
    Reed against Gordon & Wallock.
    ciiarg-e trader the iwo thirds act, cannot be questioned on to ^s'oharo-e the defendant bail, eithe^on th® ground of fraud orirre»-ularfty. The validi4-TT rtf r. /Kn
    P. A. Jay, moved to discharge the defendants on com-1X1011 They were both discharged, under the “ act for giving relief in cases of insolvency(Sess. 36, c. 98,1 R. L. & " f , T J v , TT ’ T ’ 460,) on the 25th January, 1819, by the Hon. tl. Garnson, Judge of Putnam County ; and they were now arrested and held to bail on a capias ad. resp. for a debt which was due llef°re the assignment. The affidavits to oppose the motion went to establish fraud in obtaining the discharges, in ,. . , . . J secreting property and m procuring persons to become petitioning creditors, to whom nothing was due, or for larger sums than were due to them ; and went also to show that the defendants were neither inhabitants of, nor imprisoned in Putnam County, when they applied to be discharged ; hut that, with a view to give the First Judge of that County jurisdiction, they had colluded with a friendly creditor there, who caused their appearance, merely, to be indorsed upon a capias ad. resp. and that the defendants had availed themselves of this as an imprisonment there, within the act. The validity of the discharge, on these questions of fraud, had been tried in the City Sessions, on the traverse of an indictment for a libel, found against Messrs. Simons & Wheaton, on the complaint of Gordon, one of the defendants. That the cause was put to the Court and Jury, distinctly upon the question of the fraud, which was proved by a great number of witnesses, and the defendants were acquitted. The plaintiff swore that he apprehended the loss of his debt, unless the defendants should be holden to hail.
    The questions now moved, 'were first heard during this term, before the Hon. J. T. Irving, First Judge of the city and county of Jfcrv-York, who declined deciding them, and advised the counsel concerned, as the Supreme Court were then in session in she city, and as he considered the points raised to be difficult and important, to submit them directly to this Court.
   Jay, said that this application involved a mere question of law. The practice in the English Courts, is uniformly to order common bail, where the defendant has obtained his certificate under the bankrupt law, or his discharge under the insolvent act. The validity of these discharges cannot be gone into, upon ex parte affidavits. They were granted under the two thirds act, the 8th section of which (1 R. L. 464,) provides, that they shall be conclusive evidence of the facts which they contain.

The 13th section, (1 R. L. 466,) provides for the specific!? cases in which the discharge may be avoided ; and, in Lester v. Thompson fy White, (1 John. Rep. 300,) the Court considered this express provision as excluding any other ground of attack. Collusive imprisonment is not enumerated among the causes of avoidance. This objection should have been made before the Judge, who, we are to presume, did his duty ; and that full notice was given. The affidavits to shew the other frauds are too general and uncertain to be considered as proof. The evidence of fraud, as given at the Sessions, on the trial of the libel suit, is not set forth ; and the verdict in that cause, would not be evidence in the regular trial of the discharge. Besides, this mode of examining the question upon affidavits is most objectionable; for the party is precluded from his right of cross examination.

R. Bogardus and S. B. Romaine, contra, admitted the general rule, that a party cannot be held to bail for a debt which accrued before the discharge. But the Court have. never gone so far as to deny their power to hold to hail, where the circumstances of the case may require it. The question, as to the residence of the insolvent, has never been decided by th’8 Court. By the old inslovent law, the insolvent’s place of residence made no difference. But, to avoid the multitude of frauds which grew out of this omission, an amendment was introduced, and now forms a part of the act, (Sec. 6, 1 R. L. 463,) by which the insolvent is required to apply in the County of which he is an inhabitant, or within which he may be imprisoned. Without one of thescyrerequisites, there is a want of jurisdiction, and the discharge is a mere nullity. Suppose a discharge, regular in point of form, of one who never was before the Judge; suppose the debtor to have been personated, throughout; would this Court be without the power to interfere, on motion ? The discharge is merely a certificate of what appears to the Judge. And this Court may, certainly, inquire, for the purposes of bail, into the validity of the discharge, upon any ground. This is not trying and passing judgment for or a*, gainst the discharge, but deciding whether the insolvent shall be holden to a trial.

