#### John Tappan *versus*Moses Poor and Another.

Trie principle of comity is never held to apply, when the law of another state, insisted on in defence, is injurious to the rights of the citizens of the state where the action is brought

The declaration was in *assumpsit,*and contained three counts. The first charged the defendants, merchants of *Baltimore,*in the state of *Maryland,*as acceptors of a bill of exchange for 2250 dollars, drawn on them by the plaintiff, a merchant of *Boston.*The second was on another bill for 2119 dollars 19 cents, drawn and accepted as the first. Both bills were alleged to be drawn on the 10th of July, 1816, and accepted on the same day. The third count was for 5000 dollars, had and received by the defendants for the use of the plaintiffs. The action was commenced on the 21st of December, 1816.

The defendants, besides the general issue, which is joined, plead, in discharge of their persons, estate, and effects, save and except any property, if any there be, acquired or to be acquired by them, after the 1st day of March, 1817, by gift or descent, or, in their own right respectively, by bequest, devise, or in any course of distribution, *actio non;*— because, for more than two years before the day last mentioned, they have been, and still are, inhabitants of the state of *Maryland,*residing in *Baltimore.*The plea then recites the contents of sundry laws of said state for the relief of insolvent debtors; by which it is provided that, on the application of any person, having resided in the state two years, to the County Court, offering to deliver up to the use of his creditors, respectively, all his property, (necessary wearing apparel and bedding excepted,) and accompanying such application with a schedule of his property, and a list of his creditors, and certain proceedings had thereon, * amongst which is the execution and acknowledgment of a deed to a trustee, appointed by the court, conveying to him all his property, real, personal, and mixed, and all debts, rights, and claims, — it should be lawful for the said court to discharge such person from all debts, covenants, contracts, promises, &c., due *375from him in his individual capacity, as well as in copartnership, at the time of his application; provided that any property which he should acquire thereafter, “ by gift, descent, or, in his own right, by bequest, devise, or in any course of distribution, should be liable to the payment of said debts.” The plea then sets forth an application by the defendants to the *Baltimore*County Court, on the said 1st day of March, 1817, for the benefit of the said laws, certain proceedings had thereon, and a judgment of the said court, that they should be discharged from all debts, &c., due or contracted before the said day, with the exception above mentioned as to property afterwards acquired by them ; and the plea concludes with an averment, that the causes of action mentioned in the plaintiffs declaration, if any, accrued, and the promises therein mentioned were made, if at all, before the said 1st day of March, 1817, within the state of Maryland, and were, by the terms thereof, to be performed within that state, and not in this commonwealth or elsewhere. This plea begins and ends with praying judgment, if the plaintiff ought to have and maintain his action, to recover against the persons of the defendants, or against any of their estate or effects; save and except such as may come to them after the said 1st day of March, 1817, by devise, descent, or in course of distribution, &c. (a)

The plaintiff replies *precludi non*from having execution against the persons, estates, and effects, of the defendants, averring that, on the 21st of December, 1816, and ever since, the said *Moses Poor,*and *Charlotte,*his wife, were and still are seised in fee, in right of said *Charlotte,*of two certain messuages, and land, in *Boston,*describing them, which came to them by the devise of one *Mary White,*and * that they had issue, to whom the right of the same would descend in the event of the said *Charlotte’s*decease; and that he, the plaintiff, on the said 21st of December, 1816, caused the same to be attached on the original writ in this action, to satisfy the judgment which he may obtain therein, which attachment is still in force; and that, by one of the laws referred to in the plea of the defendants, it is provided that no person should have any benefit of said act, who should not, within one month from the appointment of a trustee, execute a deed for all his estate; and that the said *Moses*did not, within the month, &c., by any deed duly executed and recorded, in the manner directed by the laws of this commonwealth, convey the said messuages, &c., to the trustee, &c.

*376To this replication the defendants demur generally, and the demurrer is joined by the plaintiff.

There is also a third plea in bar, like that aforecited, with the additional averment that, since the said 1st of March, 1817, the defendants have not, nor has either of them, acquired any property by gift or descent, or in his own right by bequest, devise, or in any course of distribution, &c.; and it begins and ends, in the common form of a plea in bar, by praying judgment of the action generally.

To this last plea the plaintiff demurs, and shows, for cause, that it begins and concludes in bar of the said action, but the matters therein pleaded and set forth are not in bar of the action, but only in discharge of the persons and effects of the defendants, save only any effects acquired or to be acquired by them by gift, &c.

The defendants join the demurrer.

*Gallison*for the plaintiff.

*Shaw*for the defendants.

(a)

**3 *Har.*& *Johns.*61.

Parker, C. J.

