delivered the opinion of the court.
This is an appeal from an interlocutory judgment ordering a collateral issue for the purpose of trying before a jury certain charges of fraud made against the petitioner by two of his creditors.
*657The appellant, an insolvent debtor in actual custody, having claimed the benefit of the laws of insolvency under the Act of 1808, his creditors consented to his release. On the same day that the creditors’ votes were received, two judgment creditors, H. Wallet and B. Populus, who had [477] not exercised their right of voting for or against his said release, filed their allegations of fraud against the insolvent, and propounded him interrogatories which were immediately answered. Some short time afterwards, the insolvent obtained a rule on the opposing creditors, to show cause why their oppositions should not be set aside, and why the petitioner should not be discharged from imprisonment, on the ground that no creditor has any right to vote in favor of or against the release of an insolvent debtor in actual custody, if his claim is not proven by a notarial act or by some other collateral proof supported by the oath of said creditors, and that no notarial act or oath was presented before the court at the meeting of the creditors in open court on the day the oppositions were filed. The court below discharged the rule, and the insolvent appealed.
The same ground is now insisted upon before us, ana we are referred to the first section of the Act of the 31st March, 1808, 1 Moreau’s Dig., 573. It is true that under this section, no creditor of an insolvent debtor has any right of voting for or against his release, unless he proves his debt in the manner therein set forth, so as to satisfy the court as to the nature and origin of the debt, and to leave no doubt of its reality; but the sixth section of the Act of the 25th March, 1808, provides that “ when fraud is presumed or charged by any one of the creditors in any stage of proceedings had before the court, the judge shall direct a collateral issue to try the same before the jury, and for that purpose, a suggestion shall he filed in which the facts to he relied on shall he stated, and the debtor shall plead to the same.” We consider this proviso as being peculiarly applicable to the present case, and there is nothing in it that requires the creditor to give his vote before filing the suggestion of fraud therein alluded to ; this may be done at any stage of the proceedings had before the court previous to the definitive discharge; and we are not aware that such suggestion ought to be supported by the same land of proof as may be necessary to give to the creditor the right of voting.
By alleging fraud, the creditor gives no vote, he merely makes an [478] opposition to the release of the debtor, founded on distinct and specified facts which he must prove and substantiate, and which, if not established, will not prevent the debtor’s being forthwith discharged from the custody of the sheriff, whilst on the contrary, the vote of a creditor, being the expression of his consent or refusal to the release applied for by the insolvent, is to be counted among those who are for or against his demand, and is to have the effect of controlling a minority which perhaps would not exist in the absence of such vote. This is undoubtedly the reason why the law, for the protection of the other creditors, and to prevent collusion between the debtor and a pretended creditor, wisely requires the production of such proof as to leave no doubt of the reality of the debt due to the person who wishes to exercise the right of voting. Here, there is ample proof of the opponents being *658judgment creditors, they are carried on the hilan as such, and it also appears that the appellant, at the time of his surrender, was in actual custody by virtue of the judgments obtained against him hy the appellees. This was sufficient to entitle the opponents to file them suggestion of fraud, and we are of opinion that the rule under consideration was properly discharged.
It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed, with costs.