Matter of Bonnaffé. the latter speaks the unmistakable language of bankruptcy, total inability to pay one's debts. This author says: "All the debts contracted by the debtor before his failure, are completely extinguished and replaced by the new engagement, which the majority of the creditors have settled upon or determined by the concordat. The failed person is legally liberated from that portion of his debts which have been remitted to him, to that extent that his subsequently acquired property cannot be taken for payment of them: nevertheless, in the court of conscience he remains a debtor, so long as he has not paid his creditors in full." (Saint Nixent, Traité des Faillites et Banqueroutes, tom, 3, p. 222, Paris, 1843.) It is to be particularly noticed that, according to this author, the existing debts are only extinguished and replaced by the new engagements of the concordat; this must mean the new engagements of the concordat in reference to those debts. We see, on examining this concordat, that it contains no engagement whatever in reference to these debts, and that no portion of them has been released by the creditors. The debtor therefore has not been legally discharged from any portion of his debts, nor have any new engagements been entered into, in reference to these debts or any part of them. Judging from the terms of the concordat, the debtors stand precisely, in reference to them, as if no such instrument had been formed; and I am unable to see, that they have obtained any discharge of their debts or any portion of them, or that their creditors have released or agreed to release them from such debts or any part thereof. In law, and in the court of conscience, they still remain liable for the whole amount of such debts, as the same existed at the time of their suspension, with the exception of such part as has been paid. Such certainly is the condition of the debts due to persons here, who only are parties to the attachment proceedings; and such, I think, is the condition of the French creditors, parties to the concordat. The appellant's counsel relied with some confidence upon the Case of Quelin v. Moisson. (1 Knapp's Privy Council Cases, 265.) There Quelin had been adjudged a bankrupt by the Matter of Bonnaffé. Tribunal of Commerce, and obtained a protection from arrest. He was afterwards prosecuted as for a fraudulent bankruptcy, and was condemned as such. The note, on which the action was brought, was proven by the holder under the bankruptcy, and afterwards indorsed to Moisson, who sued Quelin, the maker. He pleaded his bankruptcy in France in bar to the action. The plea was overruled in the court in Jersey, and, on appeal to the Privy Council, two questions were directed to be submitted to two French advocates. First. Whether a person whose property has passed to syndics under the law de la faillité, could afterwards be sued by any creditor who had proved his debts before the syndics. The second question is not important to the point now under consideration. The French advocates answered to the first question, that the bankrupt could not be sued even by a creditor who had not proved his debts before the syndics, and a fortiori could not be sued by one who had. And thereupon the Privy Council reversed the judgment. It will be seen that that case differs from the present in this that there the bankrupt was divested of his estate, and it passed into the hands of the syndics, and it also differs in the important fact that in that case no concordat was formed or entered into between the debtor and his creditors. It may well be, where the proceedings is wholly adverse to the debtor, and his estate is taken from him, and administered upon by the agents of the law for the benefit of all his creditors, that the latter should be held bound to look to that fund only for the satisfaction of their debts. That is not the present case. Here the debtor and creditors have mutually surrendered the rights and advantages secured to each by the law, and substituted therefor an agree ment. The rights of the parties are therefore to be determined by its terms and stipulations, and we have seen, by our examination of them, that no portion of the debts due by the failed debtors have been released, and no agreement made to release them. It is not perceived that the decision of the Privy Council in Quelin v. Moisson, establishes any rule in conflict with the views expressed in this opinion. Matter of Bonnaffé. The analogy, therefore, which is sought to be established between these proceedings and those under the English bankrupt act, entirely fails. Under the latter the certificate operates as a discharge of any debt, claim or demand which might have been proven under the commission. The debt, by the proceedings, is discharged, wiped out, and the creditor has not, therefore, any debt or demand against the debtor to prove and establish before the trustees. It is true that he once had a debt, but by operation of law it has been