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from the owner and keeps it permanently, in order and that is that the people of this State nearly forty to deprive the owner of it, what is this act? Not years ago pronounced their fiat that our common malicious mischief, because the property is not in- law should be codified. Men may quibble about jured; certainly not a mere trespass, because it has this, but they cannot blink the fact. If the Constithe elements of malicious wrong doing. Is such a tution means any thing it means that the people wrong-doer to escape because he can say: 'I did declared that they will have written laws — we do not take the property lucri causa'? Yet on the not say, the Field code necessarily and uncondi. doctrine against which I am contending, such a tionally, or any code immediately, but some code wrong-doer would escape altogether. He would be within a reasonable time; and inasmuch as the guilty of no malicious mischief, and if not guilty of Field code has been before the public for nineteen larceny, would be only a trespasser; a conclusion years, and is the work of the duly constituted comwhich seems to me plainly incorrect."
mission, and has been the subject of study, criti
cism, and amendments all these years, and has CODIFICATION.
never been successfully impugned, and has been
thoroughly tested and approved in California, we A
WEEK ago last Tuesday there was a hearing believe that it is a legislative duty to adopt it to go upon the Civil Code before thé judiciary believe this is a constitutional duty.
into effect at some future day to be specified. We committees of the two houses of our Legislature, at which Messrs. Field, Swayne, Milburn and Arnoux
But if it were not, we believe that public policy were heard in favor of, and Mr. Hale against the demands general codification. We do not propose Code. Last Tuesday the committees sat again, and to go over this familiar ground in detail, but we heard Judge Spencer of New York city in favor of would lay emphasis on one or two arguments that the Code, presenting a memorial asking its adoption
are not so familiar. Written laws are preferable to signed by Messrs. Beach, Pierpont, Dillon, Fithian, unwritten laws, first, because they are of superior Sullivan, Dyett and Leslie W. Russell, and Messrs. authority. No lawyer questions the authority of a Carter, Van Cott, Hornblower and Adams in statute in court. The only way we can get rid of it opposition, and Mr. Frankenheimer in reply. The is by legislative repeal or modification. No matter time granted by the committee was so short that no by how small a majority it was passed. But every one else could be heard in reply to the objectors, decision, especially every decision pronounced by a the laboring oar among whom was taken by Mr. divided court — and it is perfectly astonishing how Carter, who reiterated some of his pamphlet, the many there are, and how many pronounced by a magna charta of the opposition. Inasmuch as this bare majority of judges — the early volumes of our is the most important measure that can possibly be Court of Appeals' Reports are stuffed with such – presented for legislative consideration it would can always be assailed in court by a lawyer with seem that another hearing might reasonably be
some prospect of success, or at all events furnishes accorded. Five hours is hardly enough for this
a ground of advice to his client to take his chances purpose.
of reversing the uneasily settled doctrine. Besides, We are aware that we do not speak as one having conflicting statutes are very rare; conflicting decisauthority on this subject but only as one of the ions can be found on any topic in every volume in scribes, and yet we may reasonably urge our dis- any year and frequently in the same court. Second, interestedness, as one no longer in the practice of as we have intimated above, legislative enactment the law; our experience as one who while not young is much more difficult to procure than judicial enough to be totally uninstructed or very rash, is distinguishing, doubting, denying and final overyet not old enough to be timid of change and averse ruling. To the public and professional mind, then, to studying new laws; and our studiousness as one written laws have the superior sanction, and they obliged to read all decisions in the English lan- are settled on a much more stable basis than judiguage and to report many of them; and consequently cial legislation. presumably cognizant of the contradictions, uncer- Now who are the contesting parties? On the one tainties, changes and hardships of the common law, hand five millions of laymen, on the other five the latest definition of which is that of the eminent thousand lawyers. Five millions of people on the jurist, Mr. Pollock, “chaos tempered by Fisher's one hand, demanding a statute-book which they Digest.” Our position on this topic is that of a can read for themselves, on the other hand, five witness, not of an advocate; we speak by force of a thousand lawyers - one-half of the entire number subpæna, not of a retainer. We have spoken of our – denying the privilege because it may hurt their disinterestedness; we must retract that; we are not interests or give them inconvenience. Is anybody disinterested; we have a strong pecuniary interest | but lawyers opposing codification? Not a soul, even in keeping the law as it is, because we thrive by in the newspapers, for if you will scratch an editor editing and reporting judicial decisions, and the opposed to codification, you will find a lawyer, just more there are and the more contradictory and as Napoleon said, if you scratch a Russian you will changing, the more we thrive.
