#### Lyman Betts *versus*Oliver Bagley.

There being no general bankrupt law of the United States in force, the law of a State providing for the discharge of an insolvent debtor, upon the surrender of his property, is a constitutional law, so far as it operates upon future contracts made within such State, by citizens thereof, and which contracts, by their terms, are to be performed within the limits of such State.

A discharge obtained under such operation of an insolvent law of another State, is a good defence to an action brought in this State upon a contract embraced in the discharge.

Where a judgment on a contract was obtained in this State, and afterwards the defendant obtained a discharge under such insolvent law, embracing the contract, it was determined in a suit here upon the judgment, that the Court would look behind the judgment to the original contract, and that the discharge was a bar to the action.

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 a part of the local law, and providing for the mode of proving the discharge.

Thus, in the case of such insolvent law, the discharge being, by the law of such other State, made conclusive evidence of the facts and proceedings therein contained, in the courts of such State, it must have the same effect in this State.

Under the insolvent law of New York, of April 12, 1813, the proper tribunal has jurisdiction of the person, when the party petitioning is an inhabitant of the county in which his application is made, and jurisdiction of the subject matter, when the proceedings are brought before such tribunal by a petition of the insolvent, in conjunction with persons *purporting*to be two thirds in amount, of the creditors residing in the United States.

Under that law, the facts, that the person granting the discharge held the office conferring authority to act in cases of insolvency within the county in which he acted, and that he had jurisdiction of the person and of the subject matter as above mentioned, being proved here by evidence aliunde, all other material facts necessary to give validity to the discharge, are proved by the discharge itself.

On the question, whether the magistrate who granted the discharge, had jurisdiction, the facts, that of several petitions presented to him signed by different creditors, one had been signed two or three years before the presentation of it, and was addressed to another magistrate but of like authority, at the time, ic cases of insolvency, were held to be immaterial.

This was an action of debt on a judgment recovered by *580the plaintiff against the defendant, in the Court of Common Pleas, held within this county, in October 1823.

