N. Y. Supreme Court.-Mather v. Delafield. ceased, late of the City of New York, or of which the said Andrew Mather deceased was seized, at the time of his death; and to lease, sell, dispose of and convey the same in the same manner as a citizen of the United States may or can do, and all the right, title and interest of the people of the State of New York, in and to such lands is hereby released. 2. This act shall take place immediately." The certificate of exemplification annexed to the copy was as follows: "State of New York, Secretary's Office, I have compared the preceding with an original act of the Legislature of this State on file in this office, and do certify that the same is a correct transcript therefrom, and of the whole of said original. Given under my hand and seal of office, &c. John C. Spencer, Secretary of State." An emplified copy of the same act, with certain endorsement thereon, was also read in evidence by the defendant's counsel. The endorsements were in these words: State of New York. In Senate. March 9, 1840. This bill having been read the third time, resolved that the bill do pass. By order of the Senate, F. A. Tallmadge, President pro tem." "State of New York. In assembly. April 23, 1810. This bill having been read the third time, resolved that the bill do pass. By order of the Assembly, Geo. W. Patterson, Speaker. Approved this 24th day of April, 1842. William H. Seward." "State of New York, Secretary's office. This act having been approved and signed by the Governor, on the 24th day of April, 1840, I do hereby certify that the same became a law on that day. John C. Spencer, Secretary of State." The court below charged the jury, that the act of 1840 did not operate to vest in or confer on the plaintiff any title to or estate in the premises in question, for the reason that it was not proved to have been passed by a two-third's vote; and for the additional reason that the act did not profess to release or convey the title of the estate to any other land than such as had been devised to the plaintiff by Andrew Mather deceased. The plaintiff's counsel excepted. The jury rendered a verdict in favor of the defendant, and after judgment, the plaintiff sued out a writ of error. T. W. Tucker, for the plaintiff in error. C. O'Conor, for the defendant in error. By the Court, CowEN, J.-It is admitted that the plaintiff, being an alien, took no interest as heir of Andrew Mather deceased. His other heirs being aliens also, the interest in the premises in question passed to the State. The right of the plaintiff, then, if any, depends upon the statute of April 24th, 1840, which he claims released to him the real estate of which Andrew Mather was seized at the time of his death. I entertain no doubt that such was the intent of the legislature; nor that they have used words sufficiently indicating such intent. The act, however, is a private one, and purports to be an appropriation of the public property to the use of an individual-a private purpose within the meaning of the constitution--and therefore, requiring for its passage the concurrence of two thirds of the members elected to each house. (Const. of N. Y. Art. 7, § 9.) The certificate of authentication by the Secretary of State did not show such a concurrence. Perhaps it is rather inferable from the certificate produced by the defendant that there is nothing in the Secretary's office by which the passage of the act as a twothird bill can be known. Whatever might be urged in favor of presuming the act to have been passed by the requisite majority, if a public statute, it is clear that being private, we ought not to give it effect until the plaintiff shows, affirmatively, the constitutional vote. We think the only mode of doing so, is by proof of there being on file in the Secretary's office, the certificates of authentication required by the 1 R. S. 143, § 3, 2nd ed. This enacts that no bill shall be deemed to have been passed by the assent of two-thirds of the members elected to each house, unless so certified by the presiding officer of each house. The 11th section which follows, was not intended as a qualification of the 3d section. I cannot intend that there was a sale of the land by the State to the plaintiff. No consideration is expressed in the statute, and the transfer was evidently gratuitous. These propositions were divided into points and considerably discussed at the bar; but they may all be said rather to strike the mind as obvious, on the bare mention of them, than to call for an extended argument in their support. Judgment affirmed. N. Y. Supreme Court.-Sackett v. Andross. SACKETT V. ANDROSS. York, and within the southern district of N. Y., and within the jurisdiction of the said United States court for the southern district of N. Y-, and at the same time being a bankrupt within the true intent and meaning of 'An act to establish a true and uniform system of bankruptcy throughout the United States,' passed August 19th, 1841, presented a petition to the district court of the U. S. for the southern district of N. Y., signed by the said defendant, and duly verified by such affi A plea of nil debet to an action of debt on the judgment of a domestic court of record is bad. If the defendant mean to deny the existence of the judgment, he should plead nul tiel record. In pleading a bankrupt discharge, a general averment that the court by which it was granted had jurisdiction, will not answer; the facts necessary to confer jurisdiction must be set forth. Where the plea alleged, among other things, that the defendant presented a petition for his discharge. &c, signed by him," and duly verified by such