the owner. But he gave the defendant's counsel leave to move this Court to enter a non-suit, if they should be of a different opinion.

Gibbs now moved accordingly on the ground that the captain having received the goods from the defendant, and not being accountable to any other person for the delivery of them, (for he had received no orders from Gard), it was the same as if they had remained in the actual possession of the defendThat there could have been no doubt if the defendant had taken the bill of lading to his own order at first; and his taking it afterwards before the goods got to the possession of Gard was the same thing. It was equally an acknowledgment by the captain that he held the custotody of them on the defendant's account.

ant.

Lord KENYON, C. J. The right of lien has never been carried further than while the goods continue in the possession of the party claiming it. Here the goods were shipped by the order and on account of the bankrupt, and he was to pay the expence of the carriage of them to London: the custody therefore was changed by the delivery to the captain. In the case of Kinloch v. Craig(a) where I had the misfortune to differ with my brethren, it was strongly insisted that the right of lien extended beyond the time of actual possession; but the contrary was ruled by this Court, and afterwards in the House of Lords though there the factor had accepted bills on the faith of the consignments, and had paid part of the freight after the goods arrived.

GROSE, J.-I consider the delivery of the goods by Pym to the captain to be equivalent to a delivery to Gard.(1)

Per Curiam,

Rule refused.

Smith and Another v. Buchanan and Another.

1 East, 6. Nov. 11, 1800.

A discharge under a commission of bankrupt in a foreign country is no bar to an action for a debt arising here against the bankrupt by a creditor a subject of this country.

ASSUMPSIT for goods sold and delivered, and upon the common money counts. Pleas, 1. non-assumpsit, 2. for a further plea in discharge of the person's estate and effects of the defendants, except any property, if any there be, after the date of a certain deed dated 23d of September 1799 after mentioned, acquired or to be acquired by the defendants, by descent, devise, bequest or in course of distribution, they say, that by a certain law of the state of Maryland, made on the 10th of April 1787, intitled "an act respecting insolvent debtors," it was enacted, that any debtor for any sum above 3007. might apply by petition to the chancellor of the said state, and offer to deliver up all his property to his creditors, a schedule whereof with a list of creditors should be exhibited therewith; and thereupon the chancellor might direct personal notice of such application to be given to the creditors or as many as could be served therewith, or he might direct the notice to be published in the newspapers; and on the appearance of the creditors, or their neglect to appear on

(a) 3 Term Rep. 119. afterwards in Dom. Proc. ib. 786. [S. C. 4 Bro. Parl. Ca. 47. Toml. edit.]

(1) That a delivery of goods to a carrier is equivalent to a delivery to the person ordering them, see a case cited in Godfrey v. Furzo, 3 P. Wms. 186. Vale v. Bayle, Cowp. 294. Dawes v. Peck, 8 Term Rep. 330. Dutton v. Solomonson, 3 Bos. & Pul. 584. Whiting v. Farrand, 1 Conn. Rep. 60. In M Combie v. Davies, 7 East, 5, the doctrine that the right of lien cannot be extended beyond the time of actual possession was again recognized, with this exception, viz. where one who has a lien delivers the goods to a third person as a security, with notice of his lien, and appoints him to continue his possession as his servant for the preservation of his lien. Vide Clemson v. Davidson & al. 5 Binn 392,

[See also Bolin v. Huffnagle, 1 Rawle, 9.-W.]