The defendant pleads in bar, that an act of the legislature of New York was passed on April 12, 1813, entitled “ an act for giving relief in cases of insolvency,” containing certain provisions, (which are recited in the plea) ; that (pursuant to these provisions) at Hillsdale, in the county of Columbia, in the State of New York, on February 27, 1828, the defendant, having become insolvent, did, in conjunction with so many of his creditors &c., present a petition in due form of law, to be heard before John J. Miller, then and ever since the first judge of the Court of Common Pleas for the county of Columbia, praying that the insolvent’s estate might be assigned and the insolvent discharged, and proof was duly made to the judge, that the defendant was an insolvent of the county of Columbia ; that annexed to the petition, was the affidavit of each petitioning creditor, stating that the sum affixed to his name is justly due to him &c., and that he has not received any payment of his demand against the insolvent &c., or any gift &c. to induce him to become a petitioner, and specifying the nature of his demand, with the general ground of the indebtedness ; that all mortgages &c. held by any of the petitioning creditors, were duly relinquished &c. ; that the insolvent, at the time of presenting the petition, delivered to the judge a full, true and just account of all his creditors and their places of residence, so far as the same could be ascertained, and of the moneys owing to them &c., and likewise a full, true and just inventory of all the estate &c. of the insolvent, and of all the books, vouchers and securities relating to the same, and thereupon the judge administered to the insolvent an oath, that the account and inventory are just and true, and that the insolvent has not made over any part of his estate &c. to defraud any of his creditors, and that he has in no instance acknowledged a debt for a greater sum than he honestly owed, or with intent to aid his discharge ; that he caused to be published the notices required by the statute, to all his creditors, to appear before the judge on May 17, 1828, to show cause why an assignment should not be made for the benefit of all his creditors and he be discharged ; that on that day no suffi*581cient cause to the contrary appearing, the judge, being satisfied &c., did decree an assignment &c. ; that the insolvent made an assignment; that on the same day he produced a certificate thereof &c. ; and that thereupon the judge did &c., by writing &c. dated the same day, discharge the insolvent from all such debts as were due by him at the time of making the assignment. The defendant then sets out the discharge *verbatim;*in which the judge certifies, that on February 27, 1828, Oliver Bagley, of Hillsdale, in the county of Columbia, &c., appeared before him, John J. Miller, first judge &c., and delivered, according to the statute, a full, just and true account of all his creditors and the moneys owing to them respectively, and a full, just and true inventory of all his estate and of all books &c., and the petition of the insolvent, in conjunction with two thirds of his creditors in value ; and that proof having been made to the judge, that the insolvent was an inhabitant of the county, the judge thereupon administered to him the oath prescribed, and appointed the 17th of May ensuing, at the house &c., as the time and place when and where the creditors should be notified to show cause why an assignment should not be made and the insolvent be discharged, — at which time and place no sufficient cause was shown &c. ; and that the judge, being satisfied that the insolvent is justly and truly indebted to the subscribing petitioning creditors in the sums by them mentioned, and those sums amounting, in the aggregate, to two thirds of all the debts due by the insolvent to the creditors residing within the United States, and that the insolvent has conformed in all things to those matters required of him according to the true intent and meaning of the statute, thereupon directed an assignment to be made by him to Allen Jordan &c.; and that afterwards the insolvent, on the 17th of May, having produced a certificate &c. of the assignee that the insolvent had made such assignment, he, the judge, discharges the insolvent from all such debts as were due by him at the time of making the assignment. The defendant then further avers, that he and the plaintiff, at the time of the accruing of the original cause of action upon which the judgment set forth in the plaintiff’s declaration was founded, and from that time to the filing of the plea, were citizens, inhabit*582ants and residents of the State of New York, viz the defendant, of Hillsdale, in Columbia county, and the plaintiff, of the city of New York; that the original cause of action wholly accrued in the State of New York, and accrued since the passing of the statute by virtue of which the defendant has been discharged ; and that at the time of making application for the benefit of the statute, all the supposed causes of action or claims of the plaintiff, if any he has, existed and were then due and payable.

*Sept. 18th.*

The plaintiff, in his replication, denies that any act, entitled “ an act for giving relief in cases of insolvency,” was ever passed by the legislature of New York, containing the provisions set forth and being a law of that State, as alleged by the defendant; and he denies, severally, all the allegations in the plea; and he tenders an issue to the country, which is joined.

The cause was tried before *Wilde*J., and much evidence was introduced on each side. The defendant produced certain depositions and other evidence, independent of the discharge, to prove, that at the time of the accruing of the original cause of action upon which the judgment declared on was founded, and from that time to the filing of his plea, the parties were citizens, inhabitants and residents of the State ot New York; that the original cause of action accrued in tha State and subsequently to the passing of the statute of 1813 that John J. Miller was the first judge, &c.; that the defendant, at the time of presenting his petition, was an inhabitant ot the county of Columbia, and that his petition purported to be signed by at least two thirds of his creditors in amount, residing within the United States.

Under the direction of the judge presiding at the trial, the jury returned a verdict finding the several issues in favor of the defendant, subject to the opinion of the whole Court upon a report of the cause to be made by the judge.

Bushnell, of Hudson, (with whom were *Nash*and Bishop,) for the plaintiff,

contended, 1. That the proceedings in the State of New York, as proved by the defendant, were not in conformity to the statute in question ; and 2. That if the discharge pleaded was granted according to that statute, still it *583would not extinguish the judgment then existing, which had been recovered in Massachusetts.

