
    Charles G. Barker & another vs. William E. P. Haskell.
    Books of account, the entries in which were copied by one plaintiff from entries on a slate made by the other plaintiff, verified by the oath of both plaintiffs, are admissible in evidence.
    Account books are not incompetent, as of course, because the entries therein were' not made on the same day that the charges were incurred.
    In an action for work and materials, the plaintiff’s hooks are admissible to prove work done by persons in his employment.
    Whether a defendant, who, during the pendency of a suit against him, institutes proceedings in insolvency, shall have a delay of the trial of the action on that ground, and for how long a time, are matters resting entirely in the discretion of the judge before whom the action is pending; and to the exercise of such discretion no exception lies.
    A creditor may prosecute an action against his debtor to final judgment, notwithstanding, after the action is commenced, the defendant institutes proceedings in insolvency, and the creditor offers the claim in suit for proof against the estate.
    This was an action of assumpsit for work and materials.
    At the trial, in the court of common pleas, the plaintiffs’ books constituted their only evidence, except as to the value of day labor. It was stated that the entries were originally made on a slate by one plaintiff, and subsequently copied into the daybook by the other, and the suppletory oath of both plaintiffs was offered in verification. The defendant objected to this evidence, but the presiding judge, Hoar, J., admitted it.
    It also appeared that the entries were made upon a slate, each day, at the shop, by one of the plaintiffs, and, when there were several of the plaintiffs’ men at work on the same day as in this case, the entry was for so many days’ work on that day. This slate was taken by the other plaintiff to his house, and the entries copied therefrom into the daybook. It appeared that this was usually done every day, but, as regards these charges, the plaintiff who did the copying could not say but that several days might have elapsed before the entries on the slate were copied by him, but that he was confident, in this case, that they were copied every day, as their work was pressing at that time of year, and the slate filled every day. It also appeared’ that the plaintiff who made the entries on the slate did not examine the books, to see that the charges were made or copied correctly. The defendant objected to the admissibility or competency of the books under this evidence, but the judge admitted them, and ruled that they furnished a prima facie case for the plaintiffs, except as to one item for plasterers’ work.
    The defendant was in insolvency before J. M. Williams, Esq., having filed his petition after the commencement of this action.
    The defendant showed to the court that, at the third meeting of his creditors, on the 12th of June, 1849, the plaintiffs presented the claim in suit for proof and allowance, and made oath to the same,- but that, objection being made to it, the further consideration thereof was postponed by the commissioner to the fourth meeting, thereafter to be called: that the fourth meeting was ordered to be called for the 2d of August, 1850; and that the defendant had, six months before, requested that the fourth meeting might be called, but that the clerk not finding the assignee, it had been deferred. The defendant offered to show that his estate had paid in full all demands proved against it, and that there was now, in the hands of the assignee, a sum sufficient to pay the plaintiffs’ whole claim, if proved; that that was the only claim then pending, and that the defendant was entitled to his discharge; but the judge refused to hear the evidence. It appeared that the defendant had, at that time, made no application for his discharge, and that none had been granted.
    On this evidence, the defendant contended that the court ought not to try the case, and had no jurisdiction to try it, as against the defendant, the plaintiffs having submitted their case to the jurisdiction of the commissioner of insolvency. But the judge refused so to rule, and the case was brought into this court on the defendant’s exceptions.
    
      A. B. Ely, for the defendant.
    The plaintiffs’ books were not admissible or competent, because better evidence of the facts, or of a part of them, was to be had, and because the entries were not seasonably made. 1 Greenl. on Ev. §§ 117,118, and notes, and authorities there cited, particularly Forsythe v. Norcross, 5 Watts, 432; Waite« 
      v. Bollman, 8 Watts, 544; Lynch v. Petrie, 1 Nott & McCord, 130 ; Hughes v. Hampton, 2 Const. It. (S. C.) 745 ; Wright v. Sharp, 1 Browne, (Pa.) 344.
    The court ought not, then, to have proceeded to trial or judgment in the case, but should have postponed or continued it, till the matters then pending before the commissioner of insolvency had been passed upon, and the defendant’s discharge granted or denied; (1) because the plaintiffs had themselves submitted the very claim in suit to the jurisdiction of the commissioner; (2) because the defendant was in no fault in not having received his discharge ; (3) because the rule has invariably been that, where the defendant was not in fault, cases should be continued during the pendency of proceedings in insolvency, to allow the defendant to obtain and file his discharge. Ex pa/rte Foster, 2 Story’s B. 131.
    