find a Tartar. Every man who writes to a newsBut we recognize one fact which our Legislatures, paper on this subject signs himself “ Lex." or we should rather say, our governors, have ignored, Now we can see some things a great deal more
clearly than we could when we were at the bar. of the most eminent judges of this State and one And one of these things is that the empire of the legal of the best judicial writers of this country, in his profession is passing away from them, and passing opinion recently expressed to us, that it is “marvel away just in proportion to the increase of their ous for comprehensiveness and precision,” and the number. Sixty-five thousand lawyers now have not testimonials, not only from lawyers but from busihalf the influence that a third of that number had ness men, which Mr. Field has produced, bear witforty years ago. Our places in halls of legislation ness to its simplicity and probable usefulness. have been taken by farmers, merchants, manufac- Talking as a lawyer to other lawyers, accustomed turers, bankers, editors. The people have grown to give and take blows, we have not been and we distrustful of us. Why? Because we are less honest do not propose to be mealy-mouthed about this mator learned than formerly? No, but because the ter.
It is not our office to lecture the Legislature idea prevails that we are opposed to legal reform. on their duty. We simply desire to record our conThe people have not forgotten the long and factious viction, as a student and observer, that if the legal opposition of lawyers and judges to the code of profession, in the Legislature or out, continue to 1848. Look at the two last constitutional conven- stand in the way of the expressed determination of tions. In the convention of 1846, there was a the people to have written laws and cheaper and majority of lawyers, legal reform was proposed, and speedier justice, the people will say, and justly, that Constitution was adopted. In the convention of “the lawyer must go.” Laws are not made for the 1868 there was a majority of lawyers, we believe, pleasure or convenience of lawyers, but for the prono legal reforms, or none of great moment were pro- tection of the people, and the people who have posed, and their work was rejected, all but the part borne with these obstinate lawyers for nineteen looking to legal reform. Now it will be a sorry day years will soon assert their rights in a way that for our profession if this idea gets firmly rooted, that cannot be ignored or trifled with. The people are as a profession we are averse to simplifying the laws long-suffering but not utterly supine. They will on and cheapening justice. The people are determined occasion assert themselves, as it does not require a on these two things, and they will have them in very long memory of public events in this State to spite of five thousand old, respectable, rich and in- recall. Depend upon it, brethren and legislators, fluential lawyers, holding up their hands in alarm they are not going to allow their rights and their at the prospect of having their occupation made commands to be barred by the statute of limitations. easier and possibly less lucrative.
It has been said to us by legislators that their lawyer-constituents are opposed to codification. We say to them, what about your other constitu
T the legislative hearing upon the Civil AT
Code, Mr. Frankenheimer, of New York, ents — much more numerous and influential ? What pointed out the practical utility of this Code in have they said to you in the Constitution ? Other settling disputed questions, in substance as follows: legislators have said to us that it is a great re- “Section 109 of the Civil Code provides that sponsibility to "change the laws." We say to neither husband nor wife, as such is answerable for them, we are not proposing to change the laws, but the acts of the other. The law as to the liability only to find out and fix them so they cannot be ar- of the husband for the independent tort of the bitrarily and capriciously changed by a power not wife is now unsettled in this State. Judges Sedgentrusted with the duty of making laws. But if it wick and Van Brunt, at Special Term in New York, were otherwise, wili 'they “take the responsibility” have held that the husband is still liable; but Judge of disobeying the plainly expressed will of the sov
Rumsey, in Fitzgerald v. Quause, 62 How. Pr. 331, ereign people ?