due notice, the chancellor might administer an oath to the debtor binding himself to deliver up and transfer to his creditors all his property, &c. in such manner as the chancellor should direct; and that the chancellor should thereupon appoint a trustee on behalf of the creditors, and should direct such debtor to execute a deed to such trustee of all his property, rights and claims in trust for the creditors; "and thereupon, and upon the execution of the said deed, and after the delivery of the property, books, bonds, and other evidences of debts to such trustee, and his certificate of such delivery, the chancellor might order that such debtor should for ever thereafter be acquitted and discharged from all debts by him owing or contracted at any time before the date of such deed;" and in virtue of such order such debtor should be for ever so discharged: provided, that any property thereafter acquired by such debtor by descent, devise, bequest or in course of distribution should be liable to the payment of his debts. The plea further stated, that after the making of that law the defendants were joint debtors for more than 3007.; that they petitioned the chancellor and offered to deliver up all their property to the use of their creditors with the schedule and list of creditors thereunto annexed; that thereupon the chancellor gave the due notice to the creditors, and administered the oath to the defendants; and appointed one S. Moale trustee on behalf of the creditors; and directed the defendants to execute a deed to the said S. M. for all their property, debts, rights and claims, &c. in trust for their creditors. That thereupon the defendants did accordingly, on the 23d September 1799, execute such deed of that date, and did then deliver up to the said S. M. as such trustee, &c. all their property, books, &c. who thereupon certified such delivery to the said chancellor; and thereupon the chancellor, according to the said act, ordered that the defendants should for ever thereafter be acquitted and discharged from all debts by them owing or contracted before the date of the said deed; except that any property thereafter acquired by them by descent, &c. should be liable to the payment of their debts. The defendants then averred, that they, at the time when the several causes of action in the declaration mentioned accrued, and until and at the time of the said order of discharge, were inhabitants and residents in the State of Maryland, and that the said several causes of action accrued and were owing before the date of the said deed of trust executed by the said defendants to S. M.; wherefore they prayed judgment, and that their persons, estates and effects, save and except any property, if any, acquired after the date of the said deed by the defendants by descent, &c. may be discharged, &c. A third plea contained the same facts, together with an averment, that the defendants had not since the date of the trust deed acquired any property by descent, &c. and concluded in bar of the action generally. Replication that the causes of action in the declaration mentioned severally accrued to the plaintiffs within this kingdom of England: to which there was a general demurrer and joinder.

Giles in support of the demurrer. The order of discharge obtained by the defendants under the law of the State of Maryland is analogous and equivalent to the certificate of a bankrupt here; and having been issued by a competent jurisdiction in the case of subjects of that State resident there at the time, though it has not the binding force of a law in this country, yet the courts here will take cognizance of and give it effect by adoption and the curtesy of nations. Our courts recognize the laws of a foreign state in many instances. The lex loci governs the constructions of contracts(a): and the distribution of intestate's effects depends on his domicile at the time of his death, though he had property in other countries. Even in the instance in question of bankruptcy, it is in every day's practice that actions are sustained by assignees and trustees under foreign commissions of bankrupt against debtors of the bankrupts residing here; which shews that the law recognizes the

(a) Vide Burrows x, Jemino, 2 Stra. 733.

alteration of the property. But it would be inconsistent and unjust to give effect to so much of the law as divests the property out of the bankrupt, and deny him the benefit of the condition on which it was se divested, namely, indemnity against antecedent claims. If it be true that our courts will give credence to the judicial acts of a foreign state in matters over which they had a competent jurisdiction by the laws of that state, it follows that neither the locality of the contract nor the country of the contracting parties can vary the case. It is clear, that this order would have been a discharge of the defendants if the plaintiffs had instituted their suit in America; and it would have been no answer that the contract was made in England, or that the plaintiffs were subjects of England, and not bound by the laws of Maryland in regard. to bankrupts. It is also clear, that after the proceedings which took place in America it would have been an answer to a suit instituted here by the bankrupts against a debtor that their property was divested by such proceedings. Then in justice they are entitled to avail themselves of the same law for their protection against the suit of a creditor: more especially as the order of discharge was grounded on a good consideration, namely the surrender by the defendants of the whole of their property for the use of their creditors. It is true, that it was holden in Folliot v. Ogden, 1 H. Blac. 123, that a man's having been deprived of all his property by an act of confiscation of a foreign state, which at the same time provided a fund for the payment of his debts there, was no answer at law to a suit by a creditor here. But that went on the ground that no nation will take cognizance of the laws of forfeiture of another. And in Wright v. Nutt, 1 H. Blac. 136, those circumstances were holden to be sufficient grounds for a court of equity to interpose by injunction against the suit of the creditor. In the former case, several cases(a) in Chancery were cited and approved to shew that our courts recognized the bankrupt laws of a foreign state, so as to vest debts due in England to a bankrupt in his curators or assignees in the foreign country. The case however of Ballantine v. Golding, M. 24 Geo. 3. B. R. Cooke's Bank. L. 347. 1st edit., comes nearest to the present, where a certificate obtained under a commission of bankrupt in Ireland was holden a bar to an action here against the bankrupt for a debt arising prior to the bankruptcy. It is true that the debt there was contracted in Ireland; but Lord Mansfield recognized it as a general principle, that what is a discharge by the law of one country will operate as a discharge in another. And he said, that he remembered a case in Chancery of a cessio bonorum in Holland, which is a discharge there, having been allowed the same effect here.