      S. C. Maine, for the plaintiffs.
    The books were properly admitted. Vosburgh v. Thayer, 12 Johns. 461; Faxon v. Hollis, 13 Mass. 427 ; Smith v. Sanford, 12 Pick. 139; Morris v. Briggs, 3 Cush. 342.
    The delay of the defendant in procuring his discharge was unreasonable, and the plaintiffs had a right to ask for a trial. The court had full jurisdiction to try the action, so long as the plaintiffs’ claim had not been proved and allowed by the commissioner. Morse v. Reed, 13 Met. 62 ; Morris v. Briggs, 3 Cush. 342.
   Bigelow, J.

The objections made to the admissibility of the book of the plaintiffs as evidence, have been substantially overruled by former decisions of this court.

1. The first objection, that the entries were originally entered on a slate by one of the plaintiffs, and thence copied on to the daybook by the other plaintiff, was overruled in Faxon v. Hollis, 13 Mass. 427, and Smith v. Sanford, 12 Pick. 139. Being verified by the oath of both the plaintiffs, they were clearly competent.

2. The next objection is, that the entries were not seasonably made on the book. The evidence, as reported, fails to sustain this objection; the fair inference being, that they were copied tom the slate daily. But if it were not so, it by no means follows that the books would be inadmissible to prove the charges. Although the rule is well settled, that the entries, to be competent, must have been made at or near the time the charges were incurred, it does not fix any precise time within which they must be made. There is no inflexible rule requiring them to be made on the same day. Morris v. Briggs, 3 Cush. 342. In this particular, every case must be made to depend very much upon its own peculiar circumstances, having regard to the situation of the parties, the kind of business, the mode of conducting it, and the time and manner of making the entries. Upon questions of this sort, much must be left to the judgment and discretion of the judge who presides at the trial; because, having the books before him, and understanding all the circumstances of the case, he is better able to decide upon all questions involving the fairness and regularity of the entries sought to be proved.

3. The remaining objection to the plaintiffs’ books is, that there was better evidence in existence of the charges; because, the subject matter of them being for work done by the day, by persons in the employment of the plaintiffs, the testimony of such persons would be the best evidence of such charges. This objection was distinctly overruled in Mathes v. Robinson, 8 Met. 269, and we see no occasion for revising that decision.

4. The remaining exceptions alleged by the defendant are of a different character. At the trial, he offered to prove that, after the commencement of this action, he had filed his petition for the benefit of the insolvent acts; that the proceedings therein were still pending, and that, for various reasons, he had not obtained his discharge, to which he was in fact entitled, as soon as application therefor was duly made by him; and upon these facts, he contended that the court ought not to proceed with the trial of the cause, but were bound to grant him a continuance. We know of no rule of law, by which a defendant, who has applied for the benefit of the insolvent laws, can claim, as a matter of right, the delay of the trial of an action pending against him, at the time of the institution of proceedings in insolvency. In many cases of disputed claims and uncertain amounts, it is expedient and necessary that a trial should be had, in order to enable a party to present his claims for proof. It is, undoubtedly, the universal practice of the courts in this commonwealth, upon the suggestion of the insolvency of a defendant, in an action pending before them, to grant a continuance of the case for a reasonable time, in order to give the defendant a proper opportunity to • procure and plead his discharge in bar of the plaintiff’s claim. Ordinarily, and unless the defendant were guilty of laches in procuring his discharge, continuances would be granted, until, by the due and regular course of proceedings, the discharge is granted or refused. But whether such continuances shall be granted, and for how long a time, must be left to the discretion of the court where the suit is pending, and cannot be claimed as of right. To the exercise of such discretion no exception lies ; and, therefore, the refusal of the court to grant a continuance in the present case cannot be revised here.

The defendant also contended, that the court has no jurisdiction to try the case, because the plaintiffs had offered their claim for proof against the estate of the defendant in insolvency, and, it having been objected to, and its consideration postponed to the fourth meeting, it could not be further litigated before the court. As no reason was given or authorities cited, in support of this position, by the counsel for the defendant, it is difficult to understand the precise grounds on which it rests. The proof of a claim against the estate of an insolvent is a collateral proceeding, wholly independent of and aside from an action pending in court, and having an entirely distinct and different object. It is the only mode in which the creditor can reach his share of the assets in the hands of the assignee, and, so far, it gives him a partial remedy. But the suit at law may still continue, to complete the remedy. If the defendant fails to procure his discharge, or, when obtained, if it is hable to be impeached and set aside for fraud, or other causes, the creditor may, in such cases, continue to prosecute his action to final judgment. The case of Morse v. Reed, 13 Met. 62, is in point, and goes further than is contended for by the plaintiff in this case. There, creditors who had proved their claims and received a dividend from the estate of the insolvent, were allowed to prosecute their suit, commenced before the proceedings in insolvency to final judgment. Exceptions overruled.  