held the contrary. But Messrs. Carter, and Dwight, and Van Cott
“Sections 1910, 1972 and 1973 of the Civil Code and Hornblower, and a few others, emissaries of settle the much-disputed question whether the mere the New York City Bar Association — all honorable sharing in the profits of a business constitutes one men, but just here short-sighted, prejudiced, and a partner. They provide that no one is liable as a not disinterested — have pointed out a few faults partner unless he is a partner by express contract, in the proposed code. Well, it is a good thing to or has permitted himself to be represented as a have the law in one volume so the citizen can find it and partner. Since Leggett v. Hyde, 58 N. Y. 272, has find fault with it. That is the way to set laws right. been distinguished in Richardson v. Hughitt, 76 id. But any body of written law, whether in reports or 55, and in Curry v. Fowler, 87 id. 33, the law of this statutes, is susceptible of criticism. Even Mr.
State on this subject is still unsettled. Carter could not frame a code that his friend, Pro- “Sections 2459 and 2466 of the Code provide fessor Dwight, could not pick all to pieces, and the that a surety is discharged by the creditor's delay learned Professor could not frame one that the great to pursue the principal debtor, only when he has reexpounder of "how not to do it” could not demol- quested the creditor to take proceedings, and then ish to his own satisfaction and that of the New only to the extent to which he is prejudiced by the York City Bar Association in short order. We delay. The Code so provided in 1865. But the have studied this code for several years, disinterest- question has been mooted in the Court of Appeals edly and not as a partisan, and we agree with one in 82 N. Y. 121, id. 486, 84 id. 222, and 90 id.
326, with the result of confirming the doctrines laid vent law of New York was executed nearly two weeks down by the Code in 1865.
before the enactment of such insolvent law. The case “Sections 627 and 1069 of the Code provide that afforded a striking illustration of the wisdom of that
rule which obtains in the construction of judicial degrants and contracts made by a municipal corpora- cisions, namely, that the language of the courts, no tion are to be interpreted in favor of such corpora- matter how general and comprehensive it may be, tion. Upon the argument in the Court of Appeals should always be read in the light of the facts of the of the case of Langdon v. The Mayor, 93 N. Y. 129,
case, and be construed solely with reference to them; the appellant's counsel felt obliged to cover thirteen
for in the case of Ogden v. Saunders, 12 Wheat. 213, a
majority of the court were of the opinion that a State pages of printed points in support of the rule so
insolvent law was not unconstitutional as to a constated in the Code.
tract executed subsequently to its enactment, provided “These are all elementary principles, and are of the contract was made in that State. Justices Joho. daily recurring importance. In these cases, and in son, Washington, Thompson and Trimble, all wrote very numerous other cases of which time does not
able and exhaustive opinions in favor of the constitupermit the enumeration, the Civil Code would have tionality of such a law with reference to subsequent
contracts, in which they maintained their position saved litigation and spared the labors of courts and with great power of reasoning and fortified it by the of counsel.”
citation of numerous authorities. Chief Justice Marshall adhered to the view he originally expressed in
Sturges v. Crowningshield, and Justices Story and DISCHARGE UNDER STATE INSOLVENT LAW.
Duvall concurred with him.