discharged and extinguished, and it was upon this ground that this court held, that the creditors of Coates & Hillard, who were parties to the proceedings in bankruptcy in England, had ceased to be creditors, and could not therefore come in before the trustees here and participate in a dividend. The decision in Coates & Hillard has no application to the present case; and the proceedings in France, and the stipulations of the concordat, present no obstacles to the creditors who were parties thereto, or residing there, from proving their claims and participating in the dividends declared by the trustees in this State. All sums received by them on account of their respective debts or claims in France or elsewhere, are to be credited and allowed as so much received on account of dividends, so that all the creditors may share equally in the distribution of the non-resident debtor's estate. The order appealed from should be affirmed, with costs. COMSTOCK, Ch. J., and SELDEN, J., without expressing any opinion as to the operation of the concordat, in respect to the future accumulations of the debtor, concurred on the ground that such discharge as it effected, was granted in contemplation of all the insolvent's existing property being applied to the payment of his debts, and did not impair the right of any creditor to share in the proceeds of such property. DENIO and MASON, Js., also concurred; LOTT, JAMES and HOYT, Js., dissented. Order affirmed. The People v. Commissioners of Taxes and Assessments. 23 192 126 443 23 192 139 64 THE PEOPLE, ex rel. THE BANK OF THE COMMONWEALTH, v. Stock in the public debt of the United States, whether owned by indivi- Whether Congress, for the purpose of giving effect to its power to borrow money, and of aiding the public credit, may constitutionally enact that The cases of McCullough v. Maryland (4 Wheat., 116); Osborn v. United APPEAL from a judgment of the Supreme Court. That court, upon the application of the Bank of the Commonwealth, awarded a certiorari to the commissioners of assessments and taxes of the city and county of New York, for the purpose of reviewing their proceedings in assessing that corporation, in the year 1859. It appeared from the admissions in the return of the commissioners, that the Bank of the Commonwealth was a banking association organized under the general banking law, with a capital actually paid in of $750,000, out of which it had paid $188,834.84 for real estate consisting of its banking house, leaving $561,165.16, of which $103,000 was invested in the stock of the public debt of the United States, of the loan of 1858, which was actually owned by the corporation at the time the assessment was made. The bank claimed before the commissioners, that the stocks of the United States were exempt from taxation under the Federal Constitution; but that board held otherwise, and assessed the corporation for The People v. Commissioners of Taxes and Assessments. personal estate for the whole balance of capital after deducting the sum paid for real estate, and it was taxed thereon. The Supreme Court held that the stocks referred to were not exempt from taxation in this case, and affirmed the assessment: upon which the present appeal was brought by the Bank. Alexander W. Bradford, for the appellants. Greene C. Bronson, for the respondents. DENIO, J. This case has been argued upon the assumption that the funded debt of the United States in the form of stock, is, by the Constitution, absolutely exempt from taxation by the state governments. Hence, the position mainly argued by the counsel for the city of New York, was that the existing law for the assessment and taxation of corporations, of the class to which the appellant belongs, looks to the capital stock of the corporations paid in, or secured to be paid in, as the subject of taxation, irrespective of the manner in which it has been invested. Consistently with this position it is argued that it is not a circumstance of any importance, that a portion of the moneys contributed by the subscribers has been invested in property not in itself subject to taxation; that it is the same thing in effect as though so much money had been lost; and if such had been the case, it is further insisted that the corporation would, notwithstanding, be liable to taxation in the whole amount of capital originally paid in, or secured to be paid in, except such portion thereof as had been paid out for the purchase of real estate. If the provisions of the Revised Statutes respecting the taxation of moneyed corporations had remained unchanged, the argument would have had much weight; for the principle of taxation which these enactments established, was that the amount of the capital, with the exception before mentioned, was to be taken as the amount of the personal estate of the corporation for which it was to be taxed, whether it had been impaired by losses or increased by accumulated profits. (1 R. S., 414, §§ 1 to 6; Bank of Utica v. City of Utica, |