position dividend in the bankruptcy proceedings. These proceedings resulted in the discharge of the bankrupt. Held, that while a discharge in bankruptcy has in itself no extraterritorial operation, yet the holder of the bill, by proving his claim and accepting a dividend, made himself a party to the proceedings, and became bound by the discharge; and

2. SAME RECOURSE AGAINST DRAWER.

That the holder thereby precluded himself from recourse against the drawer, also a citizen of New York.

3. SAME EVIDENCE OF CONSENT BY DRAWER TO COMPOSITION.

Evidence considered, and held insufficient to show consent by drawer to the composition.

EARL, J., dissenting.

Thos. H. Hubbard, for appellants, Phelps and others. Frank D. Sturges, for respondent, Boland.

FINCH, J. The defendant, a citizen of this country, drew a bill of exchange to his own order, at 60 days' sight, upon Johnston & Co., who were English merchants residing in Liverpool. The defendants sold it to the plaintiffs, who were American bankers, residing in New York. The bill was duly accepted by Johnston & Co., payable in London, who thereby, as to the plaintiffs, became the principal debtors, the drawer being contingently liable upon their default, and holding the position of a surety for the payment of their debt. The bill was protested for non-payment at its maturity, Johnston & Co. having failed, and being unable to meet their liabilities, and the holders now sue the drawer to recover its amount. The latter defends upon the ground that, as surety, he was entitled, upon payment of the bill, to be subrogated to the rights of the holder, and that the latter had so destroyed, or materially impaired, those rights as to have lost all remedy against the drawer. The fact relied on as the cause and basis of this result is that the acceptors were discharged in bankruptcy, upon a compromise, by the English courts; and that the plaintiffs, who were originally not parties to the proceeding, became so afterwards, voluntarily, and proved their claim, and accepted the composition decreed, whereby the judgment became binding upon them in this country as well as in England, and so the acceptor was wholly discharged, and right of subrogation as surety rendered valueless.

The answer made to this contention is that the foreign discharge in bankruptcy was operative against the holders in this country even although they had never become parties to the proceeding, and so the release of the acceptor flowed from no act of theirs, and consequently they had not invaded or affected the drawer's rights.

The authority pressed upon our attention, and which we are asked to follow, is that of May v. Breed, 7 Cush. 15. The deserved reputation of the court, and the great ability of its reasoning, may well make us hesitate and reflect before adopting a contrary conclusion; but, deeming the question substantially settled both in our own state and in the federal courts adversely to the opinion cited, we feel it our duty to acquiesce in that result.

Two propositions are conceded on all sides. That the title of a foreign assignee, conferred by the foreign bankrupt law, may be asserted in our courts, but cannot operate or be effectual as against our own citizens, pursuing their remedies as creditors against the bankrupt or his property, within our jurisdiction, or when the recognition of such title is against our public policy, is conceded in May v. Breed, and has quite recently been decided by us, (In re Waite, 99 N. Y. 433; S. C. 2 N. E. Rep. 440;) and that, as between the states of the Union, a discharge by the law of one will not bar the right of a creditor who is a citizen of another, and not a party to the proceeding, is equally well settled by a substantial concurrence of authority. The argument of the learned chief justice in the Massachusetts case is largely occupied with an effort to show that these two propositions do not decide the case of a discharge by the foreign court of a debt or obligation contracted under the law of its

jurisdiction, and to be there paid and discharged. It is asserted that the cases between citizens of different states in our own country rest, not upon doctrines of international law, but upon provisions of the federal constitution, and governmental relations peculiar to our national organization.

