
    
      Augustus Morein vs. J. R. Solomons.
    
    It is within the discretion of the Court to arrest the examination of a witness, which is causelessly protracted. Such discretion should, however, he cautiously and soundly exercised.
    where the Court helow overruled a question as unnecessary and improper, a new trial was refused — the question, though proper, having been repeatedly answered by the witness before.
    Irrelevant question overruled, .and new trial refused.
    At the trial of an issue upon a suggestion of fraud under insolvent debtor’s Act, motion by creditor for leave to amend his suggestion, by charging that effects had come to the possession of the applicant since the making up of the issue — knowledge of which had come to the creditor only during the trial — refused.
    
      J. D., deceased, was indebted to S. by note for $1,000: — Held, that the oral declarations of the deceased were inadmissible to prove that the note, though nominally payable to S., was really for the benefit of defendant, — it not appearing that such declarations wore against the interest of the declarant, or that he possessed competent knowledge of the facts, or that it was his duty to know them.
    A witness who had been already examined in the cause, but who was not under subpoena, . declined again to go upon tho stand, and the presiding Judge refused to compel him. New trial, on that ground, refused.
    
      In the City Court of Charleston, May Term, 1853.
    The defendant was an applicant for the benefit of the insolvent debtor’s Act; and this was an issue made up on a suggestion charging that his schedule was false and fraudulent. So much of the report of his Honor, the Recorder, as it is deemed material to publish, is as follows:
    “ This was a suggestion of fraud. The trial occupied almost entirely the third week of the May Term of the Court. There was a vast amount of testimony given on both sides, much of it utterly conflicting and irreconcilable. In the course of the trial, many questions were raised on both sides as to the admissibility or competency of testimony. So far as the Court is concerned in the decision of such questions, the notice of appeal of the relator will present them, in the way of review, for the consideration of the Court of Appeals.
    “ It will appear that in the grounds of appeal, taken by the relator, no complaint is made of the instructions given by the Judge, in his charge to the jury. The jury found a verdict of not guilty.
    “ It would be, perhaps, proper to direct my report, in the first place, to the specific grounds of the appeal, so far as they require, or would seem to call for particular consideration in regard to the supposed errors of the Judge, during the course of the trial; and, afterwards, to report all the evidence in full, which was given. It will be observed, that there are two several notices of appeal in this case, both of which are hereto attached — both of which were duly served upon me. As to the first notice,
    “ 1st ground. 1 That his Honor erred in ruling that the witness, Dr. B. A. Rodrigues, was not bound to answer the question put by relator’s counsel, as to whether a certain written statement, made by the defendant, and in his own handwriting, and produced and proved at the trial, (and confirmed by another written statement of defendant, alike produced and proved,) in relation to the partnership of-the witness and defendant, as alleged in the suggestion, was true or false, and in sustaining the said witness in his refusal to answer the said question, the said witness claiming aloud the protection of the Court against the attempt of the relator’s counsel to make him say his nephew was guilty of falsehood and perjury, or of fraud and falsehood.'
    
    
      “ Allowing the most full latitude to the well-known zeal of the relator’s counsel in behalf of his client, it did appear to me that the Court had something to say in the matter; and that, without denying the most liberal concession to the exercise of the right of the relator in cross-examination, some questions might possibly be put, either in matter or form, upon the answering of which, if objected to, the Judge might interpose a veto.
    “ Both as to matter and form, I regarded the question as unnecessary and improper. The witness had said over and over again, that the agreement of partnership, stated in the letter of the defendant, as having been entered into or projected between the witness, the defendant, and DeLange, was wholly unauthorized by him; without any shadow of foundation as far as he was concerned: that he never, in any way, sanctioned or became a party to any such supposed agreement.
    
