
    Wiley, Banks & Co. vs. W. H. Smith.
    The commissioner of special bail had allowed the applicant for the prison bound’s Act to amend his schedule, but at the trial he failed to explain the matter, and the effect of the amendment, to the jury: — New trial for this reason granted — the verdict being against the applicant.
    The commissioner was examined as a witness, and while testifying was stopped by one of the counsel and testified no further: — Held, that this was improper.
    BEFORE D. HOKE, COMMISSIONER OF SPECIAL BAIL, AT GREENYILLE, MARCH, 1855.
    The report of the Commissioner is as follows:
    “ The note upon which the writ was founded under which the defendant was arrested, was offered in evidence. — W. B. Smith, defendant, sworn. — Says he gave his ledger, which he kept while merchandizing, to John Dill to pay him the amount said Dill was liable for as his'security. I delivered the ledger to Dill after the writ was issued. Unable to tell how many accounts were on this ledger unsettled. Never kept an account of goods sold as to the total amount. Purchased goods from various merchants, amounting nearly to one thousand dollars. Sold but little for cash. Bought horses, and traded in that way. Sales on books not counted up. Can’t tell the amount. Sold Elias Dill about nine hundred pounds of bacon at nine cents per pound. Sold him tobacco, one hundred and fifty pounds, at thirty-five cents; a small amount at twenty-two' cents, and at twelve and a half cents per pound, also a remnant of goods, and a buggy, conditionally.
    “ Gross-examined. — After Dill, my security, had paid himself, the balance to be rendered to the plaintiffs, Wiley, Banks, & Co., to be applied to the notes they hold against me for the amount collected on my ledger which I had assigned to him. Sold goods on credit. , Changed debts for horses.
    “ John Campbell, sworn. Says, I arrested the defendant, W. B. Smith, as deputy sheriff. Made search for Smith repeatedly, and failed to arrest him. r I eventually arrested him. After the defendant was arrested, Smith wished to have a secret talk with John Barnett, which I allowed. Smith did not wúsh to gp to jail. Stated he had plenty of money to pay his way in jail, provided he was not well treated. Witness asked defendant how much money he had. Defendant answered, no great deal. Witness said to defendant, it has been reported you have eight hundred dollars, defendant replied it was not so. Pie had but little money. I saw defendant have fifteen dollars at Crotwell’s store when he paid for some whiskey. I had no conversation with defendant relative to the money he gave Barnett. I told defendant he would have to render all his money. Defendant said, eertainly not, it would be hard to do so.
    “ Cross-examined. — I nevef saw defendant have more than fifteen dollars.
    “ William Campbell, sworn. — Says I saw defendant have money at Farmers. I do not know how much precisely at that time. I saw two or three ten dollar bills and a two dollar bill, and several bills in his bundle. I thought there might be two hundred dollars. Could not say how much.
    
      “ Cross-examined. — I only saw two or three ten dollar bills and a two dollar bill. I cannot say, with any certainty, how much money he had at the time I saw it. Never heard defendant say how much money he had. Saw the money the day he was arrested.
    “ Grodshaw, sworn. — And says defendant came to Crotwell’s store, and bought one quart of whiskey. Gave me a five dollar bill to have changed to pay for the whiskey. I saw a roll of money in defendant’s hands. Looked like there might be one hundred dollars or fifty dollars.
    
      
      “ Cross-examined. — Not certain how much money defendant had. He had a roll. Cannot swear he had fifty dollars. Looked like he had more. I saw ten dollars in the roll from which it was taken. The roll contained more money.
    “ John Barnett, sworn. — Defendant’s witness. Says Smith gave me his pocket-book when he was arrested by Campbell. Counted his money, some four weeks before he was arrested, which was eighty-four dollars the pocket-book contained. Counted the money after defendant was confined in jail, in the presence of McDaniel, jailor, and the amount in the pocketbook was seventy-two dollars.
    “ Cross-examined. — Talked with Smith while in the custody of Campbell. Grave me his pocket-book out of which he, defendant, took fifteen dollars. Wrote to me to bring his pocket-book down to the court-house, and not to open the pocket-book until it was opened in the presence of the sheriff; all the money I knew of the defendant having.
    