affidavits, schedules and other necessary and proper papers as are required by the bank-davits, schedules and other necessary and rupt act" Held, not sufficient to show that the proceedings were regularly commenced, but that the plea should have stated what papers in particular were presented. The plea should be so framed as to show that the Such plea is bad, moreover, if it omit to aver that proper papers, praying, among other things, that the said defendant might be entitled to the benefit of the act aforesaid, and be discharged from all his debts, as are required by the provisions of the said act of congress passed the 19th August, 1841; and that in pursuance of said act such proceedings were thereupon had, that on the 4th day of March, 1842, the said defendant was duly decreed a bankrupt by the said court according to the provisions of the said act; and that after such decree such proceedings were thereupon further had according to the directions and prcvisions of the said act, before Samuel R. Betts, Esquire, a judge of the said district court of the U. S. for the southern district of N. Y. aforesaid, that afterwards, to wit, on the 2nd day of July, 1842, at the city of N. Y., and within the jurisdiction of said court, in pursuance of the aforesaid provisions of the said act, and by virtue of the power and authority in him vested, did make and execute under his hand and The voluntary branch of the act of congress relating to bankruptcy, passed August 19th, 1841, is authorized by the constitution, and therefore valid. BRONSON, J. dissented, holding the voluntary branch of the act unconstitutional for the following reasons, viz. 1. It is not confined to traders, but extends to all classes of debtors; 2. It places the whole power in the hands of the debtor, without giving any means of coercion to the creditor; 3. It discharges the debt without the consent of the creditor in any form, and so violates the obligation of the contract; 4. If it re-seal in the words and figures following, to troacts so as to discharge debts contracted before its passage, then it not only violates contracts, but goes entirely beyond the scope of the bankrupt power: It its not a law, but a sentence or judgment against creditors; and congress has no judicial power over the subject. The voluntary branch of the act applies as well to debts created before as after its passage. Per Curiam; BRONSON, J. dissenting. DEBT upon a judgment for $620,07 recovered by the plaintiff against the defendant in the superior court of the city of New York, August term, 1841, in an action upon promises. Plea, 1. Nil debet; 2. Actio non &c., "because the said defendant says, that the aforesaid judgment in the said declaration mentioned, and before the commencement of this suit, that is to say, on the 5th day of February, 1842, at the city and county of New wit, In Bankruptcy. At a District Court,' &c. [setting out a certificate of discharge granted July 2, 1842,] as by the said discharge or the record thereof in the office or the clerk of the district court of the U. S. for the southern district of N. Y. at the city of N. Y., may more fully and certainly appear; and the said William N. Andross, defendant in this suit, and William N. Andross, the said bankrupt in the said discharge mentioned, are one and the same person, and not other and different persons; and this he is ready to verify: wherefore the said defendant prays judgment if the said plaintiff, his action aforesaid against him, ought not to have or maintain." The plaintiff demurred to each plea, and the defendant joined in demurrer. N. Y. Supreme Court.-Sackett v Andross. M. T. Reynolds, for the plaintiff. C. Sherwood, for the defendant. BRONSON, J.-The plea of nil debet to an action of debt on the judgment of one of our own courts of record is bad. If the defendant wished to put the judgment in issue, he should have pleaded nul tiel record. (Wheaton v. Fellows, 23 Wend. 375.) The plaintiff is entitled to judgment on the demurrer to the first plea. There has either been some error in copying the second plea into the demurrer book, or else it was not drawn with very great skill. Some words are omitted which the pleader seems to have had in his mind, while others are inserted which might better have been left out. But there are substantial defects in the plea. It was not necessary to set out all the steps which were taken in obtaining the discharge; but it was necessary to show that the court or officer acquired jurisdiction to grant it. And it is not enough to say in general terms that the court or officer had jurisdiction; but the facts on which jurisdiction depends must be specially alleged. The plea shows that the defendant resided within the jurisdiction of the court; but it fails to show that he presented the necessary papers to put the court in motion. As a voluntary bankrupt it was necessary that he should present a petition setting forth a list of his creditors, their respective places of residence, and the amount due to each, together with an inventory of his estate, verified by oath. (Bankrupt Act of August 19, 1841, § 1.) Upon the most favorable construction of the plea, the averment is, that the defendant presented a petition duly verified by such affidavits, schedules and other necessary and proper papers as are required by the bankrupt act. Although it was not necessary to set out the contents at large, he should have stated what papers in particular he presented, so that the court could judge whether they were such as are "necessary and proper." The party must plead facts, and leave the law to the court. The plea does not directly allege that a discharge