R. Smith, contra, was stopped by the Court.

Lord KENYON, C. J. It is impossible to say, that a contract made in one country is to be governed by the laws of another. It might as well be contended, that if the State of Maryland had enacted that no debts due from its own subjects to the subjects of England should be paid, the plaintiff would have been bound by it. This is the case of a contract lawfully made by a subject in this country, which he resorts to a court of justice to enforce, and the only answer given is, that a law has been made in a foreign country to discharge these defendants from their debts on condition of their having relinquished all their property to their creditors. But how is that an answer to a subject of this country suing on a lawful contract made here? how can it be pretended that he is bound by a condition to which he has given no assent either express or implied? It is true, that we so far give effect to foreign laws of bankruptcy as that assignees of bankrupts deriving titles under foreign ordinances are permitted to sue here for debis due to the bankrupt's estates: but that is because the right to personal property must be governed by the laws of

(a) Ib. 131. in notis, viz. Solomons v. Ross 1764, before Bathurst, J.; Jollet v. Deponthien, 1769 before Lord Camden; and Neal v. Collingham in Ireland, 1764.

that country where the owner is domiciled. That was recognized in the case of Hunter v. Potts, 4 Term Rep. 182. 192. The Court there considered the assignment of the bankrupt's effects in another country, although in fact made in invitum, as equivalent here to a voluntary conveyance by him, Cook. Bank. L. 347. cites Beawes Lex Merc. 499. The case of Ballantine v. Golding is very distinguishable from the present; for there the debt was contracted in Ireland where the commission issued. But in the same page of the book (a) from whence that was quoted is to be found an opinion of Lord Talbot's directly contrary to the conclusion we are desired to draw in this case; for there he held, that through the commission of bankrupt issued here attached on the bankrupt's effects in the plantations, yet his certificate would not protect him from being sued there for a debt arising therein. The same rule then must prevail here.

LAWRENCE, J. If the defendants had made a voluntary assignment of all their property to the use of their creditors, it is not pretended that that would have been a bar to the suit of the plaintiffs; and yet the title of the assignee would have been as valid here as under the foreign commission: which shews that the validity of the title under such an assignment cannot make any difference in the present argument. Then it rests solely on the question, Whether the law of Maryland can take away the right of a subject of this country to sue upon a contract made here, and which is binding by our laws? This cannot be pretended: and therefore the plaintiffs are entitled to judg

ment.

GROSE and LE BLANC, Justices, concurring,

Judgment for the plaintiffs (b)(1)(2).

(a) See the case of Warning v. Knight, Sittings at Guildhall after Hil. T. 5. G. 3 cor. Lord Mansfield, where the same opinion was entertained ib. addenda to 1st edit.

(b) In Pedder v. M' Master, 8 T. Rep. 609. the Court refused to discharge a defendant out of custody who was arrested at the suit of a creditor resident here, on an allegation that the debt was contracted at Hamburgh, and that the defendant had become a bankrupt and obtained his certificate there, and that the plaintiff might have proved his debt under the commission: for the Court said, that as the plaintiff was not resident in Hamburgh at the time of the bankruptcy, they would not decide the question in a summary way, but put the defendant to plead his bankruptcy and discharge. The defendant accordingly filed such a plea, which the court held to be informally pleaded; and the matter never came on again.

(1) In Ballantine v. Golding, M. 24 Geo. 3. Cook's Bank. Law 515. (4th edit.) it was laid down by Lord Mansfield as a general rule, That what is a discharge of a debt in a country where it was contracted, is a discharge of it every where. The same doctrine has since been recognized in Hunter v. Potis, 4 Term Rep. 182. Potter v. Brown, 5 East 124. Harris v. Mandeville, 2 Dall. 256. But a discharge under the bankrupt or insolvent law of one country, as to a debt not contracted and due to a person not resident there, will not be available in another country. Van Raugh v Van Arsdaln, 3 Caines 154. Smith v. Smith, 2 Johns. Rep. 235. Proctor v. Moore, 1 Mass. Rep. 198. Emory v. Greenough, 3 Dall. 369. cited and observed upon by Chief Justice Tilghman, 5 Binn. 385, 6. Greenleaf v. Banks, stated and referred to 5 Binn. 384, 386. Green v. Sarmiento, Brown's Rep. 30. App., cited 5 Binn. 386.

In Pennsylvania the rule of reciprocity has been adopted, viz. to give the same effect to a discharge under the bankrupt or insolvent laws of another state, which the courts of that state would give to a similar discharge under the laws of Pennsylvania. Smith v. Brown, 3 Binn. 201. Boggs v. Teackle, 5 Binn. 332. Walsh v. Nourse, 5 Binn. 381.

The most numerous class of cases in which the effect of a discharge under the laws of another state has been considered, is where the debtor, being subsequently arrested, moves for an exoneretur to be entered on the bail-piece. In deciding upon these applications the courts in this country have not been uniformly governed by the same principle.

