delivered the opinion of the court. In this case opposition was made to the homologation of the proceedings, which *299took place before the notary, in pursuance of an order of the court below; founded on two grounds:

1. That the insolvent has not set forth any losses.

2. That he has not presented any books of accounts.

This opposition being overruled by the district court, the opposing creditor moved for a new trial, and having failed in that motion, took the present appeal.

We are of opinion that the judgment of the court below was correct in setting aside the opposition of the appellant, as not being supportable on the grounds by him assumed. It is true that the unfortunate debtor in his petition, alleges no loss except that of his credit, or confidence reposed in him by his mercantile friends: His whole capital seems to have been exclusively his credit or the faith which others had in his fidelity; which, although very unsubstantial, has often been productive of great gains, and is certainly considered by merchants as a very important means of operation.

The section of the act of 1817, which requires an insolvent to present his books of *300accounts, is applicable only to such persons as keep books of that kind, and who, from a multiplicity of business, must, of necessity, keep them. The commercial transactions of the plaintiff in the present case, appear to have been so limited, that they may have been placed in a fair and just light without the aid of books, or any great exertion of memory.

The affidavit of the opposing creditor in support of his motion for a new trial, as based on the discovery of new evidence, charges on the insolvent a crime of a very serious nature. It contains an accusation, which, considered solely in relation to the offence alleged, ought not lightly to be made, or lightly to be passed over when made; being nothing less than an accusation of forgery. But considered in relation to the opponent’s application for a new trial, we are of opinion that it is entitled to little weight. The facts disclosed in the affidavit, are such as might have been discovered and the evidence to sustain them, by ordinary diligence on the part of the appellant, if he had obeyed the summons which called the creditors together, and examined the schedule of the insolvent.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.