#### * John Watson *versus*Shearjashub Bourne.

A discharge of a citizen of *Rhode Island,*under the insolvent laws of that state, is not a bar to an action of debt brought in this state against such citizen, upon a judgment rendered in *Rhode Island,*the creditor being a citizen of this state.

To an action of debt brought upon a judgment rendered in the Court of Common Pleas for the county of *Kent,*in the state of *Rhode Island,*in favor of the plaintiff, against the defendant, the latter pleads, in bar, a discharge under the insolvent laws of that state. To which the plaintiff replies that, at the time of the accruing of the debt aforesaid, and at the time of the proceedings under the said insolvent laws, and of the rendition of the judgment on which this action is brought, and long before, he was, ever since *335has been, and still is, a citizen of this commonwealth, and has resided, and still resides, therein. To this replication the defendant demurs, and the plaintiff joins in demurrer.

*Sproat*and *May,*for the defendant,

argued that, although the plain tiff is acknowledged by the demurrer to be a citizen of *Massachusetts,*yet, having appealed to the court of the state of *Rhode Island,*and obtained a judgment therein, that judgment was now the only foundation of his demand, and that being annulled by competent authority, his remedy is wholly gone. He had appealed to the laws of *Rhode Island,*and by those laws his right has since been taken away. (1)

*Ellis,*for the plaintiff.

The plaintiff claims as a citizen of *Mas sachusetts.*As such, his demand is not annulled by any act of the state of *Rhode Island,*to which he has never assented. That the plaintiff claims under a judgment of *that*state, cannot vary his case. It amounts to no more than this, — that he has higher evidence of his claim. That judgment has never been satisfied, or annulled, unless the act of the *Rhode Island*Assembly has had this effect. But this is absurd; for it must have been in force, to entitle the plaintiff to claim under the commission.

The action stood continued *nisi*for advisement, and at the ensu ing March term in *Suffolk,*judgment was rendered for the plaintiff upon the demurrer.

(1)

*Baker*vs *Wheaton,*5 *Mass. Rep.*504.

* Sewall, J.

Upon these pleadings, terminating in an [ * 338 ] issue of law, the averments in the plaintiff’s replication are more immediately referred to the consideration of the Court. The plaintiff relies upon the circumstance of a citizenship and residence within this state, when his demand against the defendant first accrued as a debt, when a judgment was recovered upon it in the state of *Rhode Island,*and when the defendant was there discharged under the provisions of the statutes for the relief of insolvent debtors, as set forth in his plea in bar. The question to be determined is, then, whether the statutes pleaded by the defendant operate to bar the right, and as dissolving or releasing the contract; or as a bar only of alb legal remedies, when pursued within the state of *Rhode*Islasid.

The decision in the case of *Baker*vs. *Wheaton,*cited in the argument for the defendant, is placed altogether upon the ground that the contract originated between citizens of the state of *Rhode Island,*and that it remained due there, the creditor and debtor continuing members of that state until the latter obtained a legal discharge under the insolvent laws there in force. A subsequent assignment of the contract, to a citizen of this state, was not allowed to have *336the effect of reviving it against the debtor. We recognize as a principle settled by the decision, that before the assignment the contract was determined, or all legal remedies upon it had been taken away, by the *lex loci,*where both parties were subject to the provisions and effect of the statutes of insolvency. An assignment of the demand, although the evidence existed in the form of a negotiable note, discredited, however, and long due, passed nothing to the endorsee which he could enforce against the operation of statutes which, under these circumstances, had put an end to the contract itself, or to all remedies upon it, to be pursued under the title of the original creditor, holding the demand when the debtor was discharged, both being at the time citizens of the same state.

*The council for the defendant in the case at bar have contended, in the argument, that a judgment recovered in any state is to the same purpose local, whoever may be the creditor, whether a citizen or a stranger there, or whatever may have been the state of the contract in this respect before the judg ment recovered upon it; that this submission of his demand to the jurisdiction of the state subjected the creditor to the laws of tha jurisdiction, and that the implied contract arising upon a judgment as evidence of a debt, is to be construed according to the law of the place where the judgment was rendered.

On the other hand, upon the averments admitted by the demurrer, that the creditor, in the case at bar, has never been, by his. residence, a member of the state of *Rhode Island,*or subject to its laws, his counsel has contended against any subjection to them by his attempt there to enforce his demand against his debtor, then residing within that state. And we are of opinion that a contract, upon which a transitory action arises, is not rendered local by a judgment recov-r ered upon it. The direct means of carrying judgments into effect are necessarily local, from the reference which the execution, or a *scire facias*to have execution, has to the record of the judgment, to be thereby enforced according to the authority of the jurisdiction where the judgment was rendered. But as evidence of a debt, whether *prima- facie*or conclusive evidence, the implied promise arising upon a judgment seems to be no more local than any other contract is, whether express or implied. The demand sued by this plaintiff against the defendant in the state of *Rhode Island,*there passed in *rem judicaium;*but the judgment, until reversed or satisfied, is evidence of a contract between the same parties provable in another form, with the same effect. The judgment is adduced here, as evidence of a just demand, and to obtain a remedy to enforce it according to our laws; and the insolvent laws of *Rhode island,*or the protection under them enjoyed by the defendant in *337that state, are no answer in this state to an action upon this demand, * unless the debt, as well as the remedy [ * 340 J upon it, have been abolished and defeated.

The provisions of the insolvent laws, pleaded by the defendant, do not profess to give the defendant a discharge to that effect, under the circumstances of this case; that is, where the insolvent debtor was not in custody, and where the creditor has not availed himself of the assignment of the debtor’s effects, or has neglected to prove his demand before the commissioners.