was granted by any body. But if we look at what the pleader probably intended to say, to wit, that a discharge was granted by Judge Betts, the plea will still be bad. A discharge could only be granted by the court-not by a judge. (§ 1, 4, 6.) Again: The discharge as set out in the plea is restricted to debts "proveable under said act;" (and see § 4.) There is no averment in the plea that the debt due to the plaintiff was proveable under the bankrupt act, and without such averment the discharge does not appear to be a bar to the action. Finally: There is no averment that this debt was not created in consequence of the defalcation of the defendant as a public officer, or while he was acting in a fiduciary capacity. (§ 1.) The federal courts are not agreed on the question whether one who owes fiduciary debts can become a voluntary bankrupt, so as to obtain a discharge from any of his obligations; but they are agreed that fiduciary debts are not discharged by the certificate, unless the creditor comes in and proves the debt. The plea should have shown that this was a debt on which the discharge might operate. As it is almost a matter of course to allow such defects as have been mentioned to be cured by an amendment, it will be proper to consider the broader question made at the bar; to wit, whether the discharge, if well pleaded, would constitute a good answer to the action. And here it will only be necessary to notice two facts. The defendant is a voluntary bankrupt, or one who has been discharged on his own motion, and not at the instance of his creditors; and the debt was contracted before the bankrupt act was passed. Upon these facts two general questions arise; first, whether the insolvent or voluntary branch of the statute is to have a retroactive effect, so as to annul existing contracts; and second, whether it was within the constitutional power of congress to pass the law. First. A law which nullifies existing contracts, or destroys a right already vested; or which in any other way takes the property of one man without his consent, and gives it to another, is so utterly repugnant to the principles of justice, and so demoralizing in its tendency, that it would be a libel upon congress to impute the attention to pass such a law, unless we can find a justification plainly written in the statute book. It is not to be made out from N. Y. Supreme Court.-Sackett v. Andross. room equivocal expressions, nor by tracing general words into remote and unjust conWhen there is any sequences. for construction, the law should be taken in that sense which will best stand with honesty and fair dealing. A distinction may be taken between that branch of the statute which is properly called a bankrupt law, and that which is in truth an insolvent law under another name. A bankrupt law proper is not made for the relief of the debtor, but rather for his punishment. It acts upon him in invitum. At an early day the bankrupt not only forfeited all his estate, but he was treated as a criminal, and might be seized and shut up in prison. And although the rigor of the law has since been very justly abated, it is still the leading feature of a proper bankrupt system that it is a remedy in the hands of the creditor for the collection of his debt. It enables the .creditor to set aside fraudulent conveyances of the bankrupt's estate, to overreach preferences among creditors, and to seize all the effects of the debtor before they have been squandered, and cause them to be applied to the discharge of his legal obligations. If such a law be made to retroact, it neither takes away vested rights, nor works injustice in any form. The creditor can have no more than his due, and the bankrupt is only charged with the payment of his debt. No favor is shown to the one, and no wrong is done to the other. But when we come to that feature in the statute which enables the debtor, without the concurrence, and against the will of the creditor, to demand a discharge from his legal obligations, very different considerations arise. If such a law be wholly prospective in its operation, it can be subject to no great objection. The credit is then given with reference to the existing state of things. The law may be said to enter into, and form a part of the contract; and when the debtor is afterwards discharged, it is no more than the creditor could have anticipated as a possible event at the time he parted with his property. But if a law enacted after the credit was given be made to retroact so as to annul the prior obligation of the debtor, it will be nothing less than an act of arbitrary power, without the semblance of justice to support it. If then we find in this statute expressions which look back upon the past, they should, if possible, be understood as applying only to that class of cases where the creditor, and not the debtor, is the acting party. And in other cases, general words should be understood as applying only to future obligations. In this way we shall promote justice, and save ourselves from the reproach of having carried the modern doctrine of repudiating debts into the national legislature. Let us now see what foundation there is for the argument that a voluntary bankrupt may be discharged from the debts which he owed before the statute was enacted. The first section provides, that "all persons whatsoever, residing in any state, district or territory of the United States, owing debts which shall not have been contracted" in a fiduciary capacity, may present a petition to the proper court, and be declared bankrupts within the purview of the act. The section then goes on to provide, not that all, but that