#### Giles W. Olden and Hart Olden, executors of Samuel Olden, dec., *against*Richard S. Hallet.

IN DEBT : ON DEMURRER &C.

Insolvent laws of *New-York,*discharging the debt, unconstitutional.

THIS action was commenced by attachment, against the property of the defendant, directed to the sheriff of *Somerset,*on which he seized a quantity of hides or unfinished leather, belonging to the defendant, in the hands of *Elisha Clark.*The defendant filed special bail.

The declaration has two counts.

1. On a bond in the penal sum of 1000 pounds, *New-**536*York*money, given by the defendant and one *Jeremiah ■Hallet,*dec., whom the plaintiff has survived, to *Samuel Olden,*dated the 1st of *May*1797, conditioned for 500 pounds, with lawful interest.

2. On a judgment obtained against the defendant on that bond, as survivor, at the suit of the plaintiffs, as executors of *Samuel Olden*in the Supreme Court of the state of *New- York,*in the term of *August*1804.

The defendant pleaded seven pleas.

To the first count.

1. The judgment obtained in the state of *New-York,*stated in the plaintiffs’ declaration; the plea concludes *with a verification.*

2. The same plea concluding to the record with a *prout patet per recordum,*&c.

To these two first pleas the plaintiffs demurred, and the defendant joined in demurrer.

To the second count.

3. *Nul tiel*record. The plaintiffs reply, that there is such a record, concluding to the record in the usual form.

*4. *Nil detinet,*issue tendered to the country and joined by the plaintiffs.

5. A statute of the state of *New York*called an insolvent law, and a discharge of all prior debts due from the defendant, made by the recorder of the city of *New York*on the 20th of *June*1807. This statute was passed on the 3rd of *April*1801, and authorises the recorder, on the petition of three-fourths in value of the creditors, and upon the debtor making an assignment of his estate and complying with the -other provisions of the act, to discharge any insolvent *debtor from his debts,*whether he w;as imprisoned or not, and bars all future actions for the recovery, &c. The plea avers that the defendant was an insolvent debtor within the act, and had been in custody, upon execution, for more than sixty days, and .that having compliéd with all the directions of the act and been duly discharged, he pleads the discharge *in bar of this action.*

*'*6. Same in substance as the last, but sets out the discharge at large.

*537To these two last pleas the plaintiffs demurred, and the defendant joined in demurrer.

7. That the plaintiffs sued out a *ca. sa.*uponthejudgment upon which the defendant was arrested and detained until the 20th of *June,*1807, when he was discharged under the insolvent law, &e.

To this plea the plaintiffs demurred, and the defendant joined in demurrer.

The cause was argued by *R. Stockton,*for the plaintiffs, and *Ewing,*for defendant.

Kirkpatrick C. J.

In this case there was a bond given in *New-Jersey ;*a judgment entered upon that bond in the Supreme Court of the state of *New York;*a *ca. sa.*sued out on that judgment; the defendant taken and imprisoned thereupon, and afterwards discharged under the act of the said state of *New York,*entitled “ An act for giving relief in cases of insolvency,” passed *April*3rd 1801.

After this discharge, there was an attachment taken out here, upon which the defendant appeared and gave special bail.

The declaration contains two counts, one upon the bond and another upon the judgment in *New York.*To the first of these *there are two pleas setting up the said judgment in *New York*as an extinguishment of the bond, the first concluding with a general verification, and the second with a verification *prout patet*by a copy of the record of that judgment authenticated according to the act of congress, &c. And to these two pleas there are genera] demurrers, and joinders in demurrer.

To the second count in the declaration there are five pleas. First. *Nul tiel*record. Secondly. *Non detinet.*Thirdly. A discharge under the act of the state of *New York.*Fourthly. The same, setting out the discharge particularly. And fifthly. The imprisonment of the defendant upon a *ca. sa.*on this judgment, and his discharge therefrom.

