(C) OF THE ASSIGNEES. 1. KRAUSE V. BEITEL, ET AL. 1821, 3 Rawle's Penn. Rep. 199. A trustee of 'The interest of the trustee of an insolvent debtor's debts, be- an insolvent ing that of the insolvent himself as it stood affected by counter- has all the interest, acting equities at the time of the assignment, the creditors are which the not purchasers, and the trustee takes for their benefit, but sub- had. ject to all the rights which may grow out of the original trans action. insolvent 2. where two are appoint ed trustees; PARK V. GRAHAM, 1818, 4 Sergt. & Rawle's Penn. Rep. 549. In Pennsyl If two-trustees are appointed under the act; and one only gives vania, security, he cannot maintain a suit in his name alone. Tilghman, C. J. observed, “By the 3d section of the act, it is provided, that every trustee, before he acts as such, shall give bond, &c. and in case of a refusal the court may appoint another &c. The power of appointment devolved on the court, who, if er they had thought proper, might have appointed but one trustee; suit in his having appointed two, one has no power to act. 3. INGRAHAM V. HALL, 1824, 11 Sergt. & Rawle's Penn. Rep. 78. Where a suit was brought for the use of a party who is discharged as an insolvent debtor pending the action, the court will ́permit such action to be marked for the use of the assignees. (D) PAYMENT OF THE DIVIDENDS. 1. THE PEOPLE V. ROSSITER, Feb. T. 1825, 4 Cowen's N. Y. Rep. 143. and one re fnses to qua lify, the oth er cannot maintain a' own name. not bound The state is not bound by an insolvent's discharge under the The state is act of the state, unless it is named in the act. 2. U. STATES V. WILSON, 8 Wheat. U. S. Rep. 253; U. STATES V. v. HOAR, 2 Mason's Rep. 311, 312. by a state act, un Nor the U. The United States are not affected by any state insolvent S. by any Jaw. state insol vent law. What is a (E) OF THE DISCHARGE*. 1. ROOSEVELT V. KELLOGG, Aug. T. 1822, 20 Johns. N. Y. Rep. p. 208. sufficient If the discharge state enough to give the court or judge judischarge. risdiction; it may then state, that such proceedings were, thereupon had, &c., setting forth the discharge itself, it will be sufficient. And if the discharge states the manner in which the assignment was directed, which pursues the words of the act; and afterwards that a certificate of the assignees was produced, that the insolvent had made such assignment; the fair construction of which is that he has complied with the statute. Money paid as in dorser of a note subse quent to the of the re not a debt 2. STODDART V. ALLEN, 1829, 1 Rawle's Penn. Rep. 258. The assignment in this case was made for the benefit of all such creditors as should become parties and execute a release of execution their debts, within a specified time. Held, that a creditor who lease by the released within the time stipulated, but subsequently paid notes creditor is which he had endorsed for the accommodation of the assignor, on which he was not entitled to a dividend upon the money paid. The cause is entitled of action arose after the assignment, and arose by their taking up endorsed paper of a debtor, after they had executed a release of all actions and all causes of actions then existing; not of causes of action which should exist thereafter. to a divi dend. Sureties 3. SELFRIDGE V. GILL & TRUSTEE, March T. 1808, 4 Mass. 95. Where the holder of a note proved his demand under a comitors; and mission of bankrupt, issued against the first endorser; and afterwards, but before the receipt of any dividend, received payment of the note from the second endorser; and then received cannot prove their claims. " * The late bankrupt law of the U. S. provided that no bankrupt "shall be entitled to his certificate of his discharge, or to any benefit of the statute, without the assent of two thirds in number and value of his creditors who have proved their debts." In Lummis v. Fairfield, 5 Mass. 248, it was decided that such assent was necessary to entitle the bankrupt to any benefits of the act; and for want of it a plea in bar of an action was held bad. If the creditors, said Parsons, C. J., should unreasonably refuse their assent, the statute has vested them with this control over the certificate, and a court of law cannot deprive them of it. The commission wi!! then have the effect of a statute execution, which like private executions might take the property of a bankrupt, towards the satisfaction of his debts, without discharg ing them. his dividend under the commission: Held, that he was accountable to the second endorser for the amount of the dividend so received. Parsons, C. J., in delivering the opinion of the court, observed,-The case of sureties under the bankrupt laws, who are absolutely liable, but having no cross security, cannot prove their claims, because they are not creditors at the time of the bankruptcy, is a very hard one. The holder of the note, if he does not call on the surety, until after he has received his dividend, must credit the surety with the amount of his dividend. The surety certainly lies at the mercy of the holder of the note, whether he will prove his claim or not; or, if he has proved it, whether or not he will strike his name out of the list of claims, and receive no dividend. But when a dividend has been made on his claim, the matter appears by our bankrupt law to be fixed. The claimant is entitled to his dividend, and no court is authorised to prevent his receipt of it, or to cause it to be distributed among the other creditors. 