#### *Samuel W. Bentley vs. Thomas G. Page.*

1. Where an issue has been made up to try the validity of a debtor’s schedule, and a day appointed by the Commissioner of Special Bail, for that purpose, and the jury are in attendance — the question of postponement or continuance, becomes a question of discretion, to be addressed to the Commissioner, who will never grant the motion, unless upon the most satisfactory shewing.

2. A plaintiff will not be permitted to add new, and other specifications, to his suggestions of fraud, &e., against a debtor’s schedule, after the issue has been made up, and the parties are ready "for trial.

3. The notes of the Commissioner of special bail, taken on the examination of a debtor, applying for his discharge under the prison bounds Act, on his previous application for discharge in the same case, and before the specifications of fraud were filed, is inadmissible evidence to go to the juiy, on the trial of the validity of his schedule. *Vide, S. P. E. Hyatt, Co.*vs. *John Hitt, ante.*

This was an appeal from a verdict before William Ray, Esq., Clerk of the Court and Commissioner of Special Bail, for Union District. Page was arrested at the suit of Bentley, the plaintiff, on a *ca. sa.,*and on filing his schedule, applied to be discharged under the prison bounds Act, which was opposed by the plaintiff, on several grounds. The Commissioner, after examining the defendant, refused *53to discharge him, and directed a jury to he empannelled to try the issues. The trial was appointed for the 4th August, when the plaintiff moved to postpone it for a future day, on account of the absence of witnesses. The motion was • refused, but the statement by the plaintiff, on oath, of what the absent witnesses would prove, was allowed to be read in evidence, and the trial proceeded. The plaintiff then moved to add other grounds of objection to the defendant’s schedule, which was refused by the Commissioner. Several witnesses were then examined ; and at the plaintiff’s instance, the defendant himself was sworn and examined; after which, the plaintiff’s counsel proposed to read in evidence, the notes of the defendant’s former examination before the Commissioner, taken down in writing by him. This was also overruled by the Commissioner; and the cause was submitted to the jury, who returned a verdict for the defendant. The motion here, is for a new trial, on the ground of error in law, on the part of the Commissioner, in the several particulars mentioned, as well as of error on the part of the jury, in finding a verdict against evidence.

*Ouria, per*

Earle, J.

The. question of postponement, was addressed entirely to the sound discretion of the Commissioner, as, in like cases, before other judicial tribunals. It was very proper, in disposing of it, that he should consider the interest and convenience of the jury, and others, required to attend this extraordinary court, and to refuse the motion, except upon the most satisfactory shewing. It seems to us, that the mode adopted of supplying the testimony of the absent witnesses, ought to have been sufficient to obviate the objection here, as a ground of new trial. We will not review the decision of the Commissioner on that point. He was, likewise, clearly right, in not allowing the plaintiff to add other grounds of objection to the defendant’s schedule, after the issue was made up, and the parties had met-for trial. If new issues were allowed to be tendered in that way, the proceeding would be interminable, for it could never be known when the case is ready to go to the jury. Besides, the defendant, after preparing to meet the objections filed, would sudden*54ly be called on to meet others, which must result in doing him injustice, or produce protracted delay. We approve of the rule adopted by the Commissioner, to confine the plaintiff to the grounds of objection, filed in writing, at the time the jury was ordered to be empannelled. The Commissioner was also right, in refusing to the plaintiff’s counsel, permission to read the notes of the first examination of the defendant. There is no point of view, in which they can be regarded as competent evidence, for any purpose. The plaintiff had the right, and used it, (under the Act of 1836,) to examine the defendant, on oath, touching the matters in controversy. He had, likewise, the right to prove before the jury, that the defendant had sworn differently before the Commissioner; but this should have been done in the same inode that is used in other courts, by calling a witness to testify what the defendant had formerly sworn; any by-stander, or the Commissioner himself, would suffice. But the notes taken by the Commissioner, were no more evidence than the notes of any other Judge. He was not required to reduce the examination to writing; and the notes, taken for his own satisfaction, have neither the authenticity of a record, nor the sanction of an oath. The whole proceeding before the jury was, *de novo,*not a continuation; and if the facts, stated by the defendant on the first examination, were to be regarded as proof for the plaintiff, the jury' were entitled to hear them from the mouth of the party. If they were intended to contradict, or discredit him, they should have had the sanction of an oath when rehearsed to the jury. The notes were incom-petént as evidence, and could only be used by the consent of both parties. Motion refused.

*Dawkins,*for the motion.

*Herndon,*contra.

B. J. EARLE.

We concur. J. S. Richareson, J. B. 0’Neal.l, J. J. Evans, A. P. Butler.