The officer in New York, before whom proceedings of this nature are had, is an officer of special and limited jurisdiction, and must act strictly within the provisions of the statute. After a case is shown to have been within his jurisdiction, a presumption may be made in favor of his acts, but nothing can be presumed in favor of his jurisdiction. *Sollers*v. *Lawr*ence, Willes, 416 ; *Jones*v. *Reed,*1 Johns. Cas. 20 ; *Wise*v. *Withers,*3 Cranch, 331 ; *Adkins*v. *Brewer,*3 Cowen, 208 ; *Mills*v. *Martin,*19 Johns. R. 33, 34 ; 1 Wms’s Saund. 74 and note 1 ; *Frary*v. *Dakin,*7 Johns. R. 75, 80 ; *Service*v. *Heermance,*1 Johns. R. 92 ; *Morgan*v. *Dyer,*10 Johns. R. 163; *Roosevelt*v. *Kellogg,*20 Johns. R. 210 ; *Soper*v. *Soper,*5 Wendell, 112 ; *Dakin*v. *Hudson,*6 Cowen, 225 ; *Bowman*v. *Russ,*ibid. 236 ; *Powers*v. *The People,*4 Johns. R. 292 ; *Muzzy*v. *Whitney,*10 Johns. R. 229; *Wyman*v. *Mitchell,*1 Cowen, 318; *Wheeler*v. *Townsend,*3 Wendell, 247.

Every material fact in the plea is traversed, and must be proved by competent evidence ; and the question then arises, what is requisite to give the officer jurisdiction.

By recurrence to the statute it will appear, that the insolvent, with creditors residing in the United States who shall have debts" *bond fide*owing to them by the insolvent, amounting to at least two thirds of all the money owing by the insolvent, are to present a petition praying that his estate may be assigned and that he may be discharged. This provision has not been regularly complied with. In order to make up the two thirds, compound interest was illegally computed on the claim of one of the petitioning creditors. And through collusion, some demands against the insolvent were not inserted by him in his list of debts. There were three petitions in this, case, one of them signed in 1825 by some of the creditors, another, signed in 1828 by other creditors, and the third, signed in 1828 by a single creditor, whose demand was of small amount. The first two were addressed to the recorder of Hudson, and only the last was addressed to Mr. Justice Miller ; but the three petitions were presented to Mr. Justice *584Miller as the foundation of his proceedings. This was irr'egular. It was likewise irregular and unreasonable, that a petition signed in 1325 should be presented in 1828, without again consulting the creditors who signed it; many changes would probably take place in regard to the debts and in regard to the insolvent’s property, during so great a lapse of time.

The affidavit must specify the nature and consideration of the creditor’s demand. In the case of one of these creditors the consideration is stated to be “ responsibilities assumed ” ; which is too loose and indefinite. *Slidell*v. M'Crea, 1 Wendell, 162 ; *In the matter of Cook,*15 Johns. R. 183.

It appears that one petitioning creditor held collateral securities which he did not offer to surrender to the assignee ; by the statute, therefore, he was prohibited from petitioning.

The insolvent must make his application for the benefit of the statute, in the county of which he is an inhabitant, &c., “ of which proof shall be made ” to the judge, &c. Here the judge proceeded upon the insolvent’s own oath of his being an inhabitant; but the statute, by the word *proof,*refers to legal evidence. From the nature of the fact in question, it was susceptible of being proved by the testimony of third persons. *Brown*v. *Hinchman,*9 Johns. R. 75 ; *Wyman*v *Mitchell,*1 Cowen, 319.

The insolvent did not comply with the requisition of the statute, that he should deliver to the judge, at the time of presenting the petition, a full, just and true account of all his creditors and the moneys which he owed to them respective ly, and also a full, true and just inventory of all his estate and of all the books, &c. relating to the same.

The requisitions above specified, are preliminary to the authority of the officer to take cognizance of the case. But supposing all the proceedings to have been regular, still the discharge is not a bar to the action in this State, though it might be a bar to an action in New York. At the time of presenting the petition, the plaintiff’s demand was existing m a judgment of a court of Massachusetts, and all previous claims, oy note or otherwise, were merged in the judgment. The debt is beyond the reach of the insolvent law of New York *585It if no longer to be considered as originating in that State. The effect of the discharge cannot extend beyond the effect of the assignment; and notwithstanding the assignment in present case, the plaintiff might have attached property of the defendant in this State, or arrested his body here, upon this judgment. *Braynard*v. *Marshall,*8 Pick. 196 ; *Ogden*v. *Saunders,*12 Wheat. 213.