4. Cases in LANSING V. PRENDERGAST, 9 Johns. N. Y. Rep. 127; STRONG V. WHITE, 9 b. 161; KENNEDY V. STRONG, 10 ib. 289; KIP V. BANK OF N. YORK, 10 ib. 63; 6 ib. 126. A discharge is no bar to an action on an express covenant to which the discharge is pay rent, where the rent accrues subsequent to the discharge; not a bar. nor will it discharge a partner from a partnership debt; nor a surety or endorser, who pays the debt after the discharge; nor bail, where ca. sa. was issued after the discharge, although the judgment was recovered before; nor is a discharge a good plea in bar to an action against a factor or trustee, for goods delivered to him on sale. Property which an insolvent has in trust does not pass by the commission. It is difficult of tracing the trust money which prevents the application of the rule. III. STATE INSOLVENT LAWS-EFFECT OF. 1. BLAKE V. WILLIAMS, 6 Pick. Mass. Rep. 286; Fox v. ADAMS, 5 Greenl. Me. Rep. 245. laws and be- the laws of as- are receiv other states To give force to a foreign insolvent law would be yielding to Foreign the laws of another country; and though there is distinction tween an assignment made abroad by force of law, and an signment made by the debtor voluntarily; yet it has been held ed and al VOL. VI. 9 lowed by without pre judice to our our own comity; but that an assignment in the letter case was not to operate to the prejudice of a citizen, who had acquired a lien on property by citizens. attachment, especially in a case where the assignment was made subsequently. In giving effect to foreign laws, the court will see that our own citizens are not prejudiced thereby. The chief justice, in delivering the judgment of the court, observed,— Though the legal effect of a state insolvent law is to a certain extent admitted in Ogden v. Saunders, 12 Wheat., yet this effect is limited by the decision, to cases between parties who are both citizens of the state where the law is enacted, and to suits brought in the courts of that state. Conflicting decisions in N. Y. but held that the place where the 2. PENNIMAN V. MEIGS, Oct. T. 1812, 9 Johns. N. Y. R. 325; IN THE MATTER OF WENDELL, 19 ib. 153; MATHER, ET AL. V. BUSH, 16 ib. 233; SHERRILL V. HOPKINS, 1 Cow. N. Y. R. 103; ROOSEVELT V. CEBRA, 17,Johns. R. 103. Formerly, it was considered that a discharge under state insolvent laws, was a bar to all suits brought in the state where the law of the discharge was obtained, upon an antecedent contract, wherever made; 9 J. R. 325. But the law is now changed; 4 Wheat. 122, 209; and it is now quite settled, that a contract and was to made out of the state, between parties, not citizens or inhabitbe perform ed must gov ants of the state, cannot be affected by state insolvent laws, to which they are not amenable. It is held, also, that a contract between citizens of the same state, is not affected by the discharge of the debtor, under an insolvent law of that state, passed subsequent to the making of the contract; 4 Wheat. 122; 17 J. R. 103; 19 ib. 153. contract was made ern. In Sherril v. Hopkins, it was held, that the law of the place where the contract was made, must govern the construction of the contract; and that, whether the parties to the contract are inhabitants of the place or not. The contract is made with reference to those laws, and they, therefore, form a part of the contract. Accordingly a contract made in New-York, in 1806, between citizens of Massachusetts, was held to be barred by a discharge under the insolvent act of 1801. If, however, it ap pear upon the face of the contract, that it was to be performed at some other place, or was made wh reference to the laws of some other place, then it is otherwise. The bond in this case, say the court, having been made in this state, and it not appearing upon the face of it, that it was to be paid elsewhere, is to be construed according to the laws of this state. It being subsequent to the act, it does not affect the obligation of contracts; Mather v. Bush, 16 J. R. 233. The plaintiff having failed to aver what the law of Massachusetts is, we are to presume it to be the same with our own. vent law the same In Mather v. Bush, the court held, that a contract made be- An insol tween citizens of a state, is made with reference to the laws of may affect that state; and if there is then existing there an insolvent law, citizens of a discharge of such an insolvent debtor is not a law impairing state; and subsequent the obligation of contracts, within the constitution of the U. contracts. States. Spencer, C. J. in delivering the judgment of the court, observed, that the S. C. in Blanchard v. Russel, 13 Mass. 16, expressed an opinion which commands our full assent. They say, "a law which is in force when a contract is made, cannot be said to have that effect, (of impairing the obligation of contracts;) for the contract being made under the law, is presumed to be made with reference to it, and the parties are legally conusant of it, at the time: and the law is a part of the contract." After a review of the cases, and distinguishing the case then before the court from Sturges v. Crowninshield, decided in the S. C. of the U. S., the learned C. J. concludes thus: "On the whole, after our laws of insolvency have been continued, with very little variation, except as to the act of 1811, from the period of the formation of the constitution of the U. S.; after we have repeatedly pronounced regular and fair discharges under them, to be valid and effectual; and when the cases decided by the SC. of the U. S. are so perfectly distiguishable from the present, it is too much to ask this court to take a step in advance of the U. S. C. and to anticipate their decision on a question, certainly not decided. vious con In Roosevelt v. Cebra, it was held that a discharge under the But not pre insolvent law of New-York, of 3d April, 1811, was no bar to tracts. an action on a contract made before the passing of that act. The court observed, that the case could not be distinguished from Sturges v. Crowninshield, 4 Wheat. 122; and without entering further into a discussion of the question, we shall content ourselves with referring to Mather v. Bush, and with expressing our regret at the injurious consequences which must result from a decision which we have been compelled to pronounce, in obedience to the constitution of the U. States. 3. A general review of WOOD V. MALIN, 5 Halst. N. J. Rep. 208. Ewing, C. J., in delivering the judgment of the court, observ- the cases up ed, "The effect of the discharge of an insolvent debtor, and the on this sub ect. |