1 Cow. 103 | N.Y. Sup. Ct. | 1823
The question, presented by this demurrer, is, whether a discharge, under our insolvent act, of April 3, 1801, which not only liberates the person of the debtor, but discharges him from all liability for the debt, is a good plea, in bar to a suit upon a bond, executed in this state, in 1806, the obligor and the obligee being, at the time of giving the bond, citizens and inhabitants of another state. Anterior to the cases of Sturges v. Crovminshield, and McMillan v. McNeil, in the Supreme Court of the United States,
But the Jaw is undoubtedly changed, by the cases to which I have alluded; and it is now clearly settled, that a contract, made out of this state, between parties, not citizens or inhabi•tants of this state, cannot be discharged by our insolvent laws. To give to them that operation, it is held, would be to make them laws impairing the obligation of contracts. And the power of passing such laws being prohibited to the states, by the constitution of the United States, they are, of course, unconstitutional and invalid. This is the precise doctrine of the case of McMillan v. McNeil. There the parties to the contract were inhabitants of South-Carolina, and the contract was made there. McMillan, the debtor, subsequently removed to the state of Louisiana, where he. was duly discharged from all his debts, under an insolvent law of that state. To a suit, brought by McNeil, against him, upon the contract made in South-Carolina, he pleaded his discharge. Upon demurrer to the plea, the discharge was held invalid, on the grounds which have been stated.
The case of Sturges v. Crowninshield, of Rosevelt v. Ce-bra,
This Court, in Mather v. Bush, held, that the insolvent act did not impair the obligation of the contract; and that the discharge was, therefore, valid : because, the contract having been made between citizens of this state, after the passing of the law, “ was made under the law, and is presumed to have been made with reference to it ;■ and the parties are legally conusant of it at the time. The contract, in such case, is not impaired by the law, for the law is part of the -contract.”
The same doctrine is held in Blanchard v. Russell,
In Van Raugh v. Van Rrsdaln,
In all these cases; considerable importance seems to be attached to the circumstance, that one, or both of the parties, were inhabitants of the state or country where the contract was made. But, with great deference, it does appear to me, that all these cases stand upon a principle entirely independent of that circumstance. It is that of the lex loci contractus : that the law of the place where the contract is made, must govern the construction of the contract; and that, whether the parties to the contract are inhabitants of that place or not. The rule, I apprehend, is not founded upon the allegiance due from citizens or subjects to their respective governments, but upon the presumption of law.
The rule, therefore, upon this subject, is, that the law of' the place where the contract is made, is to control it, unless it appear, upon the face of the contract, that it was to be performed at some other place, or was made with reference to the laws of some other place: and the reason of the rule is, not-the allegiance due from the contracting parties to the government, where the contract is made, or is to be executed, but the supposed reference which every contract has to the laws of the state or country where it is made, or is to be executed, whether the parties are citizens oí that state or country, oy not.
The bond, in this case, therefore, 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 law of this.
The plaintiff having failed to aver or shew what the law of Massachusetts is, we are to presume it to be the same with our own. The case of Thompson v. Ketcham, is precisely analagous, upon this point, to the case under consideration.
The defendant, therefore, upon every ground, is entitled to judgment upon the demurrer.
Judgment for the defendant.
4 wheat'. 122>299 •
9 Joh)U Re2‘325-
17 John. Rep. 108.
19 John. Rep. 153.
16 John. Rep. 233.
ass.
1 East,'6.
3 Caines,
] j^enzs’ Tit. 3,page26. Bmoryv^Grenaugh, 3 Dali,
lack, Rep. 258.
™.) IJnd^ju C. 2 Burr, #07/.
Smith v. Mead, 3 Con. Rep. N. S. 253, S. P. and vid. also, Woodbridge v. Wright et al. id. 523, and Medbury v. Hopkins, id. 472.