*A. L. Jordan,*of Hudson, (with whom was *Whiting,)*for the defendant,

contended that the Court, in determining this case, would be governed by the *lex loci contractus*in the same manner as if they were sitting in New York.- The contract, originating in New York and between citizens and inhabitants of that State, was entered into in reference to the insolvent law, and was extinguished by the discharge pleaded ; and the Court will look through the judgment to the original cause of action. *Wyman*v. *Mitchell,*1 Cowen, 316. By the 8th section of the statute, the discharge, or a transcript thereof, is made conclusive evidence in all the courts within the State of New York, of all the facts therein contained. There are some excepted cases, (§ 13,) where the discharge may be avoided on the ground of fraud; in such cases, however, if the discharge is *pleaded,*the plaintiff must reply that it was obtained by fraud and must annex a notice of the specific acts of fraud relied on. §29. But, in general, the discharge is conclusive of the facts therein stated, and if it be erroneous, the remedy is by certiorari. *Cole*v. *Stafford,*1 Gaines’s R. 249 ; *Service*v. *Heermance,*1 Johns. R. 91 ; *Lester*v. *Thompson,*ibid. 300 ; *Cunningham*v. *Bucklin,*8 Cowen, 178 ; *In the matter of Hurst,*7 Wendell, 239. It is not controverted, that the tribunal by which the defendant was discharged being one of limited jurisdiction, it was incumbent on him to aver and prove such facts as would show that it had jurisdiction of the case. And this he has done. The facts that he was an inhabitant of the county of Columbia in the State of New York, that the plaintiff was an inhabitant of the same State, and that the debt was there contracted, were proved by evidence extrinsic to the discharge ; and all the other facts necessary to authorize the judge to proceed and discharge the defendant, were conclusively proved by the dis *586charge itself. *Cole*v. *Stafford,*1 Caines’s Rep. 249 ; *Service*v. *Heermance,*2 Johns. R. 96 ; *Peebles*v. *Kittle,*ibid. 363; *Jenks*v. *Stebbins,*11 Johns. R. 224 ; *Hines*v. *Ballard,*ibid. 491; *Roosevelt*v. *Kellogg,*20 Johns. R. 210 ; *Slidell*v. *M'Crea,*1 Wendell, 156 ; *Cunningham*v. *Bucklin,*8 Cowen, 178.

*May term*1833.

*Bushnell,*in reply, said, that although the *lex loci*governs in the construction of a contract, the remedy must be pursued according to the *lex fori;*that the .statute, in express terms, makes the discharge conclusive evidence of the facts contained in it, only “ in the courts in the State of New York,” not in the courts of another State, and that even in New York it is not evidence of jurisdiction ; *Morgan*v. *Dyer,*10 Johns. R. 163 ; *Wheeler*v. *Townsend,*3 Wendell, 247 ; and that the provision in the statute, requiring the plaintiff to give notice of the particular acts of fraud relied on to avoid the discharge, applies only to the courts of New York, whereas the present case must be regulated by the rules of pleading in Massachusetts.

SnAvy C. J.

delivered the opinion of the Court. As the question in this case mainly depends upon the provisions and construction of the local laws of New York, the Court must seek for light and instruction in the judicial decisions of that State, and so far as they will afford it, implicitly follow them. We do not think it necessary to follow the learned counsel into the wide field of argument, which was opened, in the present case ; but under the peculiar circumstances of the case, called to consider the construction and legal effect of statute provisions of another State, the practical operation and exposition of which must be so much better and more familiarly known by the local tribunals, the Court feel that their duty will be best accomplished, by confining themselves to the questions necessary to the decision of the cause.

