Appeal from the District Court of the Sixth District, Yolo County.

This action was brought to obtain an order enjoining and restraining Wm. Minis, the Sheriff of Yolo County, in whose hands the execution was placed for service, and I. W. Jacobs from further proceeding upon an execution issued under a judgment rendered in favor of the plaintiff in the action of Jacobs v. Oaleb Davis, John Davis and M. A. Rahm.

Defendant demurred to the complaint on the grounds: 1st. Because it does not state facts sufficient to constitute a cause of action; and 2d, Because the facts stated show that plaintiff is not entitled to relief in chancery. The Court overruled the demurrer and rendered judgment, ordering and decreeing that the defendants, and each of them, be forever enjoined and restrained from further proceedings to collect the judgment from plaintiff, M. A. Rahm.

The other facts are stated in the opinion.

First — The bill does not state facts sufficient to constitute a cause of action, because:

1st. It is not alleged that the judgment was procured by fraud, or through any other cause for which equity will interfere.

2d. There is no Regularity in the entry of the judgment. The only thing alleged against, to wit: that it was entered in contempt of Court, is not proved.

3d. If the judgment is void, as alleged, then the seizure under the execution would be a trespass. No fact tending to show irreparable injury is alleged. The plaintiff had an adequate remedy at law. (Demitt v. Hays, 2 Cal. 463; Sup-ton v. Supton, 3 Id. 121; Logan v. Hillegass, 16 Id. 200; Tevis v. Filis, 25 Id. 516; Leach v. Day, 27 Id. 645; N. C. & 8. O. Go. v. Kidd, 87 Id. 307; Hagarv. Shindler, 29 Id. 47.)

Second — Defendant’s remedy is by appeal or motion in tbe Court below. (Imlayv. Oarpentier, 14 Cal. 174; Green v. Thomas, 17 Id.-86; Phelps v. Peabody, 7 Id. 50; Pico v. Sunol, 6 Id. 294.)

Third — Tbe judgment, tbougb upon an antecedent debt, being recovered after tbe discharge in insolvency, every presumption sustains it. Everything which in law might have supported the recovery will be presumed. (Hahn v. Kelly, 34 Cal. 391.) A new promise might have been presumed. (Smith v. Richmond, 19 Cal. 476; Feeney v. Daly, 8 Id. 84.) Fraud on the part of the insolvent in concealing property might have been proved. (Ellsassar v. Himter, 26 Cal. 279; Insolvent Act, Sec. 32; Hittell, Art. 3, 841.)

Fourth — The decree of discharge, when relied upon as a defense, must be pleaded; and in this case it might have been pleaded by plea puis darrien continuance. If it was not pleaded, the privilege was waived. If it was pleaded and proved, the remedy was by appeal.

Fifth — Equity will not interfere where the party by negligence has failed to avail himself of his legal remedy, even though it be charged that such negligence was superinduced by the fraud of the adverse party. (Phelps v. Peabody, 7 Cal. 50.

Sixth — The decree does not operate upon judgments founded upon antecedent debts, except in cases where the judgments are rendered intermediate, the filing of the petition and the decree. (Imlay v. Oarpentier, 14 Cal. 174.)

Seventh — The only ground alleged by the complaint for the interference of a Court of equity is that the plaintiff in the judgment, committed a contempt of Court in prosecuting his cause against the judgment debtor. And even this charge was not sustained; because the judgment was not rendered until nearly four months after the stay of proceedings had ceased to be operative.

The original debt which is not destroyed by the decree of discharge, is the cause of action, not the new promise. It is not necessary to plead the new promise. In fact it would be bad pleading to do so. In case the insolvent answers by pleading his privilege, the plaintiff in order to establish a waiver, may plead the new promise by way of replication where the code requires a replication; or prove it on the trial, where the replication is not required.

For these reasons, the fact that the suit in which the judgment was recovered was commenced before the petition in insolvency was filed, can make no difference. {Smith v. Richmond, 19 Cal. 476.)

The naked decree in insolvency is only a part of the record of the County Court. The Court erred in refusing to put in evidence the whole record. {Barrett v. Carney, 33 Cal. 530.)

First — The judgment obtained by Jacobs was valid on its face, but void for want of jurisdiction. (See Insolvent Act, § W.)

The order staying proceedings in effect, transferredJacobs action to the Insolvent Court, where he might resist the application of respondent for a discharge from his indebtedness. (Insolvent Act, § 14.)

All suits instituted anterior to the application become merged in the insolvency proceedings. A discharge in the Insolvent Court operates as a discharge from all debt, except those secured by lien. (Insolvent Act, \ 24.)

No judgment can be recovered against a party after' his discharge in the Insolvent Court without notice, so that he may appear and plead his discharge as a privilege. No notice being given, he has a right to remain silent.

When respondent was discharged from his debts, the Jacobs debt was included, and as he had no opportunity to plead the discharge, and as Jacobs disregarded the order staying all proceedings, Eahm certainly was entitled to resort to equity to stay the judgment thus obtained.

The debt for which the action was brought was discharged by the discharge in insolvency. (Dresser v. Broolcs, 3 Barb. 420).

Even after insolvent’s discharge, the avenne is open to a creditor to attack the proceedings, but it must be done by a direct proceeding, and not collaterally. (Insolvent Act, §32.)

Second — The jurisdiction of a Court to grant an injunction in a case like the one at bar, is fully recognized, and in fact conferred upon them, by our statutes. (Practice Act, Sec. 112.)

The jurisdiction once undoubtedly existed. It having once existed, it continues in existence, unless taken away by statute. (Story’s Eq. Secs. 64 I, 885, 886 and 887).

As to the power of a Court to enjoin proceedings at law, we refer as follows: Foster v. Wood, (6 Johns. Ch. 80;) Story’s Eq. Secs. 74-5, 877, 879, 880, 885-6-7; 3 leading cases in Eq. Secs. 155-6.