This case however cannot be considered as baving IE absence of any National Bankrupt Law at the definitely settled the question, as Mr. Justice John
present time renders a discussion and examina- son finally concurred with the minority in affirming tion of the effect of a discharge under a State insolvent the judgment, but upon a ground entirely different law not only interesting but also of great practical im- from that on which the minority were in favor of af. portauce. No one question has been involved in firming. He assigned as a reason for his concurrence greater obscurity, and this has been caused by the in the affirmance of the judgment, the fact that the conflicting dicta emanating from the Supreme Bench of creditor was a citizen of Louisiana and never within the National judiciary. The conflicting dicta can in the the jurisdiction of the State of New York, under main be attributed to a want of agreement among the whose iusolvent laws the debtor claimed his discharge: members of that court upon the grounds on which the and that therefore the creditor was not bound by the validity of a discharge has been determined under the insolvent proceedings or the decree based thereon. It various phases in which it has been presented. In de- has sometimes been thought that the statement of ciding a question which arises under such widely differ- Chief Judge Marshall in Boyle v. Zacharie, 6 Pet. ent circumstances as the validity of a State insolvent 348, before the argument of that case, and that discharge, the courts must have some recognized of Judge Story at the threshold of his opinion in that principles by which all may be guided to prevent that case, see page 642, have forever set at rest this question most deplorable of all evils in the law, conflicting de- whether a State insolvent law impairs the obligation cisions and consequent uncertainty as to the correct of contracts entered into within that State, and bedoctrine. Herein lies all the difficulty. The object of tween citizens thereof subsequently to the adoptiou of this article is to review the authorities; educe out of such insolvent law. But it is not clear from either of the chaos some degree of order; state what rules ap- these statements whether the minority, on the general pear to be established by the decisions; and what rules question of the constitutionality of a State insolvent ought to obtain in these cases as to which law yet re. law, concurred in the whole of the second opinion maius unsettled.
written by Judge Johnson, including that portion of it In Sturges v. Crowningshield, 4 Wheat. 122, the court in which he states that an insolvent law does not imdecides that the power conferred on Congress by the pair the obligation of a subsequent contract; or Coustitution to establish uniform laws on the subject merely in the reasoning and conclusion of that opinion of bankruptcy throughout the United States was not to the effect that the discharge was inoperative as to essentially exclusive in its nature; and that there the Louisiana creditor for the reason that he was never being nothing exclusive in the terms of the grant, and within the jurisdiction of the court which grauted the no probibition on the State against the exercise of the discharge. The statement of Chief Justice Marshall, power to establish insolvent laws which should be would seem to warrant the first view, see page 348; operative within their respective limits, the several wbile that of Judge Story appears to neutralize the States had full autbority to establish such insolvent broad statement of the chief justice, see page 642. He laws; and that the State legislation would be uucon- seems to limit the concurrence in Judge Johnson's stitutional only when there might be in force a general second opinion of those who were in the minority on law of Congress on the subject conflicting with such the general question, to that part of the opinion on State legislation. Ch. J. Marshall, in that case held which Judge Johnson bases his concurrence with the however that the insolvent law of New York under minority in affirming the judgment. It cannot be which a valid discharge was claimed was unconstitu- that Chief Justice Marshall and Judge Story intended tional, on the ground that it impaired the obligation of a to assert that they and Judge Duvall concurred with contract, because it attempted to discharge a debtor Judge Johnson in his opinion that a State insolvent from all liability on his debt, and thus practically de- law does not impair the obligation of a subsequent colstroy it. The opinion of the chief justice in this case is tract, seeing that the chief justice in his opinion in sufficiently comprehensive in its language to cover not that very case in which Judge Story bad concurred, only cases of contracts entered into prior, but also cases had expressly declared it to be his opinion that such of contracts made subsequently to the enactment of a insolvent laws impaired the obligation of all contracts, State insolvent law. But the opinion so far as it as- both prior and subsequent. In that opinion he asserts sumes to dispose of the constitutionality of insolvent in limine that the only difference between the case at laws in force at the time of the execution of a contract, bar, Ogden v. Saunders, and the case of Sturges v. was a mere obiter, as the contract on which the liability Crowningshield, is the fact that in the latter the law was claimed to have been extinguished by the insol- acted on a contract which was made before its passage,
