# Gorgerat v. McCarty

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GORGERAT et al. verʃus M‘CARTY.
O
Ingerʃol, in fupport of the rule, contended, that it was fettled by the decifions in Millar v. Hall (ant.229.) and Thompʃon vs. Young (ant. 294.) that a difcharge under the laws of one country, operated as fuch in every other; and he offered to prove by the teftimony of the Defendant himfelf, that three fourths in value (the depofition only ftating that the principal part) of the creditors had agreed to the compofition at L‘Orient ; obferving, that, if this would be fufficient to induce the Court to order an Exoneretur after judgment, it would alfo be fufficient to induce them to difcharge the Defendant in the prefent ftage of the caufe.
Du Ponceau, having read a pofitive affidavit of a fubfifting debt, oppofed the admiffion of the Defendant's teftimony. He faid, ​
1788.
that, even if M‘Carthy’s difcharge according to the lex loci could be actually proved, it would not operate againft the Plaintiff on a motion of this kind. The mutual fpirit of intercourfe among nations has, indeed, introduced a more liberal idea of the ceʃʃio bonorum; and, upon the trial of the caufe, fuch proof would probably be fatal to the Plaintiff's demand; but, whether he is difcharged, or not, is a matter of fact, to be decided by the verdict of a jury ; Salk. 100. and to deprive the Plaintiff of fpecial bail, at this time, would not only be an illegal anticpation of that decifion, but, in effect, a denial of juftice, as it appears that the Defendant is under an obligation to repair fhortly to France, and would probably never venture again within the jurifdiction of this Court.
He contended, however, that, even by his own fhewing, M‘Carty had not been difcharged in France ; and reprefented, that the proceedings in the Confular Court amounted to no more than an inchoate bankruptcy; for, the concurrence of three fourths in value of his creditors to the compofition alledged, and the homologation or confirmation thereof by the Parliament, being an indifpenfable requifite to his difcharge, ‘till that was eftablifhed, it could not avail the Defendant that he had made a furrender, or that the Plaintiff had proved his debt, any more than the furrender of a bankrupt here, or the proof of a debt under the commiffion, would be fufficient to preclude a creditor from his remedy at law, before a certificate was actually granted.
Nor is the Defendant's teftimony, he urged, competent to prove the fact, which, by the lex loci, operates as a difcharge ; it is matter to be fhewn by an exemplification of the foreign record ; when, perhaps, it may be tantamount to a bankrupt's certificate ; or, with ftricter analogy, it may be tantamount to a bankrupt's certificate ; or, with ftricter analogy, it may be compared to the cafe of a difcharge under the compofition law of England; and he cited a cafe which he faid was exactly in point from Salk. 99 pl. 7. where the Court, on a queftion of bail, would not allow the Defendant to fhew that he had obtained his difcharge under that act, and that the Plaintiff was bound, though a non fubfcriber, to the compofition.
Ingerʃol, in reply, faid, that he did not mean to contend, that the debt was difcharged; but only to fhew, by the teftimony of the Defendant, a collateral fact, which entitled his perfon to an exemption from arreft in the prefent cafe. He agreed that the proceeding amounted only to an inchoate bankruptcy under the infolvent laws of France; but, he infifted, that it would be cruel and unjuft to allow the Plaintiff all the advantage of his concurrence there, and likewife the benefit of fpecial bail in an action here. Although it may be true, therefore, that the Defendant had not yet received what would amount to a certificate, yet, as he has furrendered all his effects, muniments, and vouchers, to the proper officers, for the benefit, and with the knowledge and approbation of the Plaintiff, as well as his other creditors, the Court will not fuffer the oppreffion that is now attempted, but rather incline to hear the Defendant in favor of the rule; and, if it can be fhewn that three fourths in ​
1788. value of his creditors have agreed to his difcharge, the eftablifhed principles of law will protect him here from the moleftation of a refractory individual.
SHIPPEN,Preʃident.– There are certain rules adopted for the government of the Court in refpect to bail, which, as they are confonant to law and reafon, ought not to be wantonly violated. In cafes of neceffity, however, thefe rules admit of fome relaxation ; as where it is impracticable to obtain a pofitive affidavit of the debt, the Court, being fatisfied of its exiftence by collateral proofs, will order fpecial bail to be entered.
But the prefent queftion is not of that nature; for the matter alledged in fupport of the rule, goes immediately to the merits of the caufe, and cannot, with any propriety, be confidered as a fact merely collateral. It is, in effect, faying, that the Defendant has paid the Plaintiff's debt ; which furely cannot be tried on a mation of this kind ; not can it at any time be fubftantiated by the teftimony of the Defendant himfelf.
I think, indeed, that the liberality of our Courts, has already extended the benefits of a ceʃʃio bonorumin another country, as far as prudence will juftily. In the cafes of Millar v. Hall and Thompʃon v. Young, there had been a general furrender for the benefit of all the creditors; and judgments of diʃcharge ƒrom their reʃpective debts, were regularly pronounced and certified in favor of the Defendants by the Court of a fifter State. This diftinguifhes thefe cafes from the cafe of James et. al. v. Allen (ant. 188) where the Defenddant's perʃon only was diʃcharged, under the law of New-Jerʃey, clearly local in its terms and operation: And, in the cafe of Le Clercq v. Richette our opinion, in directing the Jury to find for the Defendant , was founded upon the evidence that the Plaintiff was a party to the proceedings in France, and that an actual difcharge had been obtained conformably to the laws of that kingdom.
From thefe decifions it may be collected, that the judgment of a foreign Court difcharging the debt would, for that purpofe, be recognize here; but it would be contrary to reafon, juftice, and law, to protect a man from arrefts, who had made his way to this country before he obtained his certificate, merely becaufe he had committed an act of bankruptcy and furrendered to the commiffioners in England. The objections are equally ftrong upon the prefent occafion ; for, it is clear, that the proceedings, which have hitherto taken place in the Confular Court of L‘Orient, are inchoate and inconclufive; and,, even if the Plaintiff had figned the letter of licence for three years, that, according to an exprefs authority in Barnes, would not be a fufficient caufe for refufing fpecial bail.
Upon the whole, the court are clearly of opinion, that the Defendant is not entitled to be releafed on common bail; and, therefore, direct.
The rule to be difcharged.