    “ The relator’s counsel (not being satisfied with this repeated declaration of the witness) insisted that he (the witness) should, face to face, (before the jury,) charge his nephew “with fraud and perjury, or fraud and falsehood.” I did not perceive, clearly, and therefore did not recognize the right of counsel to insist upon (either in regard to the witness or the Court) the absolute and unlimited right to have any and every question proposed by him, answered by the witness. I thought all the party could require from the witness had been effected in the answers he had repeatedly given upon this subject; in saying, explicitly, that the agreement, alleged in the defendant’s letter, was entirely without his knowledge, authority, or sanction; that he had never been a party to such an agreement; and, as far as he was concerned, no such agreement ever existed.
    
      “ 2d ground. ‘ That his Honor erred in ruling that relator’s counsel had no right to put to, or have answered by the witness, Rodrigues, the question whether he, the said Rodrigues, (an Israelite who had taken the oath of a witness in this case, with his hat off,) had not himself, as a Trustee of the Hasel-street congregation, made charges against the Rev. Mr.-, the minister of the congregation of the said Synagogue, because he had suffered the children of that congregation to stand with heads uncovered, or with their hats off, when he lectured or addressed them on a certain occasion.’
    
      “ The object of this question seemed to be, by a very remote connection, to show that the witness sworn, in the common form and mode in which witnesses are sworn in our courts, did not, according to his religious belief, (or could not,) consider himself bound to tell the truth. The witness had been sworn in the usual/orm, on the part of the defendant; the form had not been objected to by the relator, in limine, which would have been the proper time, if there had been anything essential in the form. It was not until after his cross-examination by the relator, and towards its close, that the matter was at all touched, and, although some questions were allowed to be askeduthe witness, the answers to which showed that the witness considered himself under the solemn obligation of an oath, although he had sworn upon the Old Testament, uncovered or with his hat off) yet the specific question, about the reproach to the pastor in regard to a religious observance by the boys, appeared to me to be entirely irrelevant. Inasmuch, as although the boys should have heard the lecture of the Jewish rabbi, with their hats off, non constat, but a Jew taking an oath in a court of justice, in a Christian country, in the usual form, might not, nevertheless, be regarded as under the highest and well-recognized obligation to tell the truth. It is proper to add, perhaps, in this connection, that the witness, upon being examined on this subject, testified that the practice of the Jews was variant; that some swore uncovered, or with their hats off, while others swore with their hats on, or covered in some way.
    
    “ 3d ground. ‘ That his Honor erred in refusing permission to relator to amend his suggestion, by the addition to, or insertion of, a suitable ground or specification arising out of the discovery or disclosure on the trial, and then for the first time, of the fact, that within three months of the day of trial, the defendant had received, as executor of Jonas L. DeLange, deceased, a large sum of money, as proceeds of the sales of real and personal estate of testator, to an amount exceeding four thousand three hundred dollars, ($4,300,) on which he was entitled to, and had actually received, in whole or in part, commissions as executor aforesaid, to the amount of at least two hundred and fifteen dollars, ($215,) which he had fraudulently concealed, withheld, and had not inserted in his schedule.’’
    
    “Ihad supposed that this special matter had been properly provided for by the Court, and with the entire approbation of the relator’s counsel.
    “ The issue, under the suggestion of fraud, I was called upon to submit to the jury, turned entirely (as it needs must have done) upon the truth or falsehood of the schedule of the defendant at the time it was filed.
    
    “ The issue was made up on this basis. I, of course, rejected the application to insert, at the time of trial, a matter alleged to have occurred since the filing of the schedule, and the joining of the issue, as a part of the issue made by the pleadings — to try which, the jury were empannelled.
    “I suggested, however, that whatever the verdict of the jury might-be upon that issue, the Court would take care that any interest or property which might have devolved upon the applicant since the filing of his schedule, or since the issue joined upon the suggestion of fraud, before the Court should be called upon to pronounce his final discharge, should be considered, and the party required to account for and assign this new acquisition. This, I stated, might possibly lead to a new suggestion of fraud, and a new issue. In connection with this matter, it is proper to state that, on the part of the defendant (Solomons), this motion was made, that the defendant be allowed to assign ‘ all his right to commission on moneys received and paid away as executor of the estate, will and testament of Jonas L. De-Lange, late of Charleston, deceased.’ This was objected to on the part of the relator, and as involving a subsequent inquiry, and not connected with it.
    “Let us now examine the additional grounds of appeal embraced in the second notice:
    
