68 Ga. 27 | Ga. | 1881
It is the duty of the judge, when he certifies the bill of ■exceptions, to see to it that a plain and unobliterated bill ■of exceptions, distinctly assigning the errors complained ■of, and containing the facts necessary to enable this court to adjudicate the cause, be made out; and if it be untruthful to decline to certify, with his reasons therefor, as provided for in section 4257 of the Code. It seems to us
Besides, if it had been made, the defendant could then have sworn that he did not know it when he took the original affidavit, and why should he not then have been permitted tó show by oath that he did not know it?
There might' have been some trouble to do so in this case, as the ground of the amendment is that the execution did not follow the judgment, which ground was apparent all the.while on the face of the papers; but we must be governed by general rules applicable to all cases, and it will not do to reverse the court on a point not made before it, and which, if made in ordinary cases at least, if not in all cases, could be cured by amendment.
When partnerships assets and individual assets come to be applied to judgments against partners and those against individuals who are members of the partnership, the importance and materiality of the variance become apparent. Sections 1918 and 3154 of our Code provide how the partnership and individual assets shall be applied to creditors of the partnership and of the individual members of the firm. Partnership debts, when joint assets are exhausted, may go upon individual assets; but the individual debts, without regard to dignity as compared with the joint debts, must first be advanced the pro rata amount received on joint debts from joint assets. In this case the judgment is a debt of record against the partnership. It is a joint debt. The execution is a process to enforce, not only this joint debt of the partnership, but an individual debt of each of them. The first is a joint debt — the latter is not only a joint but an individual debt. The variance is wide. It is as material as wide, and therefore fatal.
Judgment affirmed.