Norton v. Cook

Bissell, J. Two questions are raised upon this writ of error. 1. Is the law of the state of New-Yorh, under which the plaintiff in error obtained the discharge set forth, unconstitutional and void, as between these parties ? And if so, 2. Has the defendant in error done any act, which precludes him from insisting upon the unconstitutionalily of tlu-law ? 1. Is the law unconstitutional as between these parties? It would be hardly decorous, and it is surely unnecessary, to enter upon a critical analysis of the various decisions, which have taken place upon this important, and exceedingly litigated question. It is sufficient to observe, that in the cases of Sturges v. Crowningshield, and Mc Millan v. Mc Neill, the supreme court of the United States asserted the broad principle, that an act of a state legislature, which discharges a debtor, upon his surrendering his property, for the benefit.of his creditors, from all his debts previously contracted, is a law impairing the obligation of contracts, within the meaning of the constitution of the United States, and is, therefore, void. This principle was fully recognized, by this Court, in the cases of Smith v. Mead, 3 Conn. Rep. 253. Hammett & al. v. Anderson & al. 3 Conn. Rep. 304. and Medbury v. Hopkins, 3 Conn. Rep. 472. We still think, that the principle involved in these decisions is entirely sustained, by a sound construction of the constitution ; and we would not depart from it, but through deference to that distinguished tribunal, to whose decisions we feel oound to submit, as to those of the court of dernier resort, upon all questions arising under the laws and constitution of the United States. In the case of Ogden v. Saunders, and in the cases argued in connection with that, a certificate of discharge, under such an act of a state legislature, as has been above referred to. was [327] held to be a good defence to an action brought for the recovery ° , of a debt, where such debt was contracted in, and citizens of, the state, under whose law the certificate was obtained. The same doctriné was, in the spirit of comity, established* by this Court, in the case of Hempstead v. Reed, 6 Conn. Rep. 480. We are now required to go one step further, and to pronounce a certificate of discharge effectual, not only as between citizens of that state, under whose laws it was obtained, but as against a citizen of another state. We do not think, that any decision requires us to go this length ; and not only so, but that to hold this discharge to be valid, as between these parties, would be directly to overrule the decision in Ogden v. Saunders. In that case, it was decided, that a certificate of discharge, obtained under the laws of the state of New-York, of which state the defendant was a citizen, was not valid against the plaintiff, who was a citizen of Kentucky. It has, indeed, been insisted on, in the argument, that this was not the point in judgment, in that case ; and the distinction now urged, was not recognized, by the majority of the court, who made that decision. If the information contained in the note of the reporter be correct, this point was not only decided, but was the point, upon which that decision turned. It having been decided (in those cases argued in connection with Ogden v. Saunders,) that a certificate of discharge was valid, as between citizens of the state under whose laws the discharge was obtained ; that case was again argued, upon the point now under consideration; and by a majority of the court, the discharge was holden to be ineffectual. It is true, that Judge Johnson alone, rested his opinion, and concurred in the decision, on the ground, that the creditor was a citizen of Kentucky, and had not submitted to the laws of the state of New-York, by instituting his suit before her tribunals; while Ch. J. Marshall and Judges Duvall and Story were in favour of adhering to the doctrine laid down in Slurges v. Crowning-shield and Me Millan v. Me Neill; and placed the decision on the principles there established. But we are to look at the result: and we certainly do not feel at liberty to decide in direct opposition to a decision of the [328] supreme court, in a precisely parallel case, either upon the ¿■round that there was not an entire harmony of views among the members of the court, by whom the decision was made, or upon the ground, that we cannot concur with a single judge of that court, as to the mode of obtaining that result. A certificate of discharge, in a case precisely like the present, has been pronounced, by the supreme court of the United Slates, to be utterly void and of none effect. And however disposed we might be to indulge in speculations upon the reasonings, on which the decision rests, still we acknowledge its binding force, and yield to it. Much stress has been laid, in the argument, upon the fact, that the note in question, was made and executed in the state of New- York ; and upon this further averment, contained in the plea, that the note was there to he paid. In regard to this averment, it may be remarked, that the contract, as set forth in the plaintiff’s declaration, is admitted, by the plea in bar. Upon looking, therefore, through the whole record, we perceive, that there was no express stipula - tion, as to the place where the note was to be paid. It merely contained a general promise of payment. And the averment in question, is the mere assertion of the legal inference, derivable from the fact, that the note was made and executed in the state of New-York. Does this fact, then, give validity to the certificate of discharge, here pleaded, as against a citizen of another state 1 The case of Ogden v. Saunders, so often referred to, furnishes a decisive answer to this question. There, the bill of exchange, on which the defendant was sought to be subjected, was accepted in the state of New- York; of which state, the defendant then was a citizen. It is unnecessary to pursue the argument farther. The law of the state of New-York, under which the plaintiff in error obtained his discharge, is unconstitutional and void, as between these parties. 2. Has the defendant in error done any act, which precludes him from insisting, that the law is thus unconstitutional? It is averred in the plea, that he was cited to appear, and did appear, by attorney, before the judge, and was fully heard on the debtor’s petition, then pending. [329] And it is contended, that by this act, he has waived his extraterritorial immunity, and submitted himself to the laws of state.of New-York. The case of Clay v. Smith, 3 Pet. U. S. Rep. 411. has been trongly relied upon, as sustaining this position. In that case-, the only point decided was, that the defendant having obtained his certificate of discharge under a state law, and the plaintiff' having come in and received his dividend, under the law, was no longer at liberty to question its constitutionality. The report of this case is very brief; and the grounds upon which the decision proceeded, are not very clearly stated. It is very manifest, that this case is not like the present in point of fact: and I think there is a clear distinction between them in point of principle. There, the plaintiff* might be considered as acquiescing in the validity of the discharge, by coming in voluntarily, and accepting a dividend under it. But here, no such inference can be drawn. The clear inference from the averments in the plea, is, that the plaintiff appeared to oppose the petition: and it would be difficult to conceive upon what principle he can be considered as acquiescing in the constitutionality of a law, when for aught that is shown, the very object of his appearing was, to make it appear that the law’ was unconstitutional. I do not think this case is governed by that of Clay v. Smith; and independently of that decision, I entertain no doubts on this question. The judgment of the superior court must be affirmed. The other Judges were of the same opinion. Judgment affirmed.