      “ 1. ‘ That his Honor ruled that it was incompetent for plaintiff’s counsel to question a witness whether the deceased, Jonas L. DeLange, had not told witness on his deathbed, or near the time of his death, that he owed the defendant the sum of one thousand dollars, or had given a note for one thousand dollars, nominally payable to defendant’s mother, but really for the benefit of the defendant’
    “ I cannot say in what precise stage of this unfortunate controversy this evidence, as suggested, was proposed to be offered. The testimony, however, hereto annexed, will show that beyond all controversy, the supposed debt was really and bona fide due to Mrs. Solomons, living in Sumter district, growing out of a loan to that amount to Jonas L. DeLange.
    
    
      “ The 2d ground involves a mere question of fact, which, having been fairly submitted to the jury, and decided by them, I may discharge myself from any special consideration, as the entire testimony is attached to my report.
    “ The 3d ground in the additional and second notice of appeal calls for some special consideration.
    “ It is as follows: £ Because his Honor refused, on requisition of relator’s counsel, to detain Daniel Horlbeck, Esq., a witness already sworn and examined in a previous part of the case, to testify further in the case, on the ground that said Horl-beck was not under subpoena.’
    
    
      “ Mr. Horlbeck had been called and examined on the part of the relator’s counsel on the day previous. I will not now say anything of the very rigorous examination he underwent. It lasted for some hours [I may say two at least, in order to be grammatically correct]. On the next day, accidentally as it were, happening to be in Court, he was called upon by the relator’s counsel to go upon the stand. Mr. Horlbeck resisted, and said he was under no subpoena; and I did not require him, under any power or process of the Court, to remain in Court and give his testimony. The question remains, whether I should or not ■ have required Mr. Horlbeck, under the compulsory process of the Court, to have remained and given his testimony. I have this to say in the matter. I was by no means satisfied of the power claimed for the Court, by a mere order, to compel one then present, yet not under subpoena, to take the witness’s stand, and give testimony. There may be authority for such power, though I have seen none. Still, if the power exists, its exercise must depend somewhat on the discretion of the Court, and would hardly apply to a case where the party seeking the testimony has ample time and opportunity to compel, by the regular and usual process of the Court, the attendance of the witness.
    “ The remaining grounds in the two several notices of appeal call in question the correctness of the verdict found by the jury, in regard to which I am neither called upon to form or express any opinion.”
    A motion for a new trial was now made upon the grounds stated in the report, and upon other grounds questioning the correctness of the verdict.
    Yeadon, for appellant.
    
      Seymour, Memminger, contra.
   The opinion of the' Court was delivered by

WhitNee, J.

As this case implicates deeply many who have figured in it, there has been a becoming zeal on the part of those engaged in its prosecution and defence. A full understanding can only be had of its merits by a reference to the report of the honorable Recorder. An attempt at condensation on my part, might do injustice, and I am equally certain an incorporation of the entire facts, in the judgment I am to pronounce, would be more than the occasion requires.

