In re Wendell — 19 Johns. 153

Majority

p. 153

In the matter of Daniel T. Wendell.

Headnote

An insolvent debtor against whom a judgment was rendered in Z)e cember, 1816, on a note given in October, 1812, was discharged in June, Í8I7, under the insolvent act of A pril, 1813, which required tmo-thirds of the creditors to petition for the discharge of the debtor: the act of the 3d of April, 1801, which required three-fourths of the creditors to petition, was, by the repeal of the insolvent act of the 3d of April, 1811, revived, and in force, in October,, 1812, when the original contract was made : Held, that the difference between the two acts, (though, parts of the same system, in regard to insolvent debtors,) was so material, that the insolvent could not be considered as discharged under the act of 1801, but under the act of 1813, passed subsequent to the time of making the contract, and, being, therefore, in this respect, unconstitutional, the discharges under it v(a$ void.

THIS was a motion for mandamus to the Mayor’s Court of the city of Albany, to require and command that Court to set aside a rule, setting aside a fieri facias issued out of that Court, in favour of Thomas Trevor against Daniel T. Wendell. It appeared that the judgment was rendered the 4th day of December, 1816, on a note given on the 8th of October, 1812; and that Wendell was discharged on the 19th of June, 1817, under the insolvent act of the 12th of April, 1813. (1 R. L. 460.) On the motion in the mayor’s court, something was said as to the irregularity of issuing the execution without a scire facias, but it appeared that an execution had been issued within the year, and nulla bona returned thereon. The Recorder, in giving his opinion, did not place it on any irregularity. The amount of his opi. nion was, that when the original contract was,entered into, the act of the 3d of April, 1801, being in force, by the repeal of the act of the 3d oí April, 1811, and the act of 1801, authorising the discharge of an insolvent debtor, on the petition of three fourths in amount of all his creditors, the act of the 12th of April, 1813, which required two-thirds in amount of the creditors to petition for the discharge, was a continuation of the same system ; and that the difference in amount between two-thirds required",by the act of 1813, and three-fourths required by the act of 1801, was not so material an alteration of the law, as to invalidate the discharge.

delivered the opinion of the Court. If we are to consider Wendell as discharged under an insolvent act passed posterior to the contract he has made, then the principles adopted by the Supreme Court of the United States, in Sturges v. Crowningshield, are directly applicable ; and any further discussion is precluded by the cases of Mather v. Bush, and Roosevelt v. Cebra. It does not become us to evade the decision in Sturges v. Crowningshield, by any subtleties or refinements; and unless there bé a valid distinction between that case and this, we must give

p. 154

effect to the judgment of the Supreme Court of the United States. To say that an act which authorises the discharge of an insolvent from all his debts, and protects his future acquisitions from the reach of bis creditors, upon the petition of two-thirds in amount of his creditors, is the same in primciple, with an act attended with the like -consequences which requires the petition of three-fourths in amount of the creditors, because the same forms of proceeding are adopted in both, appears to me unsound. The position taken by this Court, in Mather v. Bush, that if a contract be entered into during the existence of an insolvent law, the law becomes part of the contract, and is in the view of the parties; and that, therefore, it does not infringe the constitution of the U. S. by impairing the obligation of such contract, if the debtor becomes insolvent and is discharged under a law co-existing with the contract,, cannot aid the debtor here ; for the act under which he was discharged, did not exist when the contract was made. The act of 1803, gave greater facility to the discharge of the insolvent, than the act of 1801, by permitting creditors, to a less amount of debts, to become petitioners. The difference may be very material in many cases, and we cannot say, that even in this case, the debtor would have been discharged, but for the superior facility afforded him by the act of 1813 .

Motion granted.