delivered the opinion of the court.
Nathan Nicholls, an opposing- creditor, is appellant from a iudo-ment, which discharges the insolvent from all suits and ° . . . „ c , ,,. pending against linn, and from all manner oí debts, which he may have contracted.
The appellant assigns the following errors:
1. The insolvent did not deposit his hooks in the clerk’s office, as is required by law, when he filed his petition and schedule, hut after the return day of the notice to his creditors.
2. Further time was granted to the insolvent, to produce his hooks, and he was allowed to produce them after the opposition was filed, opposing his discharge.
3. He was allowed to prove the loss of his books, kept by him previous to August, 1838, and to rebut the charge of fraud by ex parte affidavits, hearsay, and other illegal evidence, without allowing the opponent to cross-examine or to make objection.
4. The insolvent was illegally discharged on this ex parte evidence, and without two-thirds of the creditors present in court, consenting thereto ; and when in fact the only creditor present, opposed it.
5. No' commissioners were appointed, as is required by law, when two-thirds of the creditors present are dissatisfied with the immediate release of the debtor.
6. No Jury was called to try the question of fraud, which was suggested by the opposition.
I. The act of March 26, 1808, under which, the insolvent sought relief, requires, that all his books and accounts shall be deposited in the clerk’s office', at the time of his application. We nevertheless think, that the court did not err in permitting the appellee to deposit such books and accounts, as he was in possession of, as soon as they were thereafter called for.
II. The necessary time was properly given the insolvent, to produce his books and accounts, notwithstanding the opposition had been filed.
Where the op/¡e^e^es^he Jetted \o all his proxierty in his schedule, it will not he chai^of fmidt WI the l°ss °/ P,art of the insolvent’s hooks is shown and an ex-parhT sf^añÜí other ed without ob jeetton, it will aro^no creditors in oourt, opposing the discharge of a the act’ of 1808, obstacle *to his dls°harge. When the opposition does not contain an actual charge of fraud, a Jury need not to t™P(‘lnnelleilIII. There is no charge of fraud alleged in the opposition; the opponent only says, he believes, that the insolvent has omitted to put all his property in the schedule.
The loss of the books and accounts, previous to August, 1838, was proved by the affidavit of the insolvent, at the foot of his petition,; and by the ex-parte affidavit, hearsay and other evidence, by which a further attempt, to ¡Drove the loss, was made, were received without any objection from the appellant.
IV. It does not appear, that any creditor came and opposed the discharge of the insolvent. The record indeed shows, that the appellant’s counsel resisted the productions of the books and accounts, kept since the '20th October, 1838, and took his bill of exception to the opinion of the court, permitting the insolvent to deposit them on that day ; declining a continuance, which was offered him, to inspect and examine them. This is the last opposition, that appears to have been made in his behalf. The judgment of the court informs us, that no further opposition being made, the insolvent was discharged.
V. It does not appear, that any creditor was present to oppose the immediate discharge of the insolvent. The opposing ■ . • 1 r ° creditors, spoken of m the 6th section of the act of 1808, 1 Moreau’s Dig. 569, are not those, who have filed an opposition, but the creditors who are present in court at the time when the immediate discharge is moved for, and express their dissatisfaction therewith. It does not appear, that any creditor was there, and did so ; and the judgment states there was none,
VI. There being no allegation of fraud in the opposition, . there was consequently no necessity of empannelhng a jury to . llj
It is therefore ordered, adjudged and decreed that the judgment of the Commercial Court be affirmed with costs.