The most important and authoritative of these is Ogden v. Saunders, 12 Wheat. 217; and it is subjected to the double criticism that it did not in all respects reflect the opinion of the court, and that it decided no question of international law. The first suggestion was fully and finally answered in Baldwin v. Hale, 1 Wall. 223, where the authority assailed was vindicated, and its doctrine expressly ratified and affirmed. The second suggestion seems to us not sustained by a careful reading of the case. The question before the court was stated to be "whether a discharge of a debtor under a state insolvent law would be valid against a creditor and citizen of another state who has never voluntarily subjected himself to the state laws otherwise than by the origin of his contract," and was argued in two forms: First, as a question of international law; and, second, under the federal constitution. Upon the first branch of the argument the English rule was admitted to be that "the assignment of the bankrupt's effects under a law of the country of the contract should carry the interest in his debts, wherever his debtor may reside;" and then it was declared to be "perfectly clear that in the United States a different doctrine has been established; and, since the power to discharge the bankrupt is asserted on the same principle with the power to assign his debts, that the departure from it in the one instance carries with it a negation of the principle altogether." At a later stage of the opinion attention is called to the circumstance that the discharge is always and necessarily an adjudication of a court, and depends wholly upon the operative force of that adjudication; and that neither comity nor justice requires that we shall hold one of our own citizens bound by a judgment of a foreign court to which he was not a party, could not be compelled to be a party, and of which he might have had no notice.

I have less hesitancy in thus asserting the error of May v. Breed in construing the decision of the federal court as standing outside of international law, and so not authority in a case like this, because I observe that Mr. Redfield, in editing a new edition of Story on the Conflict of Laws, has deemed it necessary to criticize his author's assertion of the same error, (section 341a;) and more especially because the supreme court itself, in the later case of Baldwin v. Hale, supra, put its decision mainly upon a ground not peculiar to our federal relations, but upon the effect of a foreign judgment. This last case also, referring to the Massachusetts doctrine,-"that, if the contract was to be performed in the state where the discharge was obtained, it was a good defense to an action on the contract, although the plaintiff was a citizen of another state, and had not in any manner become a party to the proceedings,"-expressly repudiated the conclusion; saying that, “irrespective of authority, it would be difficnlt, if not impossible, to sanction that doctrine."

In our own state two cases have been decided in substantial accord with the ruling of the federal court, (Gardner v. Oliver Lee & Co.'s Bank, 11 Barb. 558; In re Waite, supra.) The latter case stated the general rule without grafting upon it any exception founded upon the origin of the contract. We are content to follow these authorities, without entering into the wide and difficult discussion in which they culminated. It follows, therefore, in the present case, that the foreign discharge would have been, in and of itself, no defense to the American holder of the bill. If property of the bankrupt should be found in our jurisdiction, the plaintiffs were at liberty to proceed against it by attachment, and collect their debt out of such property; and the foreign bankruptcy proceedings would neither prevent nor stand in the way, for the sufficient reason that their only force in our jurisdiction comes from our consent, and we have chosen thus to limit that consent. This right remaining to the plaintiffs was a valuable

right. It charged with the payment of the protested bill any present or future acquisitions of the acceptors which might come into our jurisdiction, and might result in the collection of the whole debt, or a compromise settlement, induced by the desire or interest of the debtors to have access to our markets and freedom to resume their business among us. To that right, thus valuable and material, it was the privilege of the surety to succeed by way of subrogation, whenever he should pay the debt, and the plaintiffs could not deprive him of it, or impair and destroy it, except at the peril of releasing him from his liability. Just that was what the plaintiffs did. Tempted by the compromise offered, they sought to obtain the defendant's consent to its acceptance by him. That consent he withheld, but they, acting upon their own conceptions of what was most for their interest, voluntarily submitted themselves, and their rights as creditors, to the foreign jurisdiction, proved their debt, and accepted the compromise decreed. The condition of the dividend was a release of the debtor. They could not take the compromise and avoid the condition, and so, by their act, they discharged the acceptors entirely and everywhere. That such is the effect of their voluntary submission to the foreign jurisdiction is inevitable on principle, and has been often decided. Gardner v. Oliver Lee & Co.'s Bank, supra; Clay v. Smith, 3 Pet. 411. The unavoidable consequence follows. The creditor having, by his own voluntary act, released the debtor from all remaining liability, his surety is discharged. The courts below so held, and we think correctly.