Two questions naturally present themselves, the decision of which will dispose of this cause : —

1. Whether the discharge pleaded, being a discharge under the insolvent laws of the State of New York, supposing it to be valid in that State, would be available as a good defence to the action in this State.

*5872. Whether the proceedings were so far conformable to the .aws of that State, as to render the discharge valid and available, were the'action now pending in that State.

Without reconsidering the vexed question of the constitutionality and effect of a State insolvent law, or recapitulating the authorities, we consider the case of *Ogden*v. *Saunders,*12 Wheat. 213, as an authority for the proposition, that a State insolvent law, when no general law passed by the Congress of the United States establishing a uniform system of bankruptcy is in force, is not *per se,*and by force of the clause in the constitution of the United States vesting in Congress the power of passing such law, unconstitutional and invalid ; but that the law of a State providing for the discharge of an insolvent debtor, upon the surrender of his property, so far as it operates upon contracts made after such law, within such State, by citizens thereof then resident therein, and which by their terms are to be performed and executed within the limits of such State, is valid and binding upon such citizens, and that a discharge obtained by a citizen of such State under such a law, is a valid discharge.1 This proposition embraces the present case. It is founded on a contract made in New York after the passing of the insolvent law of that State, between citizens thereof, domiciled there, and by the terms thereof to be performed there. This particular action, indeed, is brought on a judgment rendered in this Commonwealth in 1823, but in looking into that judgment and the other evidence in the case, it is quite manifest, that when that suit was commenced and that judgment rendered, both parties were citizens of New York, and that the judgment was upon promises made and to be executed there. Although a judgment, to some purposes, is considered as a merger of the former, and as constituting a new cause of action, yet when the essential rights of parties are influenced by the nature of the original contract, the Court will look into the judgment for the purpose of ascertaining what the nature of such original cause of action was. *Wyman*v. *Mitchell,*1 Cowen, 316. Any other decision would carry *588the technical doctrine of merger to an inconvenient extent ana cause it to work injustice. If therefore the defendant has obtained a valid discharge in New York, that is, if all the proceedings have been such as to conform to the requisitions of the law of that State, so that it would have availed him as a valid discharge there, it must under the circumstances have the same effect in the courts of this State.

2. In considering whether the proceedings set forth in the plea in the present case, are sufficient to effect a discharge of this debt in the State of New York, it may be proper to observe, that no question has been raised upon the sufficiency of the plea, in substance or form ; but the question is, whether the evidence adduced and laid before the jury was sufficient to support the plea, and the issues taken upon it. To this question the attention of the Court has been particular!} drawn.

It has been contended, that although the statute of New York is sufficient to determine what shall be deemed competent and legal evidence in the courts of that State, yet here we are necessarily to be governed by our own rules of evidence. But we think this position is not tenable. The question is, whether the contract was effectually discharged by the law of New York ; and the same reason, upon which it is established, that in this Commonwealth we are bound, in certain cases, to give effect to the local law, and hold a discharge under certain circumstances valid, renders it proper and necessary to give effect to a rule of evidence accompanying and making part of it, and providing for the mode of proving such discharge, without which, in many cases, the discharge itself would be unavailing. The New York statute of April 12, 1813, under which this discharge was obtained, as contained in the late revised code, provides that every discharge obtained in the manner therein stated, shall be recorded, and the original discharge, the record thereof or a true manuscript thereof, duly authenticated, shall be conclusive evidence of the proceedings and facts therein contained. Such being the effect of the discharge there, we think it must have the same effect here.1

*589But in order to give it this effect, as the court or magistrate before whom these proceedings are had, exercise a special and .imited authority, and constitute a tribunal of inferior jurisdiction, it must appear that they had jurisdiction. And so it appears to be held in New York. *Service*v. *Heermance,*1 Johns. R. 91 ; *Frary*v. Dakin, 7 Johns. R. 75 ; *Roosevelt*v. Kellogg, 20 Johns. R. 208 ; *Wyman*v. Mitchell, 1 Cow-en, 316.

