Dresser agt. Shufeldt.

It was so decided on several similar applications at the las term. The plaintiff must resort to his action."

Thus the court uniformly in all cases that came before it, until the case of Bangs agt. Strong, recognized the conclusiveness of the discharge, where a motion was made before them, and compelled the plaintiff to resort to his action if he intended to dispute it on the ground of fraud.

It is right that it should be so; the plaintiff has had his opportunity to oppose the discharge on the ground of fraud. If he attempted to oppose it on that ground and failed, it is strong evidence that his charges are unfounded; if he made no opposition the evidence is equally strong. He has had his day in court to establish that very point-a judgment has been passed upon it which the statute declares "shall be conclusive evidence of the proceedings and facts therein stated" (2 R. S. 38, § 19, and id. 21, § 25).

The court expressly says it will not try the question of fraud on affidavits, and if they do not try it, then the discharge remains as conclusive evidence of its validity until impeached in the way prescribed by the court, namely, by action. How it can be conclusive evidence of its own validity and yet be disregarded and an execution be allowed to be issued and levied and retained, while the court has no proof of the fraud, I can not comprehend. The court must either take the proofs on affidavits and decide accordingly, or set aside the execution and leave the plaintiff to his action, or it will give no effect to a record which the law declares to be conclusive evidence; and which is conclusive until effectually impeached. To allow the execution to go, and to refuse to try the question of fraud, is to make the mere charge of fraud more potent on the motion than the conclusive record.

It is true the creditor may impeach the discharge for fraud, and if he succeeds it will be void (2 R. S. 23, § 35). But if the court will not, on motion, hear the proofs of fraud or innocence, it must treat the discharge as valid. There can be no difference in principle (as Justice Jewett supposed) between a motion to set aside a ca. sa. and a motion to set aside a fi. fa. If the defendant is honest, and has acquired property since his discharge,

Dresser agt. Shufeldt.

or been trusted with it, he is as much entitled to use it, as he is to the freedom of his person. The discharge is equally effectual to his goods as to his person, and if contaminated by fraud equally inoperative over each.

The revisers seem not to have approved the practice of discharging a defendant from mesne process merely because he had obtained an insolvent discharge, but required notice to be given to the plaintiff before he should be so discharged; but then they also required the question of fraud to be passed upon by the officer to whom the application for such discharge should be made (2 R. S. 38, § 21, 22); and they did not extend the requirement of notice to cases of executions, but left them to stand as before (2 R. S. 23, §34), and the sheriff could discharge one in prison on the mere production of the discharge (id.).

Why should the judgment creditor have an advantage over all other creditors? they can not reach the defendant's property until they establish the fraud; why should he? To give him the preference holds out a temptation to attach such property as this—a vessel just going to sea-and hold it until in a regular course of litigation it shall be decided whether the defendant has been guilty of fraud or not; in the mean time the property being consumed by its own nature and the costs of keeping it. A defendant might better pay the debt, than submit to such a delay; and creditors knowing this would speculate on his fears and issue execution with little or no foundation for their suspicions. I am satisfied that "reason and equity," appealed to by Judge Jewett, require the courts to pass on the question of fraud on the motion, or (as the law was before uniformly established) set aside the execution and leave the plaintiff to his action on the judgment.

I would still readily adopt the decision of Justice Jewett if I could, on some principle, reconcile it with the uniform course of former decisions, but I can not.

It is against principle to allow a matter which ought be put in issue and tried by a jury, and which lies at the foundation of the plaintiff's cause of action, and without establishing which he can not succeed in his suit to be assumed by him, and to permit him without proving it or alleging it, to get at once the fruit of a verdict and judgment on the issue, by issuing an execution, VOL. VII.

12

Travis and others agt. Tobias and others.

which is irregular if the matters to be affirmatively proved by him are not true.

In my opinion the execution was irregularly issued, and should be set aside; the defendant stipulating not to commence any action on account of the execution, and the plaintiff should be left to his action on the judgment.

SUPREME COURT.

TRAVIS AND OTHERS agt. TOBIAS, MCGREGOR AND Reynolds.

In actions where the defendant is not held to bail, several persons may be named in the summons, and the plaintiff may deliver a complaint against only the one upon whom the process is served, omitting the names of the other defendants, mentioned in the summons.

In an action arising on contract for the recovery of money, where the complaint seeks to vacate an agreement extending the time of payment, for fraud, and to obtain an immediate judgment for the whole demand, the plaintiff should insert in the summons, according to the 2d subdivision of § 129, that if the defendant fails to answer, &c., the plaintiff will apply to the court for the relief demanded by the complaint.

