
    
      Ex parte D. J. McDonald.
    
      Insolvent Debtors' Act — Practice.
    Where a suggestion sworn to and supported by affidavits is produced, charging an applicant for the benefit of the Insolvent Debtors’ Act with fraud, the Judge cannot, against plaintiff’s consent, discharge the applicant because satisfied with his examination in Court. The suggestion should be filed, and the case submitted to a jury.
    BEFORE WHITNER, J., AT MARION, FALL TERM, I860.
    The report of his Honor, the presiding Judge, is as follows :
    "This was an application for the benefit of the Insolvent Debtors’ Act. Certain creditors appeared by their attorneys, and objected to bis discharge; submitting affidavits of tbe contestant, T. W. Godbold, and also of Asa Godbold and Isaiab Wall, on which was founded a motion for leave to file a suggestion. A prima facie case of fraud was not made to my satisfaction, and the debtor, McDonald, was therefore examined fully, touching all matters referred to in tbe affidavits and various specifications in tbe suggestions tendered afterwards. I thought this examination entirely satisfactory, and well calculated to confirm, impressions that the allegations of contestant were founded in mistake.
    “ The debtor was discharged.”
    Tbe relators, Thomas W. Godbold and others, appealed, and now renewed tbeir motion for leave to file a suggestion contesting the application of the petitioner for the benefit of the Insolvent Debtors’ Act, on tbe grounds:
    1. Because tbe affidavits read in tbe bearing of tbe Court disclosed a prima facie case of fraud sufficient for tbe Court to have given relators leave to file tbeir suggestion.
    
      2. Because tbe suggestion sworn to and tendered contains clear and specific charges of fraud, and- his Honor should have granted leave to file it, in order that the matter contained in it might have been submitted to a jury.
    
      Phillips, Evans, for appellants,
    cited Baker, Johnson & Go. vs. Bushnell, 1 McM. 68; Sherman & Bebruhl vs. Barrett, 1 McM. 161; Blease vs. Farrow, 9 Eich. 49 ; Ex parte Maffit, 11 Eich. 361.
    
      Spain, contra.
   The opinion of the Court was delivered by

O’Neall, C. J.

This was an application for discharge under the Insolvent Debtors’ Act, in which the creditor, by affidavits and by his suggestion sworn to, charges fraud in the applicant’s schedule.

The examination of the defendant in open Court, the Judge thought, explained the matter, and he granted the discharge against the claim of the creditor to have the question tried by a jury. This is the usual practice, and was recognized in Baker, Johnson & Co. vs. Bushnell, 1 McM. 60. Under the Act of 1836, a creditor has the right to-examine an applicant for the benefit of the Insolvent Debtors’ Act before filing a suggestion of fraud, as was decided in Rosser vs. May, 1 Rich. 62.

In that case it is said, at page 64, In. practice, however,when a prisoner has been accused of frauds Zilstra’s case has been followed, and a suggestion is filed setting- out the particulars in which fraud is alleged, and thereupon an issue is made up, and tried by a jury.”

This course has been so long and steadily followed that-we do not feel ourselves warranted in allowing any change.

It is therefore ordered that a new trial be granted.-

Johnstone, J., concurred.

Motion granted.  