Herring v. Selding , 2 Aik. 12 ( 1826 )

Hutchinson, J.

after stating the case, delivered the following opinion of the Court.

The Court might content themselves, in this case, by only saying, that the special notice is totally defective, in not setting forth particularly the statute of New-York, under which it is said the discharge of Herring was procured. The original plaintiffs were entitled to as substantial information of the provisions of that statute, when it comes in the form of a notice, as when in the form of a special plea. The publick statutes of another state are treated here, as private statutes, as to the necessity of pleading the same; and, according to the cases cited, and a long and uniform practice, the statute allowing notice, only dispenses with the form, not the substance, of special pleadings. By the notice in the present case, the creditor can derive no knowledge of the provisions of the statute relied upon, unless by presuming that the proceedings set forth were conformable to the act; whereas, he was entitled to such exhibition as would enable him to judge whether to object to the prpceedings, as not warranted by the statute itself.

But the question the plaintiff in error wishes to try, and upon which the opinion of the Court will be concisely stated, is, whether such a statute as the proceedings named in the notice suppose, and a discharge regularly procured, under such statute, of the dates pointed but in the notice, form any bar to the action .brought upon the notes.

Decided cases, of too high authority to be resisted by this Court, have marked a plain path upon this question. Our decision in this case might be revised by a writ of error in the supreme court of the United States. Of course, the decision of that court, if in point, should be considered of paramount authority, and govern our decision.

The cases cited from the fourth of Wheaton, show fully the opinion of that Court, that a law of a state, making, provision that a debtor may be discharged from his contract without payment, impairs the obligation of such contract, and is unconstitutional and void. And in the case of McMillen vs. McNeil, on page 212, of the 4th of Wheaton, Chief Justice Marshal says, “that the circumstance of the state law, under which the debt was attempted to be discharged, having been passed before the debt was contracted, made no difference in the application of . the principle.”

In the 6th of Wheaton, 131, The Bank vs. Smith, the same chief justice said, that both parties living ip the same state whe.n the contract was made, and continuing lolive there till the suit was brought in its own courts, made-no difference.

Those decisions have been followed in this Court, in a case in all respects like the present, which should appear in the second volume of Chipman's Reports.^(a) There are two or three cases in the third volume of Connecticut Reports, that are full in point; and one of them, Hammett et al. vs. Anderson et al. 304th page, presents the present defence exactly, with this adtion, that the plaintiffs'were petitioning creditors to procure the discharge. The court decided, that even that made no difference; for they must have proceeded upon the presumption that the law was of binding force. They could not have intended to have their own debts barred, and those of other creditors not barred.

The case cited, from the 13th of Mass. Rep. page 1st, contains a laboured opinion which is in favour of the validity of such a discharge. But this decision, was several years before the case of Sturges vs. Crowningshield, a.nd must be considered as overruled by that case.

The case cited from the 16th of Johnson's Reports, admits the authority of the cases in the fourth of Wheaton, as applicable to contracts made before the insolvent law passed, but denies their force, with regard to contracts made in that state while the law existed. This would seem as if the statute must, or might, derive its force from the contract of the parties: whereas, if it has any force, it. must result from the power of the legislature to make such a law, and their having exercised that power. If they had no such power, then is their act void. If void, by reason of its impairing the obligation of contracts, it is void in its effect upon all such contracts as may be impaired by it, if it have its designed effect. If this statute has provided a way in which the citizens of the state of New-Yorlc can be discharged from the contracts by them made, while the statute exists, without payment of the same, it impairs the obligation of those contracts, and is, therefore, void.

Alvin Foote and Chs. Adams, for the plaintiff in error. J. C. Thompson and C. P. Van Ness, for the def’t in error.

The case of Post vs. Riley, 18th oí Johnson’s Reports, 54, was decided after the cases in the fourth of Wheaton, and fully admits their authority. But, had Riley pleaded properly, the court would have treated his discharge good, so far as to free his body from arrest, and no farther.

The Court consider, that the defence presented in the special notice cannot prevail. That there is no er- ' ror in the judgment of the county court, and that the same be affirmed, with costs.

Note.—Where a judgment of the county court is affirmed on error, execution does not issue from this court for the debt, except where the execution below has been superceded. The writ of error in this case not operating as a supercedeas, the Court directed execution to be issued for the costs of this writ of error only.

(a) Wm. Nelsons. RichM G. Imerson, decided in Orleans co. Sept T. 1824."