; 49 Ibid., 380; 50 Ibid., 81, 626; 51 Ibid., 460; Wofford vs. Gaines, 53 Ibid., 485. In 52 Georgia Reports, 605, a mortgagee was allowed to foreclose after the property mortgaged was set apart to the mortgagor, in bankruptcy, as exempt. The bankrupt act preserves all liens alike, and the debtor's discharge is granted with that implied qualification. What each lien will bind (beyond what is disengaged from it by the act without reference to the state law) depends upon the exemption laws of the state.

3. According to the laws of this state the lien of a judgment rendered in 1867 will prevail (where there is no bankruptcy) over the enlarged exemptions provided for by the constitution of 1868. This proposition is not now disputed; and if it were, the cases already cited in this opinion on other points, would place it beyond question. The principle of uniformity which the bankrupt act has observed with regard to the main bulk of its exemptions, is to adopt the laws of the several states, with a maximum limit to the amount exempted by the laws in force in 1871. There was, in 1871, no law of this state which accorded to judgment debtors, on debts dating in 1867, these large exemptions. We hold with the chief justice of the United States (in re Daniel Deckert, 10 B. Reg. 1,) that the amending act of March 3, 1873, was

Bush vs. Lester et al.

unsuccessful in making unconstitutional provisions in state laws a part of the system of bankruptcy: See, also, the opinion of BALLARD, judge, in 13 B. Reg., 183. It was competent for congress either to have passed one uniform original law of exemption, irrespective of state laws, or to have adopted the latter as they were of force, or might become of force, within the several states; but it was not competent, we think, for it to impart to one or all of the latter, a force in the courts of the United States which, as solemnly decided by the supreme court of that government, they do not have, never did have, and never can have in the domestic tribunals of the states which enacted them. As to debts contracted prior to July, 1868, the true and only law of Georgia, measuring exemptions, is the Code. That was the law in force here in 1871; and no other exemption law of the state of Georgia was then operative upon the class of debts in question, and has not been since, and never can be. Without some law, either state or federal, there can be no exemption, even in bankruptcy. The constitution of 1868 was, as to debts older than itself, no state law in 1871 and is none now. Congress, by engrafting it upon the bankruptcy system, made it federal law so far as it was state law, and no further. Not the words of it but the legal essence of it passed into the statutes of the United States. It is the same law in them as out of them; and ought to receive the same construction and have the same effect. The only change is, that since its adoption by congress it is the law of two governments instead of one; and this principle of duplication is the principle of uniformity which saves the present bankruptcy system from being unconstitutional.

We affirm the judgment ordering the fund to be paid to the older liep.

Spencer et al. vs. The Georgia Railroad and Banking Company.

55 584 60 324 61 338 64 560

JOSEPH J. SPENCER et al., plaintiffs in error, vs. The GEOR

GIA RAILROAD AND BANKING COMPANY, defendant in

error.

When the bill of exceptions does not embody the brief of the evidence, but

refers to it as in the record, it must appear, either from the bill of exceptions or the transcript of the record, that the brief of evidence was approved by the court,

New trial. Practice in the Supreme Court. January Term, 1876.

Reported in the opinion.
J. J. FLOYD; J. V. Woodson, for plaintiffs in error.

CLARK & PACE, for defendant.

JACKSON, Judge.

The defendant in error moved to dismiss the bill of exceptions on the ground that the evidence was not embodied in it, and though it referred to the evidence as embodied in the record, it nowhere appeared, either in the bill of exceptions or in the transcript of the record, that the brief of the evidence was approved by the court. The act of 1870, (see Code, section 4253,) enacts that the brief of the evidence, filed and approved according to law, is made part of the record, and if referred to in the bill of exceptions, need not be actually set out in the bill of exceptions, which before that act had to be done. It will be seen that the act requires the brief to be approved as well as filed. The filing is a mere act of the clerk, the approval is the act of the court. Certainly the court is entitled to say what evidence was before it when it ruled in the case. In this case the court has not been heard, so far as the bill of exceptions or record discloses to us, and under the authority of Massey vs. Pitts, Cook & Company, 48 Georgia Reports, 124, as well as the letter of the act of 1870, and its spirit and sense, we feel constrained, reluctantly always, to dismiss the bill of exceptions. While we have not

Moreman vs. Neal.

examined the grounds of error with as much particularity and care as we should have done if the motion to dismiss had not controlled the case, yet, from a cursory view of the questions made, we would be inclined to affirm the judgment on the merits, and therefore apply the well settled rule of the court to dismiss such a bill of exceptions with less reluctance.

Bill of exceptions dismissed.

John S. MOREMAN, plaintiff in error, vs. John NEAL, de

fendant in error.

(JACKSON, Judge, having been of counsel in this case, did not preside.)

In January, 1858, plaintiff obtained judgment against defendant and the exe

cution issued thereon, was levied on December ist, 1868. Defendant in fr. fa, owned the property levied on until September, 1863, when he sold to a third person who took possession and so remained until 1866, when he sold to claimant who has since been in possession. On June ist, 1869, claimant filed an affidavit of illegality to the aforesaid levy, availing himself of the provisions of the relief act of 1868. What became of this affidavit, the record fails to disclose, On December 6th, 1873, he filed his

claim, Held, that the property was subject.

Statute of limitations. Judgments. Before Judge WRIGHT. Dougherty Superior Court. April Term, 1875.

Reported in the decision.

VASON & DAVIS; R. F. Lyon, for plaintiff in error.

L. P. D. WARREN, for defendant.

WARNER, Chief Justice.

This was a claim case which was submitted to the judgment of the court without the intervention of a jury, upon the following agreed statement of facts, as appears from the record. In January, 1858, the plaintiff obtained a judgment against

Vol. LV, 38.

Noyes & Company vs. Jenkins. the defendant, Durham, on which an execution issued, and was levied on the 1st of December, 1868, upon two city lots in the city of Albany, as the property of the defendant, Durham, whereon John S. Moreman then lived. On the 1st of June, 1869, Moreman, the present claimant, interposed an affidavit under the relief act in which he alleged several reasons why the property should not be sold as the property of Durham. What disposition was made of that affidavit, the record does not disclose, but on the 6th of December, 1873, Moreman interposed his claim to the property. It also appears that Durham, the defendant in fi

. fa., owned the property until September, 1863, when he sold it to Drinkwater, who sold it to Moreman, the claimant, in 1866; triat Drinkwater took possession at the time of his purchase and remained in possession until he sold to Moreman, who then went into possession, and remained in possession up to the time of trial. The court decided that under the law and facts of the case, the property was subject to the plaintiff's execution; whereupon the claimant excepted.

We find no error in the judgment of the court on the statement of facts disclosed in the record.

Let the judgment of the court below be affirmed.

J. S. NoYES & COMPANY, plaintiffs in error, vs. JAMES L.

JENKINS, defendant in error.

55 586) 61 271 65 646

55 586 112 2002

The sale of the first five bales of cotton of a crop of the present year by a

bill of sale dated the gth February, 1874, passes no title to the vendee, the seed not being planted at that season of the year in the county. That which has no actual or potential existence is not the subject of bargain and sale. Until the crop be actually growing, or at least until the seed be planted, the crop has no existence, actual or potential, and no part of it can be sold so as to pass the title, and authorize a recovery in trover,

Sale. Title. Crops. Before Judge BUCHANAN. Polk Superior Court. August Term, 1875.

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