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there is no proof of such publication. By every definition of an affidavit, it must be signed. (2 Sand. 648, and cases cited; 16 Barb. 319; 2 Kern. 375; 2 Sand. 648; 2 Abb. 175; Whitaker's Practice, vol. 1, p. 166, and the cases there cited; 2 R. S. chap. 17, art. 3, § 178; 14 Abb. 45.)

II. By the affidavit of G. C. Stimson, of the publication in the New York Day Book, "the first publication was May 28th, 1859," which leaves only sixty-three days between the first publication and July 30th, 1859, the day the affidavit was made, which gave the judge no jurisdiction to grant the discharge. (Small agt. Wheaton, 2 Abb. Pr. R. 175, and particularly noticed at bottom of page 179; Demarest agt. Gray, 10 Abb. p. 468; Anon. 1 Wend. p. 90: 9 Abb. p. 374, decides that the publication must be seventy days; Stanton agt. Ellis, 16 Barb. Sup. C. R. 399; affirmed in 2 Kern. 575. A fatal defect as to time of newspaper notice. Affidavit shows creditors residing more than one hundred miles, ten weeks necessary, by article 14, 3 R. S. In same cases in Boston, only nine weeks notice given.

III. Variance in the title of the newspaper printed in New York, in which the judge ordered the notice to be published, and that in which the proof of publication says it was published. The order was for the "newspaper entitled the Evening Day Book," the proof is of its publication in "the New York Day Book." An omission also occurred in both the Day Book and Brooklyn Daily Eagle notices. In the former, the words "part 2" are left out, in describing the Revised Statutes, under which the proceedings were had, and in the latter were left out the words "of the 5th chapter." These omissions render the notice vague and uncertain, and' are an essential defect.

2d.-IV. There is a want of proper specifications in the affidavits of the petitioning creditors, as to the nature of their debts, how and for what they arose, when and where, and who were the parties; the consideration and character of the indebtedness; accounts not annexed as copies thereof,

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&c. All and each of these should appear on the papers, and without a full and proper statement thereof, the intent to defraud is fairly inferable, and need not be proved. (Slidell agt. McCrea, 1 Wend. 156; Small agt. Wheaton, p. 179, midway of the page; McNair agt. Gilbert, 3 Wend. 344.) For instance, in the affidavit of William Wilson, one of the petitioning creditors, it does not appear when or where the indebtedness arose, for what, nor the price, nor with whom the contract was made, nor any circumstance showing whose debt it is unless it be Smith's.

The same objection to the affidavit of Samuel Suydam; and the same objection is even more pertinent to that of William Munger, who swears that his claim is "for goods, wares and merchandise, sold and delivered, and various stocks secured by indorsement of note drawn by Mr. Smith, now due and payable," without specifying the particulars of the transaction, or annexing the original or copy evidence of indebtedness. The only inference which can be drawn from such a vague and imperfect statement is, that it was a transaction between Munger and Smith. Mr. Munger gives no date or place of sale; does not say who bought or who sold, what kind of stocks, or what description of goods, &c.; whether sold at one or ten different times; no date of note, or time of credit. A most indefinite and uncertain statement. (2 R. S. 199, § 7; 2 Hilton, 338.) Such statements would not uphold a judgment upon confession. (3 Abb. 375; Freleigh agt. Brink, 16 How. Pr. Rep. 272; 12 Id. 410. Lockwood agt. Finn et al. (13 How.), decides the particular point in question. (See also 2 Kern. 245; 1 Wend. 156.) Then how much more full, precise and particular, should every such statement be made in a case where the parties' just claim is to be swept away by a judicial statutory proceeding.

