vert the facts stated in the bill; but set up his discharge under the insolvent laws of Maryland as a bar to the plaintiff's claim. With his answer, he filed a copy of the record of the proceedings in the action at law in the County Court of Alleghany, and upon his application for a discharge as an insolvent debtor; and the insolvent laws of Maryland were made a part of the record. The record shewed that the proceedings, on the application of M'Carty, to be discharged as an insolvent debtor, had been strictly regular. That Gibson had ap peared, as he was authorized to do under the statutes, and filed objections to his discharge; and that the issue made up upon these objections had been tried by a jury, and a verdict found in favour of M'Carty; and that he had been regularly discharged by the judgment of the Court in October 1832, "from all his debts, covenants, promises and engagements due from, or owing or contracted, in his individual as well as in his copartnership capacity, at the time of his application, for the benefit of the act of assembly, and supplements as aforesaid, according to the true intent and meaning of the act of assembly for the relief of sundry insolvent debtors, and the several supplements thereto; provided that any property which he may hereafter acquire by gift, descent, or in his own right by bequest, devise, or in any course, of distribution, shall be liable to the payment of his debts." The fifth section of the Maryland statute of November 1805, provides: "That upon the said petitioning debtor's executing and acknowledging a deed to the trustee to be appointed as aforesaid, which deed is hereby directed to be recorded within the time limited by law, conveying all his property, real, personal and mixed, and all debts, rights and claims, agreeable to the oath or affirmation of such debtor as aforesaid, and on his delivery to the said trustee of all his said property which he shall have in possession, and of his books, pa 1848. October Term. M'Carty V. Gibson. 1848. October Term. M'Carty ข. Gibson. pers, and evidences of debt of every kind, and the said trustee's certifying the same in writing to the County Court, it shall be lawful for the County Court to order that the said debtor shall be discharged as well from all debts, covenants, contracts, promises and agreements, due from, or owing or contracted in his individual, as also in a copartnership capacity, by him, before the passage of this act, or at the time of his application to the County Court for the benefit of this act, and by virtue of such order, the said debtor shall be discharged as aforesaid; provided, that no person who has been guilty of a breach of the law, and hath been fined or is liable to be fined for such breach, shall be discharged from the payment of any fine incurred for any breach of the laws of this State; and provided, that any property which he shall hereafter acquire by gift, descent, or in his own right, by request, devise, or in any course of distribution, shall be liable to the payment of the said debts; and provided also, that the discharge of such debtor shall not operate so as to discharge any other person from any debt." The ninth section of the said act provides: "That if any creditor, on the application of any debtor to the County Court, or within two years thereafter, shall allege in writing to the County Court, that such debtor hath, directly or indirectly, sold, conveyed, lessened, or otherwise disposed of, or purchased in trust for himself, or any of his family or relations, or any person or persons, entrusted or concealed any part of his property of any kind, or any part of his debts, rights or claims, thereby to deceive or defraud his creditors, or any of them, or to secure the same, or to receive or expect any profit or advantage thereby, or that he has passed bonds, or other evidences of debt, either without consideration, or on improper consideration, or lost more than one hundred dollars by gaming at any one time, or hath assigned or conveyed any of his property, with intent to give an undue and improper preference to any creditor or creditors, or security, before the passage of this act, or before the time of his application to the County Court for the benefit of this act, the said County Court may thereupon, at the election of the creditor making such allegation, either examine the said debtor, and any person or persons to whom he may have made any conveyance of his property, or passed bonds or evidences of debt as aforesaid, on interrogatories (of which interrogatories the person or persons answering the same shall, at the election of the person or persons making the allegation, be furnished with a copy or copies,) on oath or affirmation, touching the subject of said allegations or direct an issue or issues in a summary way, without the form of an action, to determine the truth of the same; and if, upon the answer of the said