Rich v. Salinger , 11 Abb. Pr. 344 ( 1860 )

Daly, F. J.

This is a motion to set aside an execution issued after the defendant had been discharged under the two-thirds act. The motion is opposed upon the ground that no notice was received by the plaintiffs, or by either of them, of the defendant’s application to be discharged. The fact that no notice was received by the plaintiff would not, of itself, show that the officer acted without jurisdiction ; but independent of that, an objection to the validity of the discharge, either upon the ground of want of jurisdiction or for any of the causes specified in § 40, Art. III., 3 Rev. Stat. (98, 5 ed.), could not be determined upon a motion like this. The discharge is declared by statute to be conclusive evidence of the proceedings and facts therein contained. In § 19, Art. VII., 3 Rev. Stat. (112, 5 ed.), and in § 37, Art. III., 3 Rev. Stat. (98, 5 ed.), provision is made for pleading the discharge in bar of any action brought to enforce a claim affected by it; in consequence of which provisions it has been held repeatedly that the question of the validity of a discharge cannot be inquired into upon a motion or trial by affidavits. (Reed a. Gordon, 1 Cow., 50; Reynolds a. Manning, Ib., 228 ; Noble a. Johnson, 9 Johns., 259 ; Cole a. Stafford, 1 Cai., 249 ; Taylor a. Williams, 20 Johns., 21.) If the plaintiffs wished to test the validity of the discharge, they should have brought an action upon their judgment, when, upon the defendant’s pleading the discharge in bar, they could go behind it and show that the officer had not acquired jurisdiction, or impeach it for any of the causes whicli would, under the statute, make it void. In this proceeding it is conclusive and the motion must be granted.