and in the case at bar on a contract which was entered tained by the three most eminent expounders of the into after the enactment of the statute. He states that Constitution since the days of Hamilton, the soundthe reasoning in Sturges v. Crowningshield, might have ness of their position seems to be unassailable. Should conducted the court farther, and that with that the United States Supreme Court ultimately adopt reasoning he had never had occasion to be dissatisfied. the opinion of the majority of the court in Ogden v. He then proceeded to maintain the position that such Saunders, it will be because that case has been generà law impairs the obligation of all contracts existing ally regarded by the bar and judiciary of the whole and subsequeut with a chain of reasoning extending country as having finally established the constitutionthrough more than 25 pages, and finally reaches the ality of a State insolvent law as to future contracts. conclusion that the law existing at the time of the It is certainly indefensible on principle. execution of a contract does not enter into and form an Another erroneous doctrine seems to be sanctioned integral part thereof; and that therefore it is no an- by necessary implication by many of the cases. It is swer to the position that an insolvent law impairs the expressed in this language: “A discharge cannot be obligation of a contract, that such law was in force at pleaded in bar of an action brought by a citizen of anthe time the contract was made. Can it be possible other State in the courts of the United States or of that Chief Justice Marshall and Judge Story intended any other State than that where the discharge was to assert that they and Judge Duvall had abandoned a obtained.” Suydam v. Broadnax, 14 Pet. 75; Baldposition, fortified with so much learning aud force of win v. Hale, 1 Wall. 232; Ogden v. Saunders, 12 Wheat. reasoning, wbich it was utterly unnecessary that they 213. Now two erroneous principles are impliedly asshould abandon in order to concur with Judge Johnson serted in this statement. First, that though the court in affirming the judgment? Every presumption is acquired jurisdiction of the person of the non-resident against such an intention, and the nature of Judge creditor by his voluntary appearance and submission Jobnson's opinion seems to be conclusive against any to the jurisdiction of the court, the debtor cannot such intention, and to bar all further argument, the plead his discharge in the courts of any other State or wbole trend of that opinion is to support this proposi- of the United States. Second, that even though the tion which he states at the very outset. “The ques- court failed to acquire jurisdiction of the person of the tion pow to be considered is whether a discharge of a creditor, the debtor can always plead in bar the disdebtor under a State jusolvent law would be valid charge in the courts of the State where granted. We against a creditor or citizen of another State, who has desire to assail both of these propositions on never voluntarily subjected himself to the State laws grounds. First, they are founded in a total misappreotherwise than by tbe origin of the contract.” No hension of the nature of the question. Second, they other question is discussed in this opinion; and at the are not supported by the cases in which the language close he states the following as the conclusion to which above quoted is used. It being conceded to be the law bis reasoning has led him: “I therefore consider the that a State insolvent law does not impair the obligadischarge under a State law, as incompetent to dis- tion of a contract made in the State in which the law charge a debt due a citizen of another State; and it is enacted and subsequently to the passage of that law, follows that the plea of a discharge here set up is in- the question presented for the determination of the sufficient to bar the rights of the plaintiff.” At the court in the case of such a contract claimed to be close of his opinion he states that the propositions which barred by such a discharge, where the discharge is he has endeavored to maintain are three. Of these, regular and otherwise valid, is purely and simply a one is that the obligation of a contract is not impaired question of jurisdiction. Did the court granting the by an insolvent law in existence at the time the con- discharge obtain jurisdiction of the person of the tract is executed. But he did not essay to maintain that creditor ? The decree which distinguishes the liaproposition in his second opinion in which Chief Jus-bility of the debtor on the contract in effect, takes tice Marshall and Judge Story stated they had con- from the creditor and pays to the debtor the amount curred. He had already disposed of that question in of the debt. Jurisdiction of the person is therefore the first opinion from which they had expressly dis- necessary to the validity of such a decree unless the sented. And therefore when they asserted in Boyle v. proceedings are in rem. But should they be conceded Zacharie that they had in Ogden v. Saunders concur- to be in their nature proceedings in rem, the case red in the second opinion delivered by Judge Johnson, would not be altered. That the existence and seizure they clearly did not intend to state that they con- of the res within the territorial limits of the State in curred in a proposition of law discussed in another whose courts the proceedings in rem are instituted is opinion, from which they had expressly dissented; essential to jurisdiction of the res, so as to conclude bot merely that they concurred with Judge Johuson the owner as to that particular res, is so well settled in the proposition maintained by him in his second that the citation of authorities to sustain this princiopinion, to-wit, that the insolvent law, irrespective of ple would be supererogatory. That in the case of a the question whether it was passed before or after the mere debt, the debt is not within the limits of the execution of the contract, could have no effect upon State in which the debtor resides in case the creditor the citizens of another State over whom the court lives elsewhere is equally well established. A debt granting the discharge had no jurisdiction.