But another suggestion has arisen among us, original with the court, and not at all urged in the brief of counsel, prepared with great thoroughness and ability. That suggestion is that Boland consented to the acceptance of the dividend by plaintiffs, and so lost the right to complain; and the evidence on which this is founded is said to exist in two letters which passed between the parties. It is not pretended that plaintiffs' letter asks Boland's consent to their acceptance of the dividend, or that he, in terms, gave that consent, but such consent, not directly asked or given, is sought to be inferred from what was written. The letters are but the declarations of the parties bearing on the issue, and none the less so because they happen to be in writing. The proper inferences to be drawn from them were questions of fact more or less affected by the other evidence in the case. Whether, from the language used, Boland meant to give his consent and waive his rights, or plaintiffs understood him to consent, and acted upon that understanding, or without it, were certainly inquiries for the jury, and not for the court. But neither party asked to go to the jury upon any question of fact, and each, by asking judgment in his own favor, waived any possible question of fact, and conceded that only questions of law were involved. Were this otherwise, the result would not be changed. As I have said, plaintiffs did not ask Boland's consent to their proving their own claim. On the contrary, they asked him to prove his, in order that they might not be compelled to prove theirs. The plain meaning was: We ask you to prove yours. If you decline, we shall prove ours, at all events. To this request, the only one made, Boland returns a refusal. That it is politely said in the phrase addressed to the counsel, "I would much prefer that your clients adopt some other course for securing to themselves dividends," means only, in connection with their explicit avowal, "do it yourselves, if you choose to do it at all;" and then, as if fearing the very misconstruction now suggested, he adds: "I think, upon the whole, it may be better to leave the matter as it stands at present, rather than complicate it by assuming to be bailee of any funds they may claim as theirs. I do not aspire to the position." Unquestionably his meaning is, "It is best that neither of us touch this dividend, and I, at least, refuse." Language must be tortured to make this a consent, and a waiver of the surety's rights.

The judgment should be affirmed, with costs.

(All concur, except EARL, J., dissenting, and RUGER, C. J., not voting)

(103 N. Y. 541)

PEOPLE ex rel. SUPERINTENDENTS OF THE POOR OF THE TOWN OF OSWEGATCHIE v. BOARD OF SUP'RS OF ST. LAWRENCE CO.

(Court of Appeals of New York. November 30, 1886.)

POOR AND POOR LAWS-TOWN AND COUNTY POOR-LIVINGSTON COUNTY, NEW YORK, ACT -LAWS N. Y. 1845, CH. 334; ID. 1882, CH. 28; ID. 1846, CH. 245.

The enactment of chapter 28, Laws N. Y. 1882, making the town of Oswegatchie a separate and distinct poor-district, did not operate as a repeal of chapter 245, Laws 1846, by which the privilege is extended to the supervisors of that county to adopt. the Livingston county act, abolishing the distinction between town and county poor; the two acts not being repugnant to each other, and repeals by implication not being favored.

Mandamus by the superintendents of the poor of the town of Oswegatchie, county of St. Lawrence, to compel the board of supervisors of the county to audit and allow an account for certain expenses incurred in the temporary support of county paupers. Judgment for plaintiffs. Defendants appeal. The facts are stated in the opinion.

D. O'Brien, Atty. Gen., for relators. Leslie W. Russell, for respondents.

RUGER, C. J. The hearing of the application in question was had upon affidavits furnished by the relators containing a statement of the facts upon which the relief was claimed. These statements were not traversed by the defendants, and by proceeding to a hearing without doing so they admitted their truth. The course pursued was equivalent to a demurrer on the part of defendants, and it can succeed only by showing that, upon the facts stated, the relators were not in law entitled to the relief demanded.

The affidavits allege that the distinction between town and county poor at the time the transactions in question occurred existed in St. Lawrence county, and that the superintendents of the poor of the town of Oswegatchie had necessarily expended for out-door relief, in the temporary support of county paupers, a certaim sum of money; that an itemized account of such expenditures, duly verified, was made out by the relators, and presented to the defendants at their annual session in 1884, with a request that the same be audited and allowed; that said board of supervisors "refused to audit or allow said account, or any part thereof, on the ground" "that through its action in 1883 it had adopted the Livingston county act; and that by the alleged adoption of said act the said corporation could not make a legal charge against the county of St. Lawrence for out-door relief for county paupers." statement thus made was equivalent to a denial by the defendants of the allegations of the relators that the distinction between county and town poor existed in said county, and formed an issue of law upon that question. It is not denied but that the action of the board of supervisors in adopting the Livingston county act, if legal, abolished the distinction between town and county poor with reference to temporary relief in St. Lawrence county, and the question is whether such board had power to adopt it.