In New-York it has been settled, that the creditor is in all cases entided to the remedy provided by the laws of that state; and upon that ground the motion has always been denied. Smith v. Spinolla, 2 Johns. Rep. 198. Sicard v. Whale, 11 Johns. Rep. 194. It results as a necessary consequence of this doctrine, that if the discharge goes only to protect the body of the debtor from arrest, it can have no effect whatever in another state. It cannot operate upon the process, because that is governed by the lex loci fori; and by its terms it is not to affect the debt. White v. Canfield, 7 Johns. Rep. 117.

In Pennsylvania the lex loci fori has accommodated itself more courteously to the law

The King v. The Inhabitants of Bilton with Harrowgate.

1 East, 13. Nov. 12, 1800.

The examination of a soldier touching his settlement, which is made evidence by the Mutiny Act, must be authenticated before it can be received in evidence, and does not prove itself prima facie, though the paper appear to be in the form prescribed by the statute.

ON an appeal to the quarter sessions for the West Riding of Yorkshire against an order of two Justices, removing Grace Barber, the wife of Henry Barber, a private soldier in the fifth battalion of Royal Artillery, together with Ann and Henry their children, from the township of Leeds to the township of Bilton with Harrowgate, the sessions confirmed the order, subject to the opinion of this Court on the following case.

On hearing of the appeal, Mr. John Atkinson, the attorney for the respondents, produced a written paper, of which the following is a copy:

"Durham, to wit, The examination of Henry Barber, a private soldier in the 5th battalion of Royal Artillery, taken and made before us two of his majesty's justices of the peace for the said county, the 5th of March 1800; who on his oath saith, that some time in the beginning of the year 1777, he bound himself by indenture to Richard Smith, in the township of High Harrowgate, in the parish of Knaresbrough in the county of York, to serve him as a shoemaker for the term of seven years. That he served the whole of such term, and slept all the time in his master's house in the township of High Harrowgate. And saith, that he hath never since gained any other settlement. Taken and sworn the day and

year aforesaid, before us Richard Wallis, Robert Green.

The mark of X Henry Barber."

Which paper writing so produced by the said John Atkinson he said that he had received from Musgrave the overseer of the poor of Leeds; but the said Musgrave was not produced as a witness, nor was any evidence whatsoeveroffered either to prove that the said Richard Wallace and Robert Green were magistrates for the said county of Durham; or that the signatures subscribed to the said paper writing were the signatures of the said magistrates, other

of the country where the debt was contracted and discharged. Millar v. Hall, 1 Dall. 229. Thompson v. Young, 1 Dall. 294. Donaldson v. Chambers, 2 Dall. 100. Harris v. Mandeville, 2 Dall. 256. Hilliard & al. v. Greenleaf, 5 Binn. 386 n. Smith v. Brown, 3 Binn. 201. Boggs & al. v. Teackle, 5 Binn. 332.

It may be proper, however, to observe, that the case of James v. Allen, 1 Dall. 188. decided by the court of Common Pleas in Philadelphia county in 1786, agrees in principle. with the decisions in the state of New-York.*

(2) [It is settled in Pennsylvania, that an involuntary transfer, by proceedings in bankruptcy in a foreign state, of property in Pennsylvania, will be respected, except so far as it interferes with the claims of American creditors-and foreign assignees may bring suit in the name of the bankrupt. Bankruptcy in another country operates not as an absolute assignment of the bankrupt's estate in Pennsylvania but, subject to the rights of domestic creditors, it confers on the assignee an equitable interest in the effects. Merrick's est. 2 Ashm. 485. Same est.: 5 W. & S. 9. Lowry v. Hall, 2 do. 32. Mulliken v. Aughinbaugh, 1 Penn. R. 117.

Abraham v.

In New-York, as above stated, a different rule has governed the courts. Plestoro, 3 Wend. 535. Willick v. Renwick, 23-do. 65. Johnson v. Hunt, do. 87. In Massachusetts, they have adhered to the principle which obtains in Pennsylvania. Blake v. Williams, 6 Pick. 286. Whipple v. Thayer, 16 do. 25. So, in Virginia, Bland v. Drummond, 1 Brockinb. C. C. R. 62.

In the state of Louisiana, the bankrupt discharge of a debtor protects his person and future property from liability, for all previous debts contracted in the country or state in which, he was discharged, but the discharge of the debtor in Great Britain will not protect his person or future property from liability for a debt previously contracted in the U. States. Milchell v. McMillan, 3 M. & R. 688.-W.]