The imprisonment in Putnam County was collusive, and the discharge is, therefore, void. It is as no discharge. And in this view, whether this is one of the particular causes of) avoidance enumerated in the act or not, can make no difference. If, as- was decided in Lester, v. Thompson & White, the want of jurisdiction cannot, for that reason, be inquired into upon the trial; for that very reason it ought to be examined here. Otherwise, a want of jurisdiction never can be shown. This case is farther distinguishable from the authorities which forbid an inquiry of this kind, on affidavits. It has been solemnly decided in the libel suit, where it was as directly in question as if pleaded in answer to this action. The question there did not arise collaterally, but was made the turning point in the cause.

The plaintiff swears to his apprehension that the debt is lost, if this application prevails. And our affidavits, though served on the opposite party, are not controverted in a single particular.

G. Griffin, in reply. The statute makes the discharge of these defendants, conclusive evidence of the facts therein contained. Suppose them in prison at the period of their discharge, and brought up on a Habeas Corpus to be liberated ; must they not have been discharged at all events ? We claim the defendants’ discharge upon a settled course of adjudication, from the 1st of Caines to the 20th of Johnson, In Noble v. Johnson, (9 John. Rep. 259,) this Court say, in terms, “ We will not try the validity of a dis charge under the insolvent acts, by affidavits. The plaintiff must resort to his action.” And they say that this had been so decided several times before.

[Woodworth, J. The question there, respected the fraud in obtaining the discharge, not the jurisdiction of the Commissioner.]

Griffin. The discharge is as conclusive in language, in relation to jurisdiction, as it is to fraud; and the question of jurisdiction is as much res judicata as the question of fraud. The officer had equal power to adjudicate on tliis question, and the creditors are equally liable to imposition. No matter how strong the case of fraud, it cannot be overhauled. And is not the principle the same in both cases ? The rule was adopted to prevent a war of affidavits before the Court, and to confine the question to the Jury, the proper tribunal. This is the reason why we have not produced opposing affidavits. A provision in the “ act to abolish imprisonment for debt in certain cases,” (Sess. 42, ch. 101, s. 3,) shews the sense of the legislature upon this rale. They provide that notwithstanding a discharge” under that act, the Court or a Judge may, in cases of fraud, make an order for holding to bail,” Their understanding must have been that this could not be done short of legislative provision.

Curia. The objections urged against these discharges would doubtless be good, if addressed in a proper form, to a tribunal which could entertain them. But we never can try either their fraud or their irregularity, upon affidavits.. We find this settled by repeated decisions, which were reterred to upon the argument. The allegation of a want of jurisdiction, is not distinguishable, for the purposes of this motion, from the charge of fraud. The objections to an inquiry in this form are the same as to both ; and both are equally valid when made in pleading. None of the proceedings, before the discharge, can be questioned in this summary way.

Motion granted. 
      
      
         The position of the learned counsel is correct as a general rule. And this will be done even where the bankrupt has made a subsequent promise to pay. (Baily v. Dillon, 2 Burr, 736. Turner v. Schomberg, 2 Str. 1233.) But the English Courts do not discharge on common bail, where it appears from the affidavits that the certificate was obtained by fraud. (Vincent v. Brady, 2 H. Bl. 1.) And so where the opposing affidavit states that the validity of the certificate was intended to be questioned on the trial. (Stacey v. Frederici, 2 B. & P. 390.) The difference, between the practice of the English Courts, and our own, arises from the conclusiveness of our discharges as evidence, (vid. 1 R. L. 464,) which the English Legislature have not extended to their insolvent laws.
     
      
      б) Vid. Lisle v. Jenins, Barnes, 81. Ford v. Chilton, 2 Bl. Rep.798. Wilson et al. v. Kemp, 3 M. & S. 595.
     
      
       But, vid. Muzzy v. Whitney, et al. 10. John, Rep. 226.
     
      
      
         Vid, in addition to the cases cited by counsel, Cole v. Stafford, 1 Caines’ Rep. 249. Taylor v. Williams, 20 John. 21.
     
      
       Vid. The People v. Simons & Wheaton, in the Criminal Recorder for May and June, 1823, by Mr. Wheeler, for a report of the libel suit mentioned in the affidavits, and alluded to in the argument of this cause. '
     