      “ J). Sohe, Commissioner of special hail, sworn, and says, defendant petitioned him praying for the benefit of the prison bounds on mesne process. Filed his schedule. Rule posted.
    “ After defendant filed his schedule, he received notice from plaintiff’s attorney that 'defendant’s schedule would be contested. Accordingly, a jury was summoned, and day assigned to try the validity of said schedule, suggestion filed by plaintiff’s attorney of false return, &c. After the suggestion was filed, defendant amended his schedule, but not until defendant gave the commissioner satisfactory reason for doing so, the commissioner being fully satisfied in his opinion that defendant had the right to amend where the plaintiff’s rights were not prejudiced, and consequently allowed the defendant the privilege to do so. Smith told commissioner he had rendered all the property and money he had.
    “ Cross-examined. — I was satisfied of the legality of allowing defendant to amend bis schedule. Defendant gave reason why be did not Ténder in bis first schedule all bis effects. I am willing to state the reasons defendant gave for not rendering all in bis first schedule, (objected to by counsel for plaintiffs,) defendant, remarked that all monies remaining after his security, Dill, was indemnified, shpuld be applied to plaintiffs’ claim as be did not wish to relieve himself from the payment of the plaintiffs’ claim against him.”
    The following verdict was returned by the jury :
    We find the defendant, W. B. Smith, guilty of fraud in making a false return of his effects, and not guilty of undue preference in the payment of other creditors.
    The defendant appealed on the grounds :
    1. Because the jury erred in deciding that the Commissioner of Special Bail had no right to amend the applicant’s schedule.
    2. Because the jury founded their verdict on applicant’s schedule, as filed by him on the 24th February, 1855, when they should have tried the issue in reference to his schedule as it stood when amended.
    3. Because the verdict of the jury was not supported by the testimony.
    Hasley, for appellant.
    
      JElford, contra.
   The opinion of the Court was delivered by

Munro, J.

It is by no means our intention to review the testimony adduced upon the trial of this case, with the view to discover whether or no the jury by their verdict have reached a conclusion that is sustained by the proof. This was a matter within tbeir exclusive province, and one which we have no desire to invade.

There are several matters, however, disclosed by the report of the Commissioner of Special Bail — and entirely apart from the evidence — which we deem of sufficient importance to warrant us in sending the case back, in order that it may be again submitted to the consideration of another jury. Besides, as the charge against the defendant is one, which, in its consequences at least, is essentially penal, it is, therefore, due to the proper administration of justice, while at the same time it is of the last importance to the accused, that in the investigation of the case, he should have the full benefit of all the safe guards which the law has provided for the protection of those who are called upon to answer to a criminal accusation.

It appears from the commissioner’s report, and the statements of counsel, that the defendant’s schedule was filed on the 24th of Feb., 1855, and that on the 3d of March following, the commissioner, for reasons which to him were entirely satisfactory, permitted the defendant to amend it, by inserting therein, a buggy, and seventy dollars in money, in the hands of one Barnett.

Now, although there can be no more room to doubt the commissioner’s authority to allow the defendant to amend his schedule, than there is reason to question the propriety of its exercise, still it is manifest, that the bare existence of a state of things requiring the exercise of such a powe'r in order to perfect the schedule, was of itself sufficient — especially when unexplained, — to create in the minds of the jury, animpression prejudicial to the defendant, although in realiáwr8m-mu¥^ffect of the amendment in question, was to jflafiéj¡Jsum m tne -tome position he would havewoccupied, had «^imeduleh^s^é^ginally complete. n

This was a matter which we sh|®cT ^ explained by the commissioner to the from their minds any unfavorable influence which such a circumstance was so well calculated to produce.

There is also another matter in the report which we deem it proper to notice. It is therein stated, that while the commissioner was testifying as a witness in the case, he was stopped by one of the counsel, and thereupon ceased to testify any further.' This the commissioner should not have allowed; for in the tribunal in which he was then presiding, his position was that of a judge, and where it was his exclusive province, as the only constituted organ of the law, to decide upon all questions of evidence that may have arisen during the progress of the trial.

The motion for a new trial is therefore granted.

ON ball, Wardlaw, Whitrer and G-lover, JJ., concurred.

Motion granted.  