particular classes of persons, to wit, merchants, retailers, &c., may be declared bankrupts at the instance of their creditors. There is much reason for saying that the words "all persons whatsoever owing debts," were used to mark the distinction between the two classes of cases for which the statute provides, and not for the purpose of giving a retroactive operation to the law. All debtors may become voluntary bankrupts; but no one shall be declared a bankrupt against his will, except merchants and other traders. The argument for the defendant lays great stress upon the word "owing"-all persons owing debts may present a petition. But clearly the words are not to be taken in their most literal sense and with this emphasis; for then such persons only could obtain relief as were owing debts at the time the statute was passed, and those who should afterwards become debtors would be without remedy. This shows that the statute is open to construction, and it should be read with reference to the fitness of applying it to any particular description of N. Y. Supreme Court-Sackett v. Andross. debts. It may well apply to such debts as are contracted after the law passed; but it cannot be applied to the prior obligations of the debtor without violating that great principle of jurisprudence which for bids that a statute should be so construed as to annul contracts, or take away vested rights. Even if the thing be within the letter, the statute shall, if possible, be so read as not to touch it. I will presently refer to some of the authorities which support this position. Although this statute had but a brief existence, it was professedly enacted for all time to come; and the great, if not the only object of the legislature must have been to provide for the future. If it had been the intention of congress that present as well as future obligations should be discharged, it is but reasonable to suppose that they would have used words so plainly manifesting that intention as not to leave it an open subject for discussion. When our own legislature, in the year 1811, were about to provide a jubilee for all debtors, they took care to say in express terms, that " any insolvent debtor who now is, or hereafter shall be imprisoned on any civil process, or who now is, or hereafter may be" sued, may present a petition and obtain a discharge. (6 Web. 200.) That law, so far as it acted upon the past, has long since been declared unconstitutional and void by the supreme court of the United States. I ought in justice to add, that the law was almost universally condemned by the people, and it was repealed at the end of ten months from its enactment, long before it had been declared void by the judiciary. (6 Web. 349.) The fourth section of the act of congress declares, that when the bankrupt has conformed to all the requisitions of the act, he shall be" entitled to a full discharge from all his debts:" and the same shall be deemed "a full and complete discharge of all debts proveable under this act." And the fifth section provides, that "all creditors" may come in and prove their debts, including such debts as are not due and payable until a future day;" and including also "uncertain or contingent demands.' Now upon the principles already stated, the words "all debts" as here used, should be understood to mean such debts as might be contracted after 66 passing the act. The words may have a wider influence when applied to cases of involuntary bankruptcy, where the law acts on the debtor by way of giving a new remedy to the creditor. But they cannot be applied to the existing debts of the voluntary bankrupt, without violating a rule of construction which has its foundation in the immutable principles of justice. It is a general rule that a statute shall not be so construed as to give it a retrospect beyond the time of its commencement. (2 Inst. 492; 1 Black. Comm. 45, 6; Bac. Ab. Statute C.) This is not only the doctrine of the common law, but it is a principle of general jurisprudence. (Dwar. on Stat. 680; Dash v. Van Kleeck, 7 John. 477, per Kent, Ch. J.) And general words in a statute shall be so restricted as not to do a wrong to any one. The statute of Glocester, ch. 1, provided that the disseizee should recover damages in a writ of entry founded on a disseizin, against him which is found tenant. And yet Littleton says, that one who did not agree to the feoffment by which he was made tenant, and never took the profits of the land, shall be discharged of the damages, although he is found tenant, (Litt. § 685.) Lord Coke in his commentary upon the section says, "here it appeareth that acts of parliament are to be so construed, as no man that is innocent, or free from injury or wrong, be by a literal construction punished or endamaged. And therefore in this case, albeit the letter of the statute is general to give damages against him that is found tenant," yet, as the defendant was not in fault, "he shall not be charged with the damages.' (Co. Litt. 360, a.) The case of Gilmore v. Shuter, is reported in several books. (1 Freem. 466; T. Jones, 108; 2 Lev. 227; 1 Show. 17; 2 Mod. 310; 1 Vent. 330.) There was first a parol promise made in consideration of marriage. Then came the statute of 29 Car. 2, ch. 3, declaring "that no action shall be brought whereby to charge any person upon any agreement in consideration of marriage," unles the same shall be in writing. Nothing could be more comprehensive than this language. It included promises which had already been made, just as plainly as it did those which should be made in future. And yet in this action, which was commenced after the passing of the act, the |