
    Ex parte, Levi B. Maffet.
    
      Insolvent Debtors’ Act — Practice. .
    
    Whether a suggestion may be filed contesting an applicant’s right to his discharge under the Insolvent Debtors’ Act, is a matter within the sound discretion of the Circuit Judge.
    The charges of fraud in such case should be clear, distinct and specific and not founded on hearsay and rumor.
    BEFORE GLOYER, J., AT NEWBERRY, SPRING TERM, 1858.
    Tbe report of his Honor, the presiding Judge, is' as follows:
    “ The petitioner, one of the firm of L. B. & B,. D. Maffett, and who was in custody at the suit of George G. Be Watt, executor, applied for the benefit of the Insolvent Debtors’ Act. His application was resisted by S. S. Parrar & Brothers. Maffett was sworn and interrogated, who stated that his books were in Mr. Summer’s office for inspection; that he did not procure his arrest under the ca. sa., nor was it by his consent; that the last payment which he made on the judgment in favor of Gilliland Howell & Go., was about the 1st July, 1857, and that the payments he made were with no intention to defeat the debts of other creditors; that his firm was closed in 1855, and he commenced as a clerk, for his father in September, 1856, at Prog Level, at a salary of two hundred dollars per annum, or for ivhat his wages were worth, and that he, on one occasion in Charleston, did sa.y that the profits of the present business are for his benefit.
    
      a By order of the presiding judge, his schedule was amended, and his interest in the profits of the present mercantile business at Prog Level was inserted.
    “ The affidavit of O. D. Parrar, one of the firm of S. S. Parrar & Go., was then offered, stating that he had good reason to belieye, and did believe, that Maffett procured Ms arrest, and that it was by bis own consent; that be made a payment to another creditor for tbe purpose of defeating tbe claim of S. S. Parrar & Brothers ; that be has threatened to defeat said claim, and that be at one time offered to pay all creditors sixty-six and two-third cents to tbe dollar; that tbe assets in tbe schedule are of small value, and the defendant believes that the schedule does not contain all tbe cboses in action belonging to said Maffett, which he believes an examination of the boots of the firm will verify, and which he believes can be proved otherwise.
    “ The examination of the applicant did not satisfy me that he was guilty of fraud, nor did the affidavit of 0. D. Parrar specify, except vaguely, and on general belief, that Maffett’s conduct was fraudulent. By bis examination, the applicant on oath had denied all the allegations of fraud set forth in the affidavit. As the allegations of fraud would necessarily delay the hearing of the petitioner’s application, I suggested to the counsel the production of the affidavits of third persons as to any fraudulent conduct of Maffett, and I would have been satisfied with any affidavit which submitted a stronger allegation of fraud than the one of 0. D. Parrar, which had been answered by the petitioner on his examination.
    “S. S. Parrar & Brothers proposed to file suggestions alleging fraud, and resisted an order to discharge the prisoner from his arrest, which motion was refused.”
    S. S. Parrar & Brothers appealed, and now moved this Court to reverse the ruling of his Honor, on the grounds:
    1. That he erred (as is respectfully submitted) in refusing to permit the contestants to file suggestions whereby an issue could be made up to try the questions of fact raised by the affidavit of one of the contestants, alleging that the petitioner’s schedule did not contain his whole estate; that the petitioner bad been arrested by bis own consent and procurement, and that be (tbe petitioner) bad made a payment wbicb amounted to an undue preference of a creditor to tbe contestants.
    2. That tbe contestants bad a right to a trial by a jury of tbe country, when their rights were passed upon, without making tbe showing required by bis Honor, to wit: tbe affidavit of a disinterested person alleging matter sufficient in law to preclude the petitioner’s discharge, when tbe contestants bad no power to produce an affidavit of a disinterested person, or tbe testimony of such person in any way, unless an issue bad been made up.
    
      Baxter, for appellant,
    cited Sherman & Debruhl vs. Barret, 1 McM. 147; Rosen vs. Moye, 1 Rich. 64; 3 Strob. 365 ; Baker Johnson & Go. vs. Bushnel, 1 McM. 67 ; 5 Stat. 80.
    
      Summer, contra,
    cited Zylstra's case, 2 Bay, 147; Act 1836, 6 Stat. 536. Tbe matter is within tbe sound discretion of tbe circuit judge and there must be a showing by affidavit, or in some other way.
   Tbe opinion of tbe Court was delivered by

MuNro, J.

This was an application for tbe benefit of tbe Insolvent Debtors’ Act. Tbe applicant’s right to his discharge was resisted by bis creditors, whereupon be was examined under oath, in conformity with tbe provisions of tbe Act of 1836, touching tbe fairness of his schedule.

Tbe contestants, not being satisfied with tbe result of tbe applicant’s examination, persisted in resisting bis discharge, and upon tbe affidavit of one of tbe contestants, moved for leave to file suggestions of fraud, in order that an issue might be made up, and tbe matter submitted to a jury.

The motion was refused by the circuit judge, so that his ruling is now charged as error in the grounds of appeal.

The reasons assigned by the circuit judge, for his refusal to sustain the motion, are thus stated in his report: “The examination of the applicant did not satisfy me that he was guilty of fraud; nor did the affidavit of C. C. Parrar, specify, except vaguely, and on-general belief, that Maffett’s conduct was fraudulent. By his examination the applicant had denied all the allegations of fraud set forth in the affidavit.”

Upon the .application of a party claiming the benefit of the Insolvent Debtors’ Act, if the judge, before whom the application is made is satisfied, either from the personal examination of the applicant, or from any other source, that he has failed to make a full and fair surrender of his estate for the benefit of his creditors; or has in any other particular failed to comply with the requisitions of the law, it is his duty to refuse the application, and leave the matter to be passed upon by a jury, upon suggestions to be filed for that purpose, as was done in the case of Rosser vs. Moye, 1 Rich. 62.

But if, on the contrary, he is satisfied that the debtor has made a fair surrender of his estate, it is equally his duty to discharge him.

It is true, that notwithstanding the applicant’s examination under oath, -and his denial of the various matters alleged in opposition to his discharge, the creditors are not thereby precluded from controverting the truth of his statements, and of submitting the same to the arbitrament of a jury. But it is equally clear, that their right to do so can only be sustained where the charges of fraud are clear, distinct, and specific, and not founded as was the case here, upon mere hearsay and rumor.

Of the sufficiency, however, of the showing to sustain a motion of this kind, and whether its tendency will be to protect the interests of' creditors, or on the contrary to hinder or delay the applicant’s discharge, are matters that must necessarily be left to the exercise of a sound discretion on the part of the judge before whom-the application is made; with the exercise of which, it would be to say the least of it, unwise for an appellate tribunal to interfere.

Wherefore the motion is dismissed.

O’Neall, Wardlaw, Whitker and G-loyer, JJ., concurred.

Motion dismissed.  