delivered the opinion of the court.
A creditor of Tarbe & Nash having taken a rule on the syndic to show cause within ten days why he should not produce the bank book, which by the act of 1837, section third, he is bound to keep; or in default thereof that he should be dismissed from the office of syndic. The same was made absolute, so far as relates to the production of the book, but three days were allowed him to produce the same, it being shown that he was sick. Before the expiration of the three days, the counsel for the creditor insisted upon his right to give evidence, that the syndic had never kept, such bank book and moved for his dismissal. This being refused, he obtained from this court a rule on the judge to show cause why a mandamus should not issue, commanding him to receive the evidence and make the rule absolute for the dismissal of the syndic. The judge shows for cause that the part of the rule which relates to the dismissal of the syndic could not be tried until he is in default in relation to the production of the book, and that the three days allowed had not expired at the time the second motion was made.
The judge in our opinion exercised a proper discretion, in allowing the three days delay on account of sickness. It was tantamount to an enlarging of the rule and postponing the trial for that length of time, and consequently it would have been improper to have proceeded further.
Let the rule be discharged.