Bangs v. Avery

2 How. Pr. 49

• Court: New York Supreme Court
• Decided: December 15, 1845
• Status: Published

Opinion

Mr. Taber, for the defendant, insisted that this court would ' not try the question.of the validity of a bankrupt’s discharge upon affidavits; that the discharge, being the judgment of a court of competent jurisdiction, must be held to be valid until impeached by a judicial proceeding in the manner pointed o.ut by the 5th section of the bankrupt act; that consequently, when the fi. fa. in question was issued, not only then, but up to this time *it must be taken to have been issued without any judgment to support it, the judgment having been discharged by the District Court of the United States. He also insisted that the fi. fa. was irregular and ought to be set aside absolutely ; that the only mode in a court of law, of testing the validity of a bankrupt’s discharge, was by action on the judgment, not by issuing an irregular and unauthorized execution.

Jewett, Justice;

Upon the authority of Bangs & Okott agt. Strong & Strong, 1 Howard's Practice Reports, 181, retained the levy subject to a suit to be brought on the judgment, as in the case cited.