Binn. 336, note. The rule now established in Pennsylvania, is, to extend the same courtesy to other states, as such other states show to them; to pay the same regard, and give the same effect to a discharge under the insolvent laws of any other state, as the courts of such state would do to discharges under the insolvent laws of Pennsylvania. Smith v. Brown, 2 Binn. 201; And this rule seems to prevail, rather from a cautious adherence to precedents than from an entire conviction of its soundness. In Walsh v. Nourse, 5 Binn. 385, C. J. Tilgham said, that hot without considerable reluctance, he had thought himself bound by former decisions, that is, bound to pursue the principle of reciprocity; and that if the matter were to be taken up anew, he should be for adhering to what he considered the true principle. The case of Wood v. Malin was thus: The defendant having been arrested on a capias ad respondendum, in an action for goods, wares and merchandise, sold and delivered, as appears by the affidavit for bail, applied to be permitted to file common bail, upon the ground that, since the making of the contract, he had been discharged from imprisonment, under an act previously passed for the relief of insolvent debtors, in the state of N. Y., where the debt was contracted, and where both parties resided at the time of the contract, and of the discharge; and the court held that he was not entitled to be liberated on common bail. In coming to the conclusion, says C. J. Ewing, 5 Hals. p 216; which I conceive to be proper on this occasion, the only serious difficulty I have met with, is the case of Stevenson v. Rowland, 1 Hals. 149; which must be admitted to be strongly in point, in support of the defendant's motion. Unhappily the reasons of the court, from which we might learn the grounds of the decision, are not given. In departing from it however, I feel less hesitation, because the case of Sturges v. Crowninshield, was not submitted to their consideration, and because one of the members, who then composed the court, on another occasion, laid down the following doctrine: Every state may prescribe the mode of administering justice within itself. It may say that the debtor shall not be imprisoned, or if imprisoned, that he shall be discharged from his imprisonment. The imprisonment itself is but the mere mode of enforcing the contract. But then the discharge of the person can have no force, but within the limits of the commonwealth, for the contract still remaining unimpaired and in its full force, either the state of Maryland, or any other sovereignty, will carry it into effect according to its own mode of administering justice, the discharge in Penn., notwithstanding, Vanuxem v. Harlehurst, 1 South. 202. In Hempstead v. Reed, 6 Conn. Rep. 480, which was on a note, defendant pleaded a discharge under the insolvent act of New York, in which state the contract was made and negotiated, and where both parties then and ever since lived; the court held, that such discharge, under the act of another state, which discharges a debtor, on his surrendering his property for the benefit of his creditors, from all his debts previously contracted, is a good defence to an action brought for the recovery of such debt, where it was contracted in, and between citizens of the state, under whose law the discharge was obtained. And such discharge is equally available in another state; but the laws of other states are deemed foreign laws, and must be proved as facts, as the courts here cannot judicially take notice of them, or of the proceedings under them. When such laws and proceedings are to be relied upon in defence, they should be set out specially in pleading. In 13 Mass. Rep. 5, Parker, C. J. said; That personal contracts were subject to all the consequences attached to contracts of a similar nature, by the laws of the country where they are made, if the contracting party is a subject of, or resident in, that country where it is entered into, and no provision is introduced to refer to the laws of another country. But this general language "even in regard to common contracts," says Judge Story, "as to the consequences of them, must receive many qualifications and limitations, resulting from the public policy, or the domestic laws of other states, where they are sought to be enforced, and the right and duty of self protection, against unjust foreign legislation." The court were much divided in this case; but it was son in ef 4. OGDEN V. SAUNDERS, 12 Wheat. U. S. Rep. 213. The plaintiff, a citizen of Louisiana, sought by writ of error, to reverse a judgment against him, by a citizen of Kentucky. finally deci The plaintiff below declared upon certain bills of exchange, ded by Mr. drawn in 1816, by one Jordan of Kentucky, upon defendant bejustice John low, Ogden, in N. York, (defendant then also being a resident fect declar in New-York,) accepted by him there, and protested for noning a dis payment. Defendant pleaded a discharge under an act of N. Y. of 3d April, 1801, for the relief of insolvent debtors, called the three-fourths act. The court in Louisiana rendered judgment for spect to a plaintiff upon a special verdict, thereby declaring the act void. citizen of an Judges Washington, Thompson, and Trimble were for reversal, on not amena the ground that the debt being contracted subsequent to the passage of the law, although the creditor was a citizen of Kentuc charge un der a state insolvent force in re other state ble to its laws. ky, and the suit instituted in Louisiana, the law of N. York and the proceedings created a bar. But Marshall, C. J., Duvall and Story, Js. were for affirmance. Johnson J. concurred in affirming the judgment, on the ground that the law of N. York did not effect the creditor Saunders, as he was a citizen of Kentucky, and had not submitted to the laws of N. York, by instituting his suit before her tribunals. The case of Shaw v. Robins, 12 Wheat. 369, note, was grounded on the same principles. 