The

It is claimed by the respondent that the enactment of chapter 28 of the Laws of 1882, making the town of Oswegatchie a separate and distinct poordistrict, operated as a repeal of the privilege extended by chapter 245, Laws 1846, to the supervisors of that county to adopt the Livingston county act. This claim is based upon the theory that there is such a repugnancy between that act and chapter 28 of the Laws of 1882 that they cannot both be executed and administered, and that it must be inferred therefrom that the legislature intended to repeal the privilege conferred upon boards of supervisors by the Laws of 1846 to adopt the provisions of a hostile and repugnant act.

Upon a careful examination of the several acts referred to, and of the provisions of the Revised Statutes relating thereto, we have been unable to see

any such repugnance between those acts as is claimed to exist. By the general law of the state, boards of supervisors have power at will to abolish or revive the distinctions existing in their counties between town and county poor. 2 Rev. St. (7th Ed.) 930. They also had power to abolish such distinction, and make the support of all the poor of the county a county charge. 3 Rev. St. (7th Ed.) 1858, § 24. By chapter 334 of the Laws of 1845, commonly called the "Livingston County Act," all temporary relief afforded to paupers in that county was made a charge upon the several towns in which said paupers resided. By chapter 245 of the Laws of 1846 the boards of supervisors of any county in the state were authorized to adopt the provisions of this act, and extend and apply the same to their respective counties. The board of supervisors of St. Lawrence county did, in 1883, and presumably before any of the transactions involved in this litigation occurred, by resolution adopt the provisions of said Livingston county act. The necessary effect of this action, if duly authorized, was to make such temporary relief as might be extended to paupers in the several towns of St. Lawrence county, by the authorities thereof, a town charge.

We are of the opinion, however, if the adoption of the act in question conflicted with or was repugnant to the provisions of chapter 28 of the Laws of 1882, that the board of supervisors had no legal power to accept the privilege accorded by the act of 1846. It cannot be supposed that the legislature provided a law to regulate the relations existing between a county and its several towns with respect to the support of the poor, and then left it optional with either of said parties to nullify the legislative will at its pleasure. The only affirmative provision in the law of 1882 defining the liabilities of the respective towns in the county of St. Lawrence, and of the county, for the support of the poor, is contained in the first section of the act, reading as follows: "The town of Oswegatchie shall not hereafter be subject to taxation for the support and maintenance of the town poor of or in the other towns of the county of St. Lawrence, nor shall the other towns of the county of St. Lawrence be taxed or required to contribute to the support of the town poor of or in the town of Oswegatchie; but such town of Oswegatchie, for all the purposes of supporting [its] poor within its limits, and carrying into effect the laws of the state, shall be a separate and distinct district." It will be observed that no reference is here made to county poor, and the whole force of the enactment is directed to the rights and liabilities of the several towns in respect to town poor. The act then proceeds, and, among other things, provides that five persons named shall constitute a corporation, under the name of "The Superintendents of the Poor of the Town of Oswegatchie," for the purpose of administering the poor laws of such town. They are to have the sole and exclusive care and management of the poor in such town, and are required to provide for and maintain such persons in the manner mentioned in such act; and for that purpose are invested with all of the powers and authority now vested by law in overseers of the poor of towns, and in superintendents of the poor of counties, not inconsistent with the provisions of this act. They are required to visit the poor at their residences, to inquire into their circumstances and ability to support themselves, and, in their discretion, to direct either permanent or temporary relief for such persons. They are also authorized to "so contract for, purchase, and provide provisions, fuel, clothing, and other necessaries for the support of or distribution among the poor as in their judgment they may deem necessary." It was further provided "that nothing in this act shall be construed as to require or compel the town of Oswegatchie to support any county pauper or state pauper. Neither shall it be construed as exempting or relieving the town of Oswegatchie from paying its full share of the expense of supporting the county or state poor.'

It is not claimed that this act established any new rule for the support of town poor in the several towns of St. Lawrence county, and it is evident that