Bangs v. Strong , 1 Denio 619 ( 1845 )

By the Court, Jewett, J.

It is true, as the defendant’s counsel insists, that the discharge is prima facie an extinguishment of the judgment, as to this defendant; but the act expressly provides that it may be impeached for fraud or wilful concealment, &c. (Bankrupt act, § 4.)

The cases to which the defendant’s counsel has referred, establish the principle, that the validity of such discharges cannot be determined upon affidavits. They are all cases where the defendant was in custody on mesne or final process, or where he had been surrendered by his bail. I am entirely satisfied with the doctrine which they establish; but they do not deny to this court the power to afford the creditor an opportunity to establish his allegations in a more formal way, and in the mean time to secure to him, as far as may be practicable, the fruits of the litigation, in case he shall be successful. Enough is shewn, by the affidavits on behalf of the plaintiffs, to induce a reasonable belief that the charges of fraud can be established. Where circumstances are shewn raising suspicion that the certificate was obtained by fraud, the English' courts do not discharge a defendant arrested mi,mesne process, upon filing common bail. (Vincent v. Brady, 2 H. Black. 1; Stacey v. Federici, 2 Bos. & Pul. 390.)

To carry out the views suggested, a rule will be entered that the motion be granted, unless the plaintiffs shall within sixty days bring an action on the judgment; the defendants to have leave to plead in that suit any matter of defence, except the issuing and levying of. the executions mentioned in the affidavits ; and if such suit is brought, the executions and the levy under them to remain as a security to await the result; and in the mean time, all further proceedings on the executions to be stayed.

Ordered accordingly.