The first and second grounds of appeal complain of the restraint imposed at the trial below on the cross-examination of Dr. Rodrigues. The truth of certain written statements, traced to the hand of the defendant, was a prominent subject of inquiry in the issue pending. The witness was an alleged party to the agreement purporting to be set out, and fastidiousness on his part should have excited distrust rather than have secured confidence. As a distinct proposition, therefore, no well-founded objection to such a question as is alleged in the ground of appeal, is perceived. The precise interrogatory is not set out in the report in terms. The witness appealed to the Court in the form in which it was put, and the Recorder states that the counsel insisted the witness should, face to face, charge his nephew with fraud and perjury, or fraud and falsehood.” The question propounded has been since furnished to the Court, and is in the form presented in the ground. It is not to be disguised that the circumstances of this case well justified a searching investigation on this point. In the case before us, we are informed that much latitude was allowed, and that the facts in contradiction of the statement had been testified to fully and repeatedly and in a variety of forms, by .the witness. Whilst it is within the experience of every Judge that the examination of witnesses is often causelessly protracted, however delicate the responsibility, his discretion must be recognized and occasionally exercised in arresting such examination. The discretion should be cautiously and soundly exercised. The Court that reviews cannot always readily and fully ascertain the necessity or propriety of such interposition. Looking to the report of the case, we are not warranted in the conclusion that light has been ex-eluded, or that justice has suffered, because of an exercise of discretion in the instance complained of.

This Court concurs with the Recorder as to the irrelevancy of the inquiry propounded in reference to an alleged charge by the witness against the reverend gentleman in charge of the Hasel-street congregation, because at the synagogue children were suffered to stand with heads uncovered on occasions when lectured or addressed by him. Whether such charge had been made or not, and whether such a course was in conformity with Jewish tenets and customs or not, could in no way affect any matter then in issue, or the validity of the oath which had been administered, though the witness was an Israelite, and had taken the oath in this instance, his head being uncovered. Neither would it follow, that his credibility had been impaired, however these facts mght have been found.

The third ground of appeal claims the right to amend the suggestion by the addition of new matter arising since the schedule and suggestion were filed, and discovered, as alleged, in the progress of the trial. The issue made by the pleadings was the matter with which the jury was charged, and it would be an anomaly in practice to permit such amendments from day to day, as a trial may progress. Such an order must have carried with it the right to amend the schedule, followed with an amendment of the plea, and an adjournment over of the case for a reasonable time to provide testimony. At most this could only be regarded as an application to the discretion of the Recorder to withdraw the case from the jury, and by proper amendment prepare for trial on a new state of pleading. As the rights of the party would have been fully protected by the purpose intimated by the Recorder, before any order for discharge would have been granted, coupled with the fact that such application to amend should at least have been made before the trial was entered upon, or upon a clear showing of the recent disclosure and the prejudice that must result by proceeding with the trial, the refusal by the Recorder of leave to amend the suggestion under the circumstances, was entirely proper.

Next in the order most properly to be considered, are the “ additional grounds of appeal.”

