The opinion of the court was delivered, by
Agnew, J.There is'much in the history of the case and argument of the plaintiff in error to deserve attention, had it been supported by the record ; but we must be governed by the latter alone. The whole offer contained in the bill of exceptions, when condensed, is this: — to prove that all the assets of the Bank of Commerce went into the hands of Mr. Wright, the vice-president; that no losses were sustained by the bank; and no assets went *295into the hands of the other directors; for the purpose of showing fraud in the confession of the judgment to Mr. Skinner.
How this evidence, standing unconnected with any other fact or circumstance to give it character, could prove fraud in the concoction of the judgment, it is impossible to see. The judgment was confessed, not by Wright, but by Hill, the cashier, under a resolution of the directors. The possession of the assets of the bank by its vice-president certainly was no unnatural or suspicious fact, and a jury from that alone could draw no legal inference of fraud. Had the proposition been to show that the bills of the bank, constituting a portion of the consideration of the judgment, were a part of these assets,'or had any other fact been offered in connection tending to show a fraudulent use of the assets to make up a part of the judgment, no doubt the offer would have been received by the learned judge below.
From the reasons given by him for rejecting the evidence offered, it seems to be clear the offer was accompanied by no such proposition, even orally made. He rejected it because, as it stood naked and unconnected, no inference could be properly drawn from it, and it would be an inquiry foreign to the issue and leading to no proper purpose. While it is true that the evidence in a cause, especially in proof of fraud, proceeds step by step, and a party need not state in a single offer everything he intends to prove, it should appear to the judge that the evidence has some relevancy to the issue trying; and if he is not informed of the connection it has, we cannot say he has committed a clear error in rejecting it. As to all that is said in reference to the competency of the offer to show payment, the answer is found in the fact that the court did not reject it for this purpose, the learned judge expressly stating that it was permissible to the defendant under the issue as formed, to prove that the judgment was paid in whole or in part with the assets of the bank.
We see no error in the answer to the defendant’s second point. The answer is in substance that the whole judgment was not void because of an erroneous excess, but that the excess included without authority is void, and the whole judgment could be held to be void only where the excess is fraudulently included. The language of the general charge on the same subject complained of in the fifth error assigned is substantially the same. The complaints as to the assumption, of facts not proven we cannot test by the evidence. When the allegation is made that there is no evidence to support the charge, it is the duty of the plaintiff in error to furnish in his paper-book the whole evidence given in the court below, properly certified by the judge who tried the cause. In the absence of this, it is impossible for this court to say that facts have been assumed without evidence.
The judgment is affirmed.