follows tbe situs of the creditor. Story on the ConAs the question involves the construction of the flict of Laws, SS 362 and 369. If then, when the insolNational Constitution, and as the only case in which vent proceedings are instituted, the creditor is a resia majority of the United States Supreme Court ex- dent of another State, and does not voluntarily subpressed themselves in favor of the constitutionality of ject himself to the jurisdiction of the court in which a State insolvent law as to subsequent contracts was the proceedings are pending, and if there is no res decided, not only upon another ground, but also in within the State over which the court can acquire diametric opposition to the decision to which that jurisdiction by seizure, on what principle can it be view would have led, it cannot be said that the ques. maintained that the discharge is operative to extintion has been definitely settled so as to preclude all 'guish the debt of such creditor even in the very court argument. The able and convincing argument of Mr. by which the discharge was granted? There is no Webster for the defendant in error, and the exhaus- jurisdictiou either of the person or of the res, and the tive and unanswerable reasoning by which Chief Jus- decree is therefore a mere nullity. To declare such a tice Marshall supported his views, would seem to be decree of any binding force under such circumstances decisive of the question on principle. But when in would be subversive of the fundamental principle on addition it is considered that these views were main- which rests the superstructure of all free governments: “No man shall be deprived of life, liberty or Hawley v. Hunt, 27 Iowa, 307; Pratt v. Chase, 44 N. Y. property without due process of law.” It would be 597 ; Von Glahn v. Varrenne, 1 Dill. 519. highway robbery under the forms and sanction of the In Hawley v. Hunt, the court say at page 307: "The law. And yet we find this very doctrine promul. settled doctrine now is that a debt attends the persou gated by the Supreme Court of that State which was of the creditor, no matter in what State the debt first to resist the encroachments of tyranny. Scribner originated or is made payable; that a creditor cannot v. Fisher, 2 Gray, 43; Bingham v. Henderson, 1 Cush. be compelled by a State, of which he is a non-citizen 430; Converse v. Bradley, id. 434, note; Stoddard v. or resident, to become a party to insolvent proceedings Harrington, 150 Mass. 87. The first of these cases held therein; that such proceedings are judicial in their valid a discharge under an insolvent law of a State in nature, so that jurisdiction over the person of the which a contract was to be performed, although the creditor is essential; that notice is requisite to juriscreditor was not a citizen thereof at the time either of diction in such cases, and can no more be given in inthe execution of the contract or of the inception of the solvent proceedings than in personal actions where the insolvency proceedings or at any time whatever. This party to be notified resides out of the State; and most absurd and unjust doctrine was afterward over- hence a discharge under a State insolvent law will not ruled by the United States Supreme Court in Baldwin and cannot discharge a debt due to a citizen of another v. Hale, 1 Wall. 232, and this case has since been fol- State, unless the latter appears and voluntarily sublowed in Massachusetts, the Supreme Court having in mits to the jurisdiction of the court by becoming a the case of Kelley v. Drury, 9 Allen, 27, overruled its party to the proceeding or claiming a dividend thereformer decision in Scribner V. Fisher. The other uuder." Massachusetts cases above cited hold that the discharge The law is stated in almost the same language is valid where the creditor was at the time of the exe- in Von Glahn v. Varrenne, 1 Dill. 519. cution of the contract a citizen of the State, although In Bedell v. Scruton, 54 Vt. 494, the court sums up at the time of the commencement of the insolvency the question in these words: “It must now be settled proceedings he was a citizen of another State. The beyond question that a discbarge granted by a State case of Stoddard v. Harrington was decided after the court of insolvency is no bar to the claim of a nonUnited States Supreme Court had overruled Scribner resident creditor, who does not take part in the inv. Fisher in Baldwin v. Hale. And the principle upon solvency proceedings or submit himself in any way to which that court in the case last cited based its de- the jurisdiction of the insolvency tribunal; uor