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
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.(c) 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.
[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
Motion granted. (e)
(a).
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.
(b).
б) Vid. Lisle v. Jenins, Barnes, 81. Ford v. Chilton, 2 Bl. Rep.798. Wilson et al. v. Kemp, 3 M. & S. 595.
(c).
But, vid. Muzzy v. Whitney, et al. 10. John, Rep. 226.
(d).
Vid, in addition to the cases cited by counsel, Cole v. Stafford, 1 Caines’ Rep. 249. Taylor v. Williams, 20 John. 21.
(e).
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. '