Then the question recurs, what facts are necessary to give the court or magistrate the jurisdiction vested in them by the statute. We think it must satisfactorily appear, that the magistrate acting holds the office, among the powers of which this authority is embraced, and that he must have jurisdiction of the person and of the subject matter, in the particular case ; that he has jurisdiction of the person, where it is shown that the party petitioning as an insolvent, is an inhabitant of the county,1 and of the subject matter, where the proceedings are brought before him by a petition, purporting to be a petition by the insolvent in conjunction with persons holding two thirds of all the debts due from the insolvent to persons residing within the United States. I say, with creditors purporting to hold two thirds. And it appears to me, that this is all that can be required as preliminary proof, and in order to give jurisdiction, because, whether the debts are all really due, and to the amount stated, is one of the questions, and one of the most important questions, to be judicially inquired into and determined, after the court has acquired jurisdiction.2 The statute provides, among other things, that upon such petition being presented, the judge shall proceed to hear the .proofs and allegations of the parties ; that parties opposing may require a jury trial, and the verdict in such case shall be conclusive ; and that if it shall satisfactorily appear, among other things, that the insolvent is justly indebted to the petitioning creditors, and that their debts amount to two thirds of all the debts due to persons in the United States, and that he has acted honestly &c., the judge shall direct an assignment.

*590Such appears to us to be the practice in New Yoix. In *Taylor*v. Williams, 20 Johns. R. 21, it was objected that the specification of the cause and consideration of some of the petitioning creditors’ debts, was not sufficiently full and precise to satisfy the requirements of the statute ; but the court held, that if it was particular enough fairly to apprize the creditors of the insolvent, of the general ground of indebtedness, and give them a clue to inquiry, it was sufficient. And they distinguished this from another case cited, where a more exact specification had been held necessary, by this consideration, that in cases of insolvency, the opposing creditor has his day to appear and investigate at the hearing before the judge. It might lead to fraud, were the creditor to lie by and not oppose a discharge, and then after the discharge and after the debtor had acquired new credit, to fall upon him and strip him of the property with which new creditors had intrusted him.

From this view of the statute provisions of New York and the practice under them, the question whether the petitioning creditors, do in fact, hold debts to the amount of two thirds, is one of the facts to be judicially tried and determined by the judge or court, in some of the modes pointed out by the statute. It appears to us that it would be preposterous to hold, that, after these judicial proceedings and an inquiry into the reality of the petitioning creditors’ debts, as a part of them, if the debts of the petitioning creditors should be reduced below two thirds, and the adjudication should consequently be a refusal of the judge to order an assignment and grant a discharge, all the previous proceedings were *coram non*judice, that all officers serving process had acted without authority, that witnesses testifying falsely would not be indictable for perjury, and that all the consequences would follow, which attach to a case where a court or magistrate acts without jurisdiction. If he had jurisdiction, then it follows that whether there were two thirds or not among the creditors, was a fact to be judicially tried and proved, and one upon which the adjudication of the magistrate was conclusive, and one, of which the discharge setting forth that such fact was satisfactorily proved, is conclusive evidence. And it follows as another consequence, that this decision, being the adjudication of a court of compe *591tent jurisdiction, must stand unimpeached, unless set aside or reversed by *certiorari*or other proper process, or unless avoided for some of the causes set forth in the act itself, none of the latter of which were set up in the present case.

Here it was proved by evidence independent of the discharge and of the insolvent proceedings, that Mr. Justice Miller was the first justice of the county of Columbia, that Oliver Bagley was an inhabitant of that county, that he did apply by a petition purporting to be the petition of an insolvent debtor conjointly with those who were two thirds in amount of his creditors within the United States. The discharge and other insolvent proceedings purport to have been recorded by the clerk of the county of Columbia, and they are authenticated by the present clerk of that county ; and though an ohjection was taken at the trial, to the exemplification of these proceedings, as not being properly authenticated, yet that objection was afterwards waived. The statute, in terms, confers the authority, on the subject of insolvents, upon the first judge of each county court. It appears to us, therefore, that enough is shown by evidence *aliunde,*to prove that the judge had jurisdiction under the statute, and that all the other material facts necessary to give validity and effect to the discharge, are proved by the discharge itself, in which they are set forth.