The first of these grounds refers to the question involved in the fifth ground in the suggestion, whether a certain debt owed by one Jonas L. DeLange, and secured by a note drawn in favor of Mrs. R. Solomons, the mother of defendant, was in fact a debt due to the defendant. Jonas L. DeLange, the debtor, was dead, and the offer, the ground informs us, was made to prove the declaration of the deceased during his last illness, that he owed the defendant one thousand dollars, or had given a note for one thousand dollars, nominally payable to defendant’s mother, but really for the benefit of the defendant, which was ruled incompetent. The notice taken by the Recorder of this ground is, that although not able to say at what precise stage of this controversy the evidence was proposed to be offered, yet that the testimony annexed will show that, beyond all controversy, the supposed debt was really and bona fide due to Mrs. Solomons, growing out of a loan to that amount to Jonas L. DeLange.” The question to be met is the admissibility of the evidence, and not its credibility. The death of DeLange and his indebtedness by note drawn in favor of Mrs. Solomons, were facts conceded throughout. This was the allegation of the plaintiff in his suggestion, followed with the proof on his part that the money was paid by defendant as executor of deceased, by check, through Wineman to Mrs. Solomons, and equally claimed to be true by the defendant. Was it competent to prove anjr declaration of deceased, “ that the note, though nominally payable to defendant’s mother, was really for the benefit of the defendant.” It is due to plaintiff’s counsel to state, that although alleged to have been made on his deathbed, it was not offered as a dying declaration. If admitted and proved, the circumstance would have been relied on as entitling it-to additional credit. It is urged, that the testimony offered is within a well recognized exception to the rule rejecting hearsay evidence. That the declaration or statements of facts by a third person, whether oral or written, are often admissible in consequence of the death of the person making them, when they would not otherwise be allowed, does not admit of a question. The exception is founded in necessity, and has the sanction of reason as well as the authority of many adjudged cases. Certain preliminary facts must first appear to render them admissible. These are enumerated, as collected from adjudged cases, in 1 Green. Ev. § 147. The tests especially applicable to the question now presented are, whether the declarations were at variance with the interest of the declarant, and from the subject-matter, whether it appeared that he possessed competent knowledge of the facts, or that it was duty to know them. The genuineness of the note and the actual indebtedness of the deceased, were not the questions made. Whether the money loaned was the property of the mother or the son, and whether the debt was nominally or bona fide due to the mother, are questions outside of any interest the declarant was shown to have had and a fact about which he might or not possess certain and therefore competent knowledge. A declaration on this point, if made at all, may well have been derived from the information of others, or have been the result of suspicion, or an opinion from circumstances, a full disclosure of which may have been indispensable to a just conclusion. It is true, that the exception has been extended in reference to another class of evidence exemplified in certain book entries of tradesmen and others in the regular course of business, and in documentary evidence of various kinds. In 2 Smith’s Lead. Cases 183, et seq., this distinction is discussed. The analogy does not hold in the present instance, and perhaps no case would afford a better illustration of the propriety of adhering to the rule. We are of opinion that this ground cannot avail.

The third additional ground is, that the Recorder refused to detain a witness, who had been already sworn and examined, to testify further in the case, the witness not being under subpoena.

The Recorder, it would seem by the report, was neither satisfied of his power to compel the witness to remain, nor was he disposed, under the special circumstances, to exercise it in the case. Neither would have deprived the party of the testimony in reply, if he had thought proper to resort to the usual process by subpmna, which was accessible, and must have been available. The witness was a gentleman of character and official station, and there has not been the slightest intimation of a purpose on his part, or of an apprehension on the part of the appellant, that the witness would evade the process of the Court, or that he, in any way, designed to defeat or hinder the administration of justice. That the Recorder declined any order in the premises, under the circumstances, therefore, cannot avail the appellant on a motion for a new trial. A passing remark may be proper to avoid misapprehension arising out of the intimation of the Recorder. In the case made where the witness presents himself on call arid submits to an examination, he at least may be well regarded as having waived all preliminary questions on this subject. (Questions, as they arise, will be better settled according to attendant circumstances, touching the power of a Judge, by a simple order, to require the presence of a pérson to testify, or being present to give testimony. Whilst the rights of the citizen are at all times to be respected, the due administration of justice, and especially in the investigation of crime, may often require a prompt and efficient exercise of judicial authority.

The remaining grounds refer to the verdict of the jury on the facts submitted. He who reads the brief will not only be impressed, but shocked with the painful conflict in the testimony. In a contest eliciting such disclosures, success secures a miserable triumph. The bitterness which characterizes it can only be accounted for, because it has assumed somewhat a family quarrel. Neither age, sex, nor kindred have been spared; and truly it may be said, that the zeal of this house has well nigh consumed it. The duty I now have to perform does not require a review of the evidence, and might not justify an expression of my own, or the opinion of at least a majority of my brethren, as to any supposed preponderance. Pacts peculiarly belong to the jury, and we know of no case in which a new trial has been. awarded, on the civil side of the Court at least, where there has been such contrariety of evidence.

The motion for a new trial is dismissed.

O’Neall, Ward law, Witheiis, Glover and Munro, JJ., concurred.

Motion dismissed.  