Ex parte McDonald

47 S.C.L. 250

• Court: Court of Appeals of South Carolina
• Decided: December 15, 1861
• Status: Published

Opinion

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.