' This conclusion is much strengthened by the case of *Cunningham,*v. *Bucklin,*8 Cowen, 178. The question was as to the conclusive nature and character of insolvent proceedings before a commissioner. In giving the opinion, Mr. Chief Justice *Savage*says : — “ There is no question arising here as to jurisdiction. The commissioner had, by statute, jurisdiction of the subject matter. By the petition and oath of Shepherd (the insolvent) he acquired jurisdiction of his person. The subsequent proceedings, if irregular, are voidable, but not void. They may be reversed on *certiorari ;*but while they remain matter of record, and conclusive evidence, tne facts stated in the discharge cannot be controverted.”

Some doubts arose as to the regularity of the commencement of these proceedings, from the fact, that some of the petitions of the petitioning creditors were addressed to a mag*592istrate other than Mr. Justice Miller, having the like jurisdiction at the time, and that two or three years elapsed between the date and the presentation of these petitions, within which great changes in the state of their debts may have taken place. But in answer to the latter objection, it appears that the law has not fixed any time within which the petition shall be acted upon after it is signed ; and this is perhaps the less material, because it must be made to appear by satisfactory proof, that the debts of petitioning creditors did remain at the time of the presentation of the petition, at least to the extent of two thirds of all the debts of the insolvent, otherwise no discharge can be obtained. And as to the other part of the objection, it is manifestly the object of the law to require, that the petitioner shall show that his petition is supported by the concurrence of two thirds of all his domestic creditors. The jurisdiction is vested in several different judges and magistrates, to either of whom application may be made. The statute itself provides how the proceedings shall be continued, when the magistrate before whom they were commenced, shall decease before they are completed. But until they are commenced, it is within the option of the petitioner, to present his petition to any one of the several magistrates on whom this jurisdiction is conferred. As the expression of the assent and desire of the creditors, that the insolvent shall make an assignment, and that proceedings shall be had according to the statute, is of the substance of the creditors’ petition, and the particular magistrate to whom it is addressed, matter of form, and as some time must necessarily elapse, after these petitions are begun to be signed, before the two thirds can be completed, during which some of the magistrates having this jurisdiction may go out of office, we are of opinion that such a petition must be deemed substantially to express the concurrence of the creditors, in the petition of the insolvent to any magistrate having jurisdiction of the subject. We have perhaps felt the more ready to abide by this conclusion, from the consideration, that if this objection be a valid one, of which the local tribunals are far more competent to judge, it is one which lies at the bottom of the whole proceedings, and presents itself prominently upon thq *593face of the record, and therefore the proceedings might at once nave been vacated upon a writ of *certiorari.*

The view which we have taken of the question of jurisdiction, and the conclusive effect of the proceedings,, precludes many of the points raised at the argument, upon the existence and amount of many of the petitioning creditors’ debts, the correctness of the mode of computing interest, and the competency and sufficiency of the proof of the insolvent’s residence. Considering the jurisdiction of the judge to be established, and his proceedings within his jurisdiction as conclusive, we of course cannot inquire into the regularity of any of the proceedings before him, but are bound to conclude that they were regularly and rightly conducted.

*Judgment for the defendant.*

1

 See *Bigelow*v. *Pritchard,*21 Pick. 169; *Burlock*v. Taylor, 16 Pick. 335; *Agnew*v. *Platt,*15 Pick. 417; *Pitkin*v. Thompson, 13 Pick. 64 ; *Frey*v. *Kirk,*4 Gill & Johns. 509.

1

 Sue *Barber*v. *Winslow,*12 Wend. 102.

1

 See *Agnew*v. *Platt,*15 Pick. 417.

2

 See Cowen’s note 694, lo 1 Phillips on Evi. 380.