Whittemore v. Adams, 2 Cow. 626

Whittemore v. Adams

2 Cow. 626 | N.Y. Sup. Ct. | 1824

Curia.

The defendant relies upon an insolvent discharge granted pursuant to an act of the Congress of the United States, for the relief of insolvent debtors within the district of Columbia. (6 U- S. L. old ed. 294.)' The 10th section of that act declares its effect. If a debtor is arrested for any debt contracted before the dischargi, the Court issuing th,c *632process, or a Judge, are to release him on common bail This discharge is founded on a cessio bonorum, but all the subsequent acquisitions of the debtor remain liable to execution.

Giving to this discharge all the effect which can possibly be claimed under the act. of Congress, it does not operate upon the contract, but merely upon the mode of enforcing it. It is a personal discharge of the defendant—nothing more; and must, from its ve^y nature, be confined in operation, to the district of Columbia. The lex loci contractus does not apply. (Peck v. Hozier & Mulock, 14 John. 346.) Imprisonment is a part of the remedy, not of the contract. (Sturges v. Crowninshield, 4 Wheat. Rep. 200, 201.) It is obligatory on the Courts in the district of Columbia, as to bail, and the manner of proceeding upon execution. The defendant cannot be imprisoned there; but it does not fol- • low that he is exempt from imprisonment in this state.

A further effect is contended for, upon the principle that the contract being made in the district of Columbia, during the existence of the law, was entered into in reference to it; and that the statute, therefore, is incorporated with, and becomes a part of the contract. This is true, so far as the nature, validity and construction of the contract is concerned ; but it bas no application to the forms of judical proceeding. (Pearson v. Dwight, 2 Mass. Rep. 84. Dixon’s Ex’rs. v. Ramsay’s Ex’rs. 3 Cranch, 319.) The same principle has been repeatedly acted upon by this Court, in relation to the statute of limitations of adjoining states, (Nash v. Tupper, 1 Caines’ Rep. 102,) even where the contract. arose, and both parties resided there. (Reygles v. Keeles, 3 John. Rep. 263.) And a long and unbroken series of decisions has denied any effect to these personal discharges, beyond the boundaries of the state where they are granted, (James v. Allen, 1 Dall. 188; Smith v. Spinola, 2 John. Rep. 198; White v. Canfield, 7 John. Rep. 117; Sicard v. Whale, 11 John. Rep. 194,) upon the principle, that the statutes under which they are granted are inapplicable, as a part of the lex loci contractus ; but constitute a part of the lex fori merely, (Peck v. Hozier & Mulock, 14 John. 346.

*633The case principally relied on by the defendant’s counsel, is Hicks v. Brown, (12 John. 142.) That case gave effect to a New Orleans discharge, which extended both to the person and contract of the debtor, and the principle of that case was again recognized by this Court, in Sherrill v. Hopkins, (1 Cowen’s Rep. 103.) Both cases are plainly distinguishable in this particular, from the present. They go beyond imprisonment, the mere remedy, to the contract itself.

This distinction is founded not only upon authority, but upon the plainest principles of propriety and convenience; and it was well observed at the bar, that a contrary rule would confound the laws of the different states, making those of one state govern in another. Suppose a law of Columbia declaring that execution should not go till a given time after judgment; that the defendant should be imprisoned for a limited time ; that he should be supported by the creditor during his imprisonment, or enjoy jail liberties to a given extent; might not these modifications of the remedy be extended to New York, with the same propriety as any more material change ? Where are we to stop ? On the other hand, suppose a foreign law declaring imprisonment perpetual until the debt is paid, or inflicting other severe punishment for insolvency, are our own laws to enforce these various alterations in the remedy, as a part of the lex loci contractus ?

Nor is this discharge operative within that clause of the constitution which declares, that full faith, credit and effect shall be given to it as a judicial proceeding of another state. (Con. U. S. art. 4, s. 1. 2 U. S. Laws, new ed. 102.) ‘I his is undoubtedly true, when considered in reference to pleadings and evidence. (Mills v. Durye, 7 Cranch, 481. Hampton v. M’Connel, 3 Wheat. Rep. 234.) But it is not and cannot be so in its greatest extent. The cases decide that the judicial record of one state shall hot lose any thing in verity, by being carried into another; that it shall be tried by itself on a plea of nul tiel record. But to give the same unlimited effect to a foreign judgment, as to one of our own, would be, as remarked at the bar, to make a judgment, in one state, bind lands in another. The argument, as derived from the constitution, is very fully and ably considered by *634Shipper), J. in James v. Allen, (1 Dall. 188.) Millar v. Hall, (id. 229,) does not contradict the doctrine of the former case» The discharge drawn in question, by the latter, probably extended to the contract; for, though decided subsequent to James v. Allen, which was referred to in argument, it does not profess to question that case.

The judgment must be for the plaintiff, non obstante veredicto.

Rule : That the motion of the defendant be denied, with costs; and that judgment be rendered for the plaintiff, gen erally, notwithstanding the verdict of the jury.