The counsel have not thought proper to go into an argument upon the pleas to the first count; but as the de*538murrers are general, they must be intended to be taken matter of substance and not to matter of form; for though the pleas should be thought to be informal, con-eluding with a general verification, and not with a *prout patei per recordum,*or in other similar respect, (which I by no means say is the case) yet such informality is- cured by the act respecting amendments and jeofails. I see no ground, therefore, upon which they can be taken, unless it be that the judgment in the state of *New York,*did not operate as an extinguishment of this bond debt, and that therefore the bond still remains in its full force, and may be made the foundation of an action here.

That the judgment operated as an extinguishment of the bond debt in the state of *New York,*cannot for a moment be doubted, *(a)***Can the party then by coming into this state again revive it and set it up ? Or will it be said that a judgment in the state of *New York,*is, as to us, a mere matter in *pais,*which, indeed may be the foundation of an assumpsit, or of debt, as upon a simple contract, the regularity, justice, and foundation of which may inquired of here, by a jury, as other matters of fact are inquired of; but that it cannot be pleaded or taken notice of *as a judgment,*or have the effects and operation *oía judgment?*If this be the ground upon which the demurrers are taken, and I can really see no other, I am inclined to think they are not good.

The clause of the constitution of the *United States,*on this subject, and the act of congress to carry that clause into effect, notwithstanding the very respectable opinions to the contrary, ^rendered in some of our neighbouring states, I think place such judgments upon a different footing from what are commonly called foreign judgments, and give them all the force and effect of judgments in every other state. (b) To say less of that clause and of the act consequent thereupon, would be to nullify *539them altogether. But as the counsel have not argued this question, so neither will I argue it, but rather content myself, for the present, with saying that I think these demurrers must be overruled.

The real defence in the cause, is the discharge under the above recited act of the state of *New York.*And the demurrers to the third, fourth, and fifth, pleas, pleaded to the second count in the declaration, bring up the validity of that discharge. And this again depends upon the constitutionality of the act itself.

It has heretofore been decided in this court, especially in the case of *Vannuxem*and *Clark*v. *Hazdhurst,*that by the constitution of the *United, States,*congress has the exclusive power of making laws upon the subject of bankruptcies ; and that all laws which discharge the debtor from his debts, without payment, are bankrupt laws, in the true meaning of that instrument, *(a)***This act of the state of *New York,*therefore, being a law which discharges the debtor from his debts, without payment, is a bankrupt law, and, as such, unconstitutional and void.

Again. It has been decided in this court, that a law discharging a debtor from his debts, without payment, if not a bankrupt law, is a law impairing the obligation of contracts; the power of making which, is, by the said constitution, expressly forbidden to the individual states. If it should be thought then, that this act of the state of *New York*is not a bankrupt law, it is a law impairing the obligation of contracts, and as such is unconstitutional and void.

I am of opinion, therefore, that the demurrers to the third, fourth, and fifth pleas, pleaded to the second count in the declaration, are wrell taken, and, therefore, that the said pleas be overruled.

(a)

*Prest vs. Vanarsdalen, 6 Hal. 194. Barnes vs. Gibbs, 2 Vr. 317. Cox vs. Marlatt, 7 Vr. 390.*

(b)

*Moulin vs. Insurance Co. 4 Zab. 222. Gulick vs. Loder, 1 Gr. 68. Douglass vs. Steward, Pen. *710. Lanning vs. Shute, post 778. Gavit vs. Snowhill, 2 Dutch. 76. Robert vs. Hodges, 1 C. E. Gr. 300.*See *Davis vs. Headley, 7 C. E. Gr. 116. Gilman vs. Lewis, 4 Zab. 246. Mackay ads. Gordon, 5 Vr. 286.*

(a)

*1 South. 192. Ballantine vs. Haight., 1 Har. 196. Conkling vs. Haight, 1 Har. 201.*

Rossell and Southard, Js.,

concurred in overruling the said pleas.