5. BOYLE, PLAINTIFF IN ERROR Y. ZACHARTE AND TURNER, DE FENDANTS IN ERROR, 6 Pet. U. S. Rep. 348. Marshall, C. J. said: The judges, who were in the minority The court recognize of the court upon the general question as to the constitutionality the distinc of state insolvent laws, concurred in the opinion of Mr. J. tion taken by Mr. jus Johnson, in the case of Ogden & Saunders. That opinion is, tice John therefore, to be deemed the opinion of the other judges who as- den v. Saun son in Og sented to that judgment. Whatever principles are established ders. in that opinion, are to be considered no longer in controversy, but the settled law of the court.. In Hempstead v. Reed, July T. 1827, 6 Conn. Rep. 484, in delivering an opinion, in which the other judges concurred, after citing Bent v. Baker, 5 Mass. Daggett, J. says: These appear to be sound legal positions, and hardly need support. Mr. J. Johnson, in Ogden v. Saunders, p. 362, 3, quotes this decision with approbation. So does C. J. Spencer, in 16 Johns. 249. In Hempstead v. Reed, defendant to an action on a promisso ry note, pleaded a certificate of discharge under an insolvent law of New-York; and Daggett, J. said: Would the matter upon the facts set forth, if correctly pleaded, avail the defendant before the tribunals in N. Y.? It must be in the affirmative in conformity to the decisions mentioned in U. S. S. C., 12 Wheat. 357, 369-because that must have been the precise point adjudged in those cases. Will such a defence be sustained in Connecticut? This must also be in the affirmative; 2 Conn. 84; 2 Mass. Rep. 89. The case of Baker & Wheaton, 5 Mass. R. 509, which seems to be the governing case upon this subject was upon a promissory note, made by defendant to one Chandler, and by him indorsed to plaintiff. The defendant pleaded in bar the several insolvent acts of Rhode Island, stating, particularly, all the proceedings under them, and averring, that at the time, and long before and after, the property of the first note was in The insol of one state Chandler, and that he and the said C. then, and long before, were, and now are, citizens and inhabitants of the said state; and that C. long after the said discharge indorsed the said note to the plaintiff. Parsons, C. J. When the contract was originally made, the parties were both citizens and inhabitants of Rhode Island, and the contract was there made, and there to be performed. The laws of Rhode Island, therefore, gave effect to the contract, and by those laws must the legal operation of it be determined. When, therefore, the defendant was discharged from this contract, lege loci, the promisee was bound by that discharge, as he was a party to the laws of that state, and assenting to their operation. But if, when the contract was made, the promisee had not been a citizen of Rhode Island, he would not have been bound by the laws of it, in any other state; and holding this note at the time of the discharge, he might afterwards maintain an action upon it in the courts of this state. If the note had been transferred to the plaintiff, a citizen of this state, while it remained due, and undischarged by the insolvent laws of Rhode Island, those laws could not effect his rights in the courts of law in this state, because he is not bound by them. But on the admission that the note was discharged, pursuant to the laws of Rhode Island, while it was the property of a citizen of that state, who was bound by its laws, the contract then no longer exists; and a subsequent indorsement of the note is void, because there is nothing to pass by the indorsement. A note functus officio cannot be negotiated. 6. WATSON V. BOURNE, Oct. T. 1813, 10 Mass. Rep. 337, (3d ed, The action was debt upon a judgment rendered in Rhode vent laws Island; and the defendant plead a discharge under the insolvent cannot have laws of that state. Replication, that the plaintiff, at the times the effect to when the debt accrued, and proceedings were had under the insolcontract un vent laws, was, and still is a citizen of Massachusetts. Held, that the replication was good. discharge a less the cre ditor be longs to the state; and is Sewall, J. in delivering the judgment of the court, observed: amenable that the decision in Baker v. Wheaton, is placed altogether upon to is laws. the ground that the contract originated between citizens of the state of Rhode Island, and that it remained due there; the cred itor and debtor continuing members of that state, until the latter obtained a legal discharge under the insolvent laws there in force. A subsequent assignment of the contract to a citizen of this state, could not have the effect to revive the debt; for the contract was determined before the assignment, or all legal remedies on it had been taken away by the lex loci, where both parties were subject to the provisions and effect of the statutes of insolvency. But in the case at bar, the creditor had never been a citizen of Rhode Island; and a contract, upon which a transitory action arises, is not made local by a judgment recovered upon it. 3. TAPPAN V. POOR, March T. 1819, 15 Mass. Rep. 396, 2d. ed. (old, 419); BRADFORD V. M'FARLAND, 13 ib. 18. under the mer- insolvent mer- other state laws of an The action was to recover of the defendants, as acceptors of Adischarge certain bills of exchange, drawn by the plaintiff, a chant of Boston, and accepted by the defendants, chants of Baltimore. The defendant's pleaded, in discharge of can never apply when their persons, estates and effects, save and except any property, it will inju acquired or to be acquired by them, &c.; actio non, because, &c. feet the riously ef they were discharged from all debts by virtue of proceedings had rights of cit in Maryland. izens in the state in which the suit is Parker, C. J. By the laws of Maryland, recited in the pleas in bar, it is made a condition to the discharge of an insolvent brought debtor under those laws, that he should by deed convey all his property and effects to the trustee to the use of the creditors. The replication avers, that the defendant P. had estates in Boston in right of his wife, which were not conveyed: and this is admitted by the demurrer. The conclusion is, that his discharge is no bar to the action. But there is a general objection, which is conclusive against the defence set up. These acts are no otherwise binding upon the citizens of this state, than upon the principle of comity; which cannot apply, when the law is injurious to the rights of the citizens of the state where the action is brought. The plaintiff had acquired a lien upon the estate in Boston, before the proceedings in Maryland were instituted. Consequently a plea of discharge cannot avail. It is not admissible, that the debtor should commence proceedings in another state, to avoid the process here, and bring a discharge, obtained without the consent of his creditor, to stop the course of justice. |