#### William A. Coursen, plaintiff and respondent, *vs.*David B. Dearborn, impleaded, &c. defendant and appellant.

1. The validity of a defendant’s discharge from his debts under the insolvent act of this state cannot be attacked in proceedings supplementary to execution. The Code of Procedure does not provide for submitting questions of fact arising under such proceedings to a jury; and hence now, as well as formerly, the creditor is compelled to have recourse to an action, to test the validity of such discharge.

2. Hence, when the discharge is set up, all further proceedings upon the examination of the defendant should be suspended, or postponed until the determination of an action upon the judgment. *Per*Monele, J.

3. But if the defendant fails to appear and produce his discharge, on the day named in the order for his examination, but puts himself in hostility to such order, he may be adjudged to be in contempt. His discharge will not purge the contempt; and the justice who hears the motion for an attachment has the right to punish the defendant, or to excuse him, absolutely or conditionally.

4. If an order made upon such motion relieves the defendant from the attachment on condition that he' appear and “ submit to an examination,” and the defendant, by appearing at chambers, and being sworn in the usual manner, complies with the condition named in the order, he is entitled, upon presenting his discharge, to obtain a suspension of the proceedings, so as to compel the plaintiff to sue upon the judgment, or otherwise test the validity of the discharge.

(Before Robertson Ch. J., and Barbour and Monell, JJ.)

Heard April —, 1867;

decided May —, 1867.

Appeal by the defendant Dearborn from an order made at a special term, directing the- issuing of an attachment against him, unless he submit to an examination in proceedings supplementary to execution, and pay the costs.

Beebe, *Dean*Donohue, for the defendant, appellant.

The validity of an insolvent’s discharge is not to be tried on affidavits, but the plaintiff must resort to his action, *(Baker*v. Taylor, 1 Cowen, 165. *Noble*v. Johnson, 9 *John.*259. *Russell*v. Packard, 9 *Wend.*431. *Bangs*v. *Olcott,*1 *How. Pr.*181. *Dresser*v. *Shufeldt,*7 *id.*85.) The court *144will not *try*the good faith or regularity of an insolvent’s discharge upon the debtor’s motion to be relieved from arrest, but. will grant his motion. *(Reed*v. *Gordon,*1 *Cowen,*50.)

The provisions of the Code in relation to supplementary proceedings do not in any way alter the rule as laid down by the decisions above cited.

Section 292 of the Code provides for the examination of a judgment debtor *as to his property.*Section 294 provides for the examination of parties indebted to or having property belonging to the judgment debtor. Section 295 provides that witnesses may be required to appear and testify in these proceedings in the same manner as upon the trial of an issue. That is, they may be subpoenaed and sworn in the same manner as on the trial of an issue. They may be examined as to any property the debtor may have. The Code goes no further, and never intended that parties, after the return of an execution, might do that which they could not do while the execution was in force, to wit, assail an insolvent’s discharge without action for that purpose.

The interposition of the discharge in these proceedings must be. as effectual as upon a motion to set aside an execution. There can be no reason for a different rule.

The case of *Stanton*v. *Ellis,*(2 *Kern.*575,) was an action commenced in 1852, (after the adoption of the Code,) on a judgment, and the discharge interposed, and the question was raised as to whether the recitals in the discharge were conclusive as to the jurisdictional facts. That case can have no bearing on this, except to show that an action on the judgment is the proper mode of proceeding, and that a discharge cannot be attacked collaterally.

*Wm. A. Coursen,*plaintiff, respondent, in person.

I. The defendant was relieved from the issuing of an *145attachment against him *only upon the condition*that he submit to an examination. He did not appeal from the order imposing that condition, and it must be considered finally binding.

II. The court will not, in the summary manner suggested by the appellant, decide that *the debt*upon which the proceedings are founded, is discharged. The insolvent’s discharge might warrant a discharge from arrest of the person, but that question is not now presented. *(Baker*v. *Taylor,*1 *Cowen,*165. *Reed*v. *Gordon, Id.*50. *Noble*v. *Johnson,*9 *John.*259. *Russell*v. *Packard,*9 *Wend.*431.)

*By the Court,*Monell, J.

The defendant Dearborn was very properly adjudged to be in contempt. He had disobeyed a regular order of one of the justices of this court, by refusing or neglecting to appear and be examined in proceedings supplemental to an execution in the action.

Upon the motion for an attachment to punish such party, he produced a discharge from his debts, including the judgment in this action, granted under the insolvent act of this state. It was however ordered, that the attachment issue, unless the defendant appeared at chambers and submitted to an examination in such supplementary procedings.

I think the appellant correct in his view, that the validity of his discharge cannot be disposed of in this proceeding. There is no provision in the Code for submitting any question of fact arising thereon to a jury, and I think now, as formerly, the creditor must resort to his action. Therefore when the discharge is produced all further proceedings upon the examination should be suspended, until the determination of an actipn to be brought upon the judgment.

In this case, however, the defendant did not appear on the day named in the order, when he might have produced *146his discharge and procured a suspension of the proceedings, but put himself in hostility to the order, and was subsequently, and very properly, adjudged to be in contempt. His discharge did not' purge this contempt, and the justice who heard the motion for an attachment, had the right to punish the defendant o.r to excuse him absolutely or conditionally. He saw fit to excuse him conditionally, by merely requiring him to appear in the proceeding for the purpose of being examined. The defend.ant ought not to have complained. The order was most lenient.

The order entered upon the motion required the defendant to appear and “submit to an examination.” The intention however as now understood, was merely to require a substantial .personal *appearance*in the proceeding, for the purpose of restoring jurisdiction in the justice who made the original order, which jurisdiction, failure to appear by the defendant, may have been lost. It was not intended to compel him to undergo an examination at all hazards. Therefore, upon the defendant’s appearing at chambers, and being sworn in the usual manner, he would have complied with the condition named in the order appealed from; and then upon presenting his discharge he might obtain a suspension of the proceedings and compel the plaintiff to sue upon the judgment, if he desired to dispute its validity.

With these explanations of the meaning of the order, there is no necessity for a modification of it.

Order affirmed.

Robertson, Ch. J. concurred,