
    OGDEN AND McCOMB v. HARRIS.
    On an application for leave to issue execution against a certificated bankrupt on a judgment obtained before liis discharge, on allegation of fraudulent preference of creditors, the court can and will, in a proper case, order au issue to try the facts.
    A judgment was obtained in 1831, in this court by the plaintiffs against the defendant. A fi. fa. was then issued thereupon, and returned nulla bona. Subsequently Harris was discharged under the United States’ bankrupt act. After his discharge an execution was issued, without an.y order of.the court, which was set aside on a rule to show cause, the plaintiffs alleging fraud in obtaining his discharge, but failing in their proof on the argument, on account of some informality in their affidavits.
    A rule was after this granted, on application of the plaintiffs, that the defendant show cause why an execution should not be ordered to issue on an allegation of fraud in obtaining the bankrupt’s discharge, with leave to take affidavits. These not being satisfactory, an application was made for an issue to try the fact of fraudulent preference.
    
      Argued before Justice Randolph;
    
      A. Gifford, for plaintiffs, A. G. M. Pennington, for defendant.
   Randolph, J.

The ease and evidence impeach the discharge — 1st, for being in contemplation of bankruptcy, and 2d, for fraudulent preference; either of which grounds, if sufficiently proved, would render the discharge null..

We see no difficulty in trying this matter by an issue, as is the practice of some of the states.

Let a rule bo entered for an issue, &e.  