Washington Special Term, February 1851. In November 1850, the plaintiffs issued a summons in this action, and stated therein that if the defendants failed to answer the complaint, the plaintiffs would apply to the court for the relief demanded in the complaint, being the clause required by the 2d subdivision of § 129 of the Code. The plaintiffs also applied to the county judge of Washington county and obtained on the 13th November 1850, an attachment under § 227 of the Code, against the defendants as non residents of this state. On the 23d November, the summons and attachment were served on the defendant Tobias, at Whitehall in Washington county, personally. No process has been served upon either of the other defendants, nor was any property taken on the attachment. It was served by giving a copy of the summons to the defendant Tobias. On the 3d February the plaintiffs' attorney served a copy of the complaint on the

Travis and others agt. Tobias and others.

attorney of Tobias. The complaint was against Tobias alone, on a contract for the purchase of a vessel sold and delivered by the plaintiff to the said Tobias in 1848, for the sum of twelve hundred dollars. The complaint alleges that the sale was on a credit; one third of the purchase money to be paid in one year, one third in two years, and one third in three years; the said payments to be secured by the promissory notes of the defendant, together with McGregor and Reynolds as sureties. It alleges that the vessel was delivered to the defendant Tobias, and he delivered to the plaintiffs three promissory notes payable according to the terms of the contract, and purporting to be signed by McGregor and Reynolds, but that in fact neither note was signed by the McGregor and Reynolds agreed upon, but by other persons of the same name, who were worthless and irresponsible men. It also alleges that the notes were forgeries, and it charges that the defendant Tobias is liable to pay for the said vessel immediately, the whole purchase money with interest.

The defendant Tobias, now moves to set aside the summons, and that the defendants have judgment dismissing the complaint, with costs of the motion, and the defendants' costs in the action, on the ground that the notice contained in the summons should have been under the 1st subdivision of § 129, instead of the 2d subdivision; and on the ground that the parties have been improperly changed, and on the ground of the neglect of the plaintiff to serve a complaint against all the defendants, and for other or further order, &c.

O. F. DAVIS, for the motion, cites Code, § 129, 227; Russell agt. Spear, 5 How. Pr. R. 142; 4 id. 306; Code, § 274.

MR. POTTER, Contra.

WILLARD, Justice.-1. The first objection is that the summons is against three persons, and the complaint against one alone. Under the former practice where the writ did not require special bail, several persons might be named as defendants, and the plaintiff might declare and proceed against any one of them separately (Roosevelt vs. Soulden, 16 J. R. 44; Montgomery vs. Hasbrouck, 3 id. 538). Such was also the English practice (4) T. R. 696, 697; 5 id. 722). But in bailable actions when the

Travis and others agt Tobias and others.

defendant was held to bail, the plaintiff was bound to pursue the process in his declaration, and if he failed to do so the court would set aside the proceedings for irregularity (Rogers vs. Rogers, 4 J. R. 485); and even in such actions, although the defendant was not held to bail, the proceedings would be set aside if the declaration departed from the writ with respect to the number of the defendants (Bell vs. Carroll 1 Cow. 193; En. Pr. 601, 3d ed.).

There is nothing in the Code which prevents the application of these principles to an action commenced by summons. It is not perceived how the defendant on whom the summons is served, can be prejudiced by the plaintiff's failing to proceed against the other defendants named in it. I think the plaintiffs are regular in delivering a complaint against the defendant on whom the process was served, omitting the names of the other defendants mentioned in the summons. This is a different question from that decided in Russell agt. Spear (5 How. Pr. R. 142).

2. The defendant Tobias, has no right to ask the court to dismiss the complaint, with costs in favor of the other defendants, under § 274. It is for those defendants to make the motion and not for Tobias. Those defendants have not appeared and are non residents of the state. Whether the plaintiffs will proceed against them or not, can not affect Tobias. Indeed, it appears by the plaintiffs' affidavit that they have no intention of proceeding against them. It will be time enough to decide the question when they invoke the aid of the court.

3. The action being on a contract for the recovery of money only, it is urged that the notice in the summons should have been under the 1st subdivision of § 129, that the plaintiffs would take judgment for a specified sum, rather than under the 2d subdivision, that they would apply to the court for the relief demanded in the complaint. The defendant has an interest in this question; for if the judgment may be obtained without application to the court, under the first subdivision, the plaintiffs' costs are only seven dollars; whereas they are twelve dollars, if judgment can only be taken on application to the court. In other respects the latter alternative is more favorable to the defendant than the former, since it gives him a longer time and will insure a closer