There is, indeed, some obscurity on this subject in the provisions of the act of 1756, recited in the plea at bar. Insolvent debtors in custody are to be set at liberty by virtue of a written order to the sheriff; which is also to operate, to all intents and purposes, as a full and perfect acquittance, release, or discharge, made and executed by such creditor or creditors; that is, such as have become parties to the proceedings upon the application of the insolvent debtor ; as it must be understood according to the directions in the former part of the same section, and in the next preceding section of the statute. For it is subsequently provided, that if any creditor shall refuse to bring in and prove his demand, &c., in that case he shall not have any action or suit within the colony, and that act being pleaded, shall be sufficient to bar the same.

A more ample discharge by a local statute would not, however, have any different operation in this respect; for a discharge of that nature can only operate where the law is made by an authority common to the creditor and the debtor in all respects, where both are citizens and subjects.† In any case, it is a bar of all remedy, within the jurisdiction where the statute is in force; but the debt and duty remain, until discharged in another manner, and upon other considerations ; and in this view of the subject we see no difference that can be insisted on, between the original demand, which was the foundation of the judgment, and the judgment itself, *(a)*

*Replication adjudged good.*

*338ADDITIONAL NOTE.

[See *Smith*vs. Bennett, 17 *Wend.*479.

In Illinois, the discharge of an insolvent debtor, under the bankrupt law of a sister state, is no bar to an action. — *Mason*vs. Wash, 1 *Bre.*17.

A certificate, obtained under a state insolvent law, by which a party is exempted fiom arrest for all previous debts, is no bar to an action commenced by arrest in another state. — Boston, &c., vs. Wallack, 8 *Pick.*186.

The defendant, residing in *New*York, gave there a negotiable note to the agent of a corporation established in Massachusetts, for goods sold. The agent resided in *New*York, but the defendant knew that the corporation was the real party interested. He afterwards made an assignment, and obtained a certificate in the above form. Held, the corporation might legally commence a suit here by arresting him, and recover the same judgment and execution, as if no such certificate had been obtained. *—Ibid.*

Whether the defendant has any remedy for such arrest on mesne process, or exe cation — *Quccre. —Ibid.*

A, residing in *New York*with the purpose of becoming a citizen, as agent of the plaintiff, a citizen of *Massachusetts,*sold goods to the defendant, a citizen of *New York¡*took his negotiable note therefor, payable to A in three months, and immediately transferred it to the plaintiff. The defendant afterwards obtained a discharge in *New*York, as an insolvent. Held, the plaintiff might maintain an action on the note against the defendant. — *Braynard*vs. Marshall, 8 *Pick.*194.

A. discharge obtained in another state under a state insolvent law, upon a surrender of property, so far as it concerns a contract subsequent to the passage of the law, between citizens of that state, and to be performed within it, is constitutional, and a good defence against an action brought in *Massachusetts.*— *Betts*vs. Bagley, 12 *Pick.*572.

In giving effect to the local law of another state, by which a contract there made is discharged, the court will also give effect to a rule of evidence, accompanying and making part of such law, and providing for the mode of proving the discharge. Thus, if the discharge is there made conclusive evidence of the facts therein set forth, it will be so regarded in *Massachusetts.*— *Ibid.*

An insolvent discharge, obtained in *New*York, is no bar to a suit in a court of that state, on a contract made in another state subsequent to the passage of the insolvent act, between persons not citizens of *New York*at the time of the contract, though, before presentment of the petition for discharge, they became such.— *Witt*vs. Follett, *2 Wend.*457.

Such discharge, from all the party’s debts, is a defence to an action upon a contract made and to be executed in *New York;*though the creditor is a non-resident, and neither joined in the petition for discharge, nor accepted a dividend. — *Parkinson*vs. Scoville, 19 *Wend.*150.

If a judgment has been recovered before the discharge, the insolvent, having no opportunity to plead it, will be relieved on motion, and a perpetual stay of proceedings ordered. *—Ibid.*

In Connecticut, a certificate of discharge under the insolvent law *of New York*is no bar to an action in favor of a citizen of *Connecticut,*upon a contract made in *New York. —Norton*vs. Cook, 9 *Conn.*314.

So, although the creditor, with the debtor, appeared before the judge by whom the petition was tried, at a time appointed, and both parties were fully heard thereupon *—Ibid.*— F. H.]

†

 ADDITIONAL NOTE.

[8 Pick. 196, *Smith*vs. *Parsons.*— 1 *Ohio,*236.—F. H.]

(a)

*Bradford & Al.*vs. *Farrand,*13 *Mass. Rep.*18. — *Le Roy*vs. Crowningshield, 2 *Mass. Rep.*151. — *Van Reimsdick*vs. *Kane & Al.,*1 *Gal.*371. — *Smith*vs. *Buchanan,*1 *East,*6.— *Quin*vs. *Keefe, 2 H. Bl.*553. — *Beawes,*543.— *Cooke, B. L.*465.— *Watson*vs. *Renton, 2 Bell. Com. 693.—Lewis*vs. *Owen, 4 B. & H.*654.—And see farther, as to the effect of bankrupt or insolvent laws, *Blanchard*vs. *Russell,*13 *Mass. Rep.*1.— *Tappan*vs. *Poor Al.,*15 *Mass. Rep.*419. — *Sturges*vs. *Crowningshield,*4 Wheaton, 122. — *M'Mcllan*vs. *M’Neil,*4 *Wheat.*209.— *Ogden*vs. *Sanders,*12 *Wheat.*213. — *Hinckley*vs. *Morean,*3 *Mason,*88. — *Shieffelin*vs. *Wheaton,*1 *Gal.*442. — *Babcock*vs. *Weston,*1 *Gal.*168. — *Bank of Scotland*vs. *Cutkbert,*1 *Rose,*462.— *Odwin*vs. *Forbes, Buck,*57. — Ed.]