is the cision renders the other decisions of the Massachusetts rule affected by the place where the contract is made Supreme Court just as unsound and illogical as the or to be performed, or the forum in which it is sought decision in Scribner v. Fisher. The United States to be enforced. The debt attends the person of the Supreme Court based its judgment on the principle creditor, and unless he is within the jurisdiction of the that the court granting the discharge had never ac- court no discharge granted by it can affect his rights. quired jurisdiction of the creditor. The reasoning is It is a question of citizenship and State courts, and expressed in these words: “Regarded merely in the State laws are powerless to affect the rights of nonlight of principle, therefore, the rule is one which resident creditors by any jurisdiction they may have could hardly be defended, as it is quite evident that or exercise over the person of the debtor, or by any the courts of one State would have no power to require proceedings in rem affecting the debt itself." With a the citizens of other States to become parties to any single exception this statement embodies a correct such proceedings." The fact existing in these Massa- and comprehensive exposition of the principles by chusetts cases, that the creditor at the time of making which the question of the validity of a discharge is to the contract was a citizen of the State where the dis- / be determined in all cases. The court spoke inaccu. charge was granted, is a matter of not the slightest im- rately when it said the question was one of “citizenportance in the determination of the question. While ship." An alien will be bound by the discharge if he it distinguishes them from the case of Baldwin v. Hale, be a resident of the State at the time of the inception the distinction is without any difference in principle. of the proceedings. Von Glahn v. Varrenne, 1 Dill. The question is one of jurisdiction and is to be settled 515. It is simply a question of residence at that time. by the residence of the creditor at the time of the We find the following rules substantially established, institution of the insolvency proceedings. Whether at although they are not authoritatively settled : the time of the execution of the contract he was a First, that since the adoption of the Federal Concitizen of the State in which the discharge was granted stitution a State has power to pass a bankrupt or inis therefore immaterial to the inquiry. The language solvent law provided it does not impair the obligation of the court in Gilman v. Lockwood, 4 Wall. 409, states of a contract, and provided there be no act of Congress the true principle and in effect overruled these Massa- | in force establishing a uniform system conflicting with chusetts cases. "Insolvent laws of one State cannot dig. the State law. Sturges v. Crowningshield, 4 Wheat. charge the contracts of citizens of other States, because 122. such laws have no extra-territorial operation, and con- Second, that a State insolvent law is unconstitusequently the tribunal sitting under them, unless in tional as to existing debts. Sturges v. Crowningcases where a citizen of such other State voluntarily shield, 4 Wheat. ; Farmer's Bank v. Smith, 6 id. 131 ; becomes a party to the proceedigs, has no jurisdiction McMillan v. McNeil, 4 id. 209. of the case."
Third, a State insolvent law which discharges The same reasoning demonstrates the unsoundness merely the person of the debtor and does not extinof the other principle which is impliedly asserted by guish the debt, is not unconstitutional as impairing the language above quoted from Suydam v. Broadnax, the obligation of a contract, whether existing or subseand the other cases, to-wit, that although there is no quent. Sturges v. Crowningshield, 4 Wheat. 122-200; jurisdiction, the invalidity of the discharge may not Mason v. Haile, 12 id. 370; Beers v. Haighton, 9 Pet. be set up by the creditor in the courts of the State in 329; Adams v. Storey, 1 Paine, 79. which the discharge was granted. The converse is the Fourth, where the law discharges not only the pertrue rule, and it has been so expressly held in the New son of the debtor, but all liability on the contract, it is York Court of Appeals, Donnelly v. Corbett, 7 N. Y. not unconstitutional so far as respects debts contracted 500; Soule v. Chase, 39 id. 342.
between citizens of that State subsequently to the The true doctrine in all such cases is stated in the enactment of the law. Ogden v. Saunders, 12 Wheat. following decisions: Bedell v. Scruton, 54 Vt. 494; 213.