Van Raugh v. Van Arsdaln

| N.Y. Sup. Ct. | Aug 15, 1805

Lead Opinion

Kent, C. J.

This question arose in the case of George B. Ewert v. William Coulthard,^* which was decided inthi& -court, in January term, 1795, the plaintiff there, was a citi-aen of this state, and the debt was contracted here ; the defendant was a citizen of Pennsylvania, and pleaded a discharge under the insolvent act of that state, and the plea was overruled. Upon the authority of that decision, we are of opinion that the discharge stated m the case before us is no bar, and that the plaintiff is entitled to judgment. We give no opinion as to the operation of such a discharge, if the parties had been citizens of Pennsylvania, or if the debt had been contracted there, or if the plaintiff had given his assent to the proceedings under the insolvent law, or accepted any dividend of the defendant’s estate ; but, confining ourselves to the case before us, and to the antecedent decision, we declare only, that a discharge under the insolvent act of another state, will not take away the right of a citizen of this state to sue here upon a contract made here, and which is binding by our laws.

* At the time of the decision in Ewert v. Coulthard, the point had never received any direct determination in the English courts, although several cases look strongly towards it; but in Smith v. Buchanan, 1 East 6, the court of K. B. went the whole length of the present adjudication,

---

Concurrence Opinion

Livingston, J.

Supposing this question to be res inte-gra here, (which must also have been the understanding of the counsel of both parties) I had formed an opinion, and assigned my reasons at considerable length in favour of the defendant! having no doubt, after a very careful examination of the subject, that a cessio bonorum, under the laws of a state-where the debtor has his permanent domicile, ought to operate-as a discharge from his creditors in every pari of the world» To this opinion, which is the result of much reflection and research, I still 'adhere : but being recently informed, that a different decision has been made by this court in the case mentioned by the Chief Justice, I do not think myself at liberty to dissent from the judgment just rendered.