interrogatories, or the trial of the said issue or issues by a jury, such debtor shall be found guilty of any fraud or deceit of his creditors, or loss by gaming as aforesaid, or having given preference as aforesaid, he shall be forever precluded from any benefit of this act." The effects or debts attached in this case, were not acquired by the defendant M'Carty, by gift, descent, or in his own right by bequest, devise, or in any course of distribution. When the cause came on to be heard in the Court below, that Court held that the discharge of M'Carty under the insolvent laws of Maryland, was no bar to the plaintiff's claim; and made a decree against him for the amount, and against the defendants Cornelius R. and David Long, for the sums they admitted to be due from them respectively to M'Carty, to be applied in discharge pro tanto, of the decree against him. From this decree, M'Carty applied to this Court for an appeal, which was allowed. The case was argued here in writing, by Leigh, for the appellant, and Philip Williams, for the appellee. 1848. October M'Carty V. Gibson. 1848. October Term. M'Carty V. Gibson. For the appellant: I. The first remark I have to make is, that the bond of July 28, 1823, is merged in the judgment of the County Court of Alleghany, Maryland, of 1830, in Gibson's action of debt upon that bond. Gibson invoked the laws of Maryland, obtained judgment, took his debtor's body in satisfaction of his execution, earnestly contested his right to a discharge under the insolvent laws of that State; and being defeated in that, turns round and claims upon his bond. That the bond is merged in the judgment upon it, see 4 Stark. L. Ev., vol. 3, p. 128, note; 6 Co. 45, Higgens" Case. The plaintiff has chosen his own remedy, and can no longer claim under the bond. Toussaint v. Mar tinnant, 2 T. R. 100, 104. In Drake v. Mitchell, 3 East 251, the principle is admitted, though its application to the case before the Court is denied. Though this proceeding is in form in equity, in order to attach the effects of the absent defendant, the claim is strictly legal in its nature. If an action at law had been instituted on this claim, the plaintiff could not have sunk his judgment, and claimed on the bond. II. The judgment of the Court of Alleghany in this case, is, that M'Carty be discharged, of course at the suit of Gibson, and from his judgment particularly, provided that M'Carty's property acquired by gift, descent, bequest, devise, or in any course of distribution, shall be liable to his debts. The Constitution of the United States requires this Court to take it for granted, that the judgment of the County Court of Alleghany, Maryland, was right. C. U. S., art. 4, § 1; L. U. S. 1 Cong. 2 Sess. ch. 2; 2 Bior. 102; Clarke's adm'r v. Day, 2 Leigh 172. If it was wrong in not providing that Virginia or foreign creditors, and particularly the plaintiff, because he was a Virginia creditor, should be no wise affected by M'Carty's discharge, Gibson ought to have appealed to the N 1848. October Term. Supreme Court of Appeals of Maryland. He cannot sink his Maryland judgment by claiming upon the original bond executed in Virginia, and contest in Virginia, M'Carty the regularity of proceedings in Maryland, to which he was himself a party, in which, indeed he was the actor. But, upon examination of the laws of Maryland, in the book filed, and by consent made a part of the record, I submit that the judgment is comfortable with them. Act of 1805, ch. 110, § 5, p. 16, 17; of 1812, ch. 88, § 3, p. 26; of 1819; ch. 88, § 5, p. 35; of 1828, ch. 70, 6, p. 51. III. Taking it, then, that M'Carty stands discharged in Maryland, from all his creditors, and particularly from Gibson, we are to enquire, whether he is discharged from Gibson in Virginia. The doctrine is laid down, Story's Conf. Laws, § 348, that "if a State should, by its laws, provide that a discharge of an insolvent debtor under its laws, should be a discharge from all contracts, and even those made in a foreign country, its own Courts would be bound by such provisions; but they would be held nullities in every other country." And if Gibson had never invoked the laws of Maryland to his aid; if he had never brought a suit on his bond against M'Carty in the County Court of Alleghany, and recovered judgment; or if, having recovered judgment, he had never prayed him in custody, and prosecuted him to insolvency; or even, if M'Carty, having been imprisoned on Gibson's judgment, he had taken the oath of insolvency, without any proceedings on Gibson's part, under the laws of Maryland, to hold him bound, then in the first case certainly, in the second case probably, and in the third case possibly, Gibson, being a citizen of Virginia, and the debt he claimed having been contracted here, might not, in a Court of Virginia, be bound by M'Carty's discharge as an insolvent debtor in Maryland. But Gib VOL. V-40 v. Gibson. |