By the laws of Maryland, recited in the defendants’ pleas in bar, it is made a condition of the discharge of an insolvent debtor, under those laws, that he should by deed convey all his property and effects to the trustee, to the use of his creditors. The replication to the † second plea avers that the defendant *Poor*was seised of two estates in *Boston,*in right of his wife, which he had not conveyed to the trustee; and this is admitted by the demurrer.† The legal conclusion is, that he has not complied with the .terms of the laws of which he claims the benefit; so that his discharge is no bar to the action.

The estate of which *Poor*was seised, in right of his wife, was certainly property to be surrendered by him, within the meaning of those laws. If it was not, then it remained his property to be taken by any of his creditors living here; for they certainly would not be bound by a law of *Maryland*which should permit a debtor to keep any of his property, and yet be discharged from his debts.

The third plea is no bar to the action ; for the acts set out in it do not discharge the debt, but merely exempt the person and present estate from the effects of a judgment. And we do not think it necessary that the plaintiff should reply an acquisition of property in the manner prescribed in the acts, or that he should make such an averment in his declaration, to eniitle him to recover. For, admitting the full effect of the laws, the plaintiff would be entitled *377to judgment for his debt; and the exemption can only operate upon the execution.

But there is a general objection, which is conclusive against the defence set up in this case. These acts are no otherwise binding upon the citizens of this state, than on the principle of comity; which is never held to apply when the law insisted on, in defence, is injurious to the rights of the citizens of the state where the action is brought. It appears that the plaintiff, a citizen of this commonwealth, had, under its laws, acquired a lien upon the estate of his debtor in *Boston,*before the proceedings were instituted undei these insolvent laws. We ought not, by giving validity to the defence set up, to deprive him of that lien. * And indeed we lay it down as a principle, to be applied in all cases, where the debtor of a citizen of this state shall attempt to discharge himself from an action under the insolvent laws of another state, that, where the suit shall have been commenced here before application is made for the benefit of such laws, a plea of discharge under them cannot avail. When the laws of this commonwealth have been resorted to for the enforcement of a debt, it is not admissible that the debtor should commence proceedings in another state to avoid the process here, and bring a discharge, obtained without the consent of his creditor, to stop the course of justice.

The principle assumed by us, in this case, is similar to that which was recognized by Lord *Mansfield*and the Court of King’s Bench, in the case of *Be Chevalier*vs. *Lynch, Assignee of Dormer, Doug.*170. There the assignee brought his action to recover a debt due from *Lynch*to the bankrupt. A creditor of the bankrupt had attached the debt in the hands of *Lynch,*in the Island of *St. Christopher. Lynch*applied for a rule to show cause why the trial should not be put off, until he could get evidence from *St. Christo pher*that the debt was attached in his hands ; and after objection, the rule was made absolute—Lord *Mansfield*saying that if, after bankruptcy, and before payment to the assignees, money owing to the bankrupt out of *England*is attached, *bona fide,*by regular process, according to the laws of the place, the assignees, in such case, cannot recover the debt.

*Per Curiam.*

The replication to the second plea in bar is good ; and the third plea in bar is bad. *(a)*

†

 It seemed to be conceded in the argument, that the conveyance to the trustee was sufficiently comprehensive to include the estates in *Boston ;*but that the deed had no! been registered here, which was necessary to its operating on those estates.

(a)

*Braynard*vs. Marshall, 8 *Pick*. 97. — *Watson*vs. Bourne, 10 *Mass. Rep.*337 3d ed., and the cases cited in the note. — 2 *Kent's Comm.*393,2d ed.; and see *Phillips*vs. *Allen,*8 *B. & Cr.*477. — *Baker*vs. Wheaton, 5 *Mass. Rep.*509.— *Hall & Al.*vs. Williams, 6 Pick. 232.— *Clay*vs. Smith, 3 Peters, *S. C. R.*411. — *Story's Comm, on the Const. U. S.*A., book 3, c. 34, § 13, 84. The ground on which the case in the text is to be sustained is, that a state insolvent law does not apply to contracts made within the state, between a citizen of that state and a citizen of another state. Thi* *378is much more plain and intelligible than the reasons assigned by the Court, some of which, to say the least, are questionable. The ground on which the case of *Le Chev alter*vs. *Lynch*was decided, seems not to have been clearly understood. It was this, that, where a debtor had paid money under a due process of local law, he shall not be compelled to pay it over again; and therefore, though the creditor attaching the effects abroad was liable to the assignees of the bankrupt, yet the garnishee, of whom the debt had been recovered, was not compellable to pay it over again. — *Eden on Bank*ruptcy, 346. — 1 *Deac.*401, 742.