Woodworth, J.
The defendant’s plea does not state enough to give the Judge jurisdiction. The act requires application tu be made in the county, of which the person applying is an inhabitant. The plea alleges, that the defendant, at Rensselaerville, in the county of Albany, was an insolvent debtor, within the meaning of the act. There is no averment that he was an inhabitant. The rule is, that *319the defendant must show, affirmatively, that the officer had jurisdiction. -The want of a proper averment cannot be supplied by the discharge itself. The presumption, that the Judge did his duty, and required those things to be done which were necessary, does notarise until after jurisdiction is sufficiently alleged. (1 John. 91. 7 John. 75. 20 John. 210.) This objection, however, would probably be removed, if the defendant is allowed to amend. The facts stated in the replication show, that the contract, on which the judgments were rendered, was made prior to the passing of the act under which the defendant was discharged. It cannot be successfully contended, that the plaintiff is estopped from proving the origin of his demand, because it is reduced to a judgment. The doctrine of merger is unconnected with the question. In the matter of Wendell, (19 John. 153) judgment was rendered against the insolvent, in 1816, on a note given in 1812. The discharge was in 1817. In this case, the simple contract was merged ; yet the Court do not consider the judgment as fixing the time when the cause of action accrued, so as to give effect to the discharge, but that the contract was made when the note was given. It was, then, competent for the plaintiff to show that the original demand was prior to the passing of the act. The replication, setting out these facts, is not a departure from the cause of action in the declaration, but matter which main-íains and fortifies it. (1 Chitt. 618, 621.)
It is objected, however, that there is a departure, because the judgment declared on is alleged to have been rendered for the non-performance of promises and undertakings ; that the judgment, set out in the replication, will not support an action of assumpsit, and, consequently, cannot be the ground of the judgment on which the .defendant is prosecuted. In Hitchcock v. Fitch & Aiken, (1 Caines, 461) this Court held, that a judgment, rendered in the Supreme Court of Vermont, was to be considered in the light of a foreign judgment; and was only, prima facie, evidence of the demand. In Andrews v. Montgomery, (19 John. 162) it was held, that assumpsit would not lie on a judgment obtained in a sister state. This last case was governed by that of Mills v. Duryee, (7 Cranch, *320481) in which an exposition was given of the constitutional Provision respecting the publick acts, records, and -judicial proceedings, of the several states. Previous to the case of Andrews v. Montgomery, it is believed, that the profession, in declaring on judgments of other states, treated them as foreign judgments, on which assumpsit would lie, notwithstanding the decision in 7 Crunch, which does not appear to have been drawn in question or acted upon here, until the case of Andrews v. Montgomery. This may serve to explain why assumpsit was brought on the first judgment. The defendant might have defended himself on that ground ; but his misapprehension of the law* as to the effect of a judgment in another state, cannot, by any rule with which I am acquainted, prevent the plaintiff from alleging, that, in fact, the judgment here was founded on the judgment of another state. The inquiry is not whethec the judgment in Massachusetts will support assumpsit, but whether the plaintiff prosecuted and recovered on it here, in that form of action. That he did, I think, is admitted by the demurrer. The notes on which the first judgment was obtained, were prior to the insolvent act of April 12,1813; and, consequently, a discharge, under that act, does not discharge the debt in question, the act being so far unconstitutional and void, as impairing the obligation of contracts. (Mather & Strong v. Bush, 15 John. 233. Rosevelt v. Cebra, 17 John. 108. 4 Wheat. 122.) The plaintiff is entitled to judgment.
Sutherland, J.
The principal qüestion which arises in the case, is, whether the plaintiff is at liberty to trace back the judgment upon which the suit is immediately brought, through the judgment obtained in Massachusetts, to the original notes, or contracts, upon which that judgment was founded; or, in other words, whether those notes are, for the purposes of the present question, the contracts upon which this suit is brought. If they are, then, having been made before the passage of the act under which the defendant was discharged, Jiis discharge will not affect the plaintiff’s right of action, even if the notes had been made and were payable in this state. But they were made and were payable in an-*321.Oilier state, which would take them out of the operation of the discharge, though they had been made after the passing of the act. The original undertaking of the defendant was, undoubtedly, so merged in the judgment, that no suit could he maintained upon it. But I see no objection, in principle, to permitting an inquiry into the time of making the agreement, or contract, upon which the first judgment was founded, for the purpose of taking the case out of the operation of the defendant’s discharge.
It is the settled law of this land, that a discharge, under our insolvent act, operates upon all contracts made betwfeen citizens of this state, subsequent to the passing of the act. The discharge is, in such a case, held not to violate the obligation of contracts; because, being made after the law, the parties arc presumed to have had reference to the law, and, impliedly, to have made it a part of the contract. Now a judgment is, in no sense, a contract or agreement between the parties. It is only evidence of a pre-existing duty, obligation, or Agreement; and the reason upon which the validity of a discharge is sustained, can have no application to a debt arising upon a judgment obtained subsequent to the passing of the act, when the agreement, which was the foundation of the judgment, was made anterior to the act. But, it may be asked, where are we to stop in this inquiry into the foundation of the judgment ? Are we tó go back into the original consideration of the first Contract, however remote it may be, and notwithstanding it may have been followed by a subsequent agreement between the parties ? I answer, no. We are to go no farther back, than until we come to a contract, or agreement, between the parties. At this point, then, the inquiry arises, was the insolvent law then in force ? If so, in legal contemplation, it was a part of the contract, and a discharge under it may operate upon the contract, without impairing its obligation.
There is no force in the objection, that the replication is a departure from the declaration. It sets up no new cause of action, inconsistent with that originally stated. On the contrary, the new matter is merely explanatory of the declara*322lion, and tending to fortify and support it. But, if ttie repijcaj;ion werebad, still the plaintiff Would be entitled to judgment; for the defendant’s plea is clearly so, in as much as it dotes not aver that he was an inhabitant of the county of Albany, at the time of applying for his discharge. This was necessary to give the Judge jurisdiction, and is indispensably necessary to be stated. (Service v. Heermance, 1 John. Rep. 91. Frary v. Dakin, 7 John. Rep. 75. Roosevelt v. Kellogg, 20 John. Rep. 208.)
Savage, Ch. J. boncurred.
Judgment for the plaintiff.
IWMHaM¿W—I