3d.-V. The defendant's discharge is invalid as to this cause of action, because the plaintiffs, parties to the contract, were residents of another state. The note was dated

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in another state. Section 35 of the act has received the following conclusive adjudications: (3 Seld. 500; 2 Wend. 457; 12 Id. 102; 19 Id. 151 and 630; 3 Paige, 338; 5 Hill, 244; 3 Coms. 217; 12 Wheaton, 213 and 369; 6 Peters, 349 and 635; 3 Story on Constitution, 256; 10 Metcalf, 594; 10 Abb. 246; 4 Wheat. 209; 5 How. U. S. Rep. 295; 8 Barn. & Cress. 477; 4 Barnwell & Aldrich, 654; 6 Johns. Ch. R. 59; 4 Wheaton, 122; 10 Abb. 246; 2 Story, 383; 9 Abb. 404; Baldwin agt. Hale, Am. Law Reg. June, 1864.) VI. The discharge does not set forth that the due proof was furnished of the notice having been given as required by law, personally or by mail, twenty or forty days before the day of showing cause. It seems that the clause on

that point is erased from the printed blank used as the discharge. Several of the creditors said to have been "personally served," are ready to swear that no such notice was ever given to them. Schedule not signed, and petition not sworn to by any one.

BOGARDUS & BROWN, for respondent.

I. The principal objection to the discharge is that it is invalid against a non-resident of this state. The precise point involved in the present case is whether the state courts of New York shall lend their aid in enforcing a contract to be performed in New York, in favor of a non-resident plaintiff, against a debtor duly discharged by the New York insolvent laws. This statement of the point of itself, excludes every case cited by the plaintiff under his point V (folio 110, case), as inapplicable. This is to be treated as a New York contract (see Cook agt. Maffit, 5 How. U. S. 295).

The case of Parkinson agt. Scoville (19 Wend. 150), is a case exactly in point in favor of the validity of the discharge. In Witt agt. Follett (2 Wend. 457), the contract was made and to be performed in Vermont. The case of

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Donnelly agt. Corbett (3 Seld. 500), though in some sentences uses language broad enough to cover this case, really does not apply, because the remedy was sought not in South Carolina, where the discharge was made, but in New York, and Justice GARDINER expressly recognizes the distinction. He says, at the outset, "such laws are valid so far as they affect the remedy" (p. 503), i. e., in the state courts where the discharge is granted, but we are not required, he says (see p. 506), "to give that law an extra territorial effect," which concedes as a matter of course, that in the South Carolina state courts the discharge would be held good as against the plaintiff.

We concede that the notes in suit could be prosecuted in Massachusetts or Pennsylvania, and the discharge could not be set up against them as a bar. The precise point here has never come up in this state except in Parkinson agt. Scoville (19 Wend. cited above), where the contract was to be performed here, and the discharge was held good.

In Massachusetts the precise point has also been decided in three different cases, exactly parallel-i. e, where the notes were expressly made payable in Massachusetts by a debtor there, though dated in another state, and the discharge was held good. (Burrill agt. Rice 5 Gray [Mass.], 539; Capers agt. Johnson, Id. note 539; Scribner agt. Fishers, 2 Gray [Mass.], 43.) These Massachusetts cases, with Parkinson agt. Scoville (cited above), ought to be deemed conclusive in this case. Donelly agt. Corbett (3 Seld.), does not pretend to overrule either; it simply decides what many other cases also decide, that a suit can be maintained in a state which did not grant the discharge-i. e., that the local law of that state has no extra territorial effect, and certainly does not require its enforcement. The local law of discharge takes away the remedy in the state courts of the state which granted the discharge, but does not operate in actions brought out of the state, as against non-residents. The case of Baldwin agt. Hale (p. 462, of June, 1864,

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number of Am. Law Reg. vol. 3, No. 8, new series), does not in any manner conflict with these views, and decides that "a certificate of discharge cannot be pleaded in bar of an action brought by a citizen of another state in the courts of the United States." It is true, "common justice requires that no man shall be condemned in his person or property without notice, and an opportunity to make his defence." The discharge of an insolvent does no such injustice to non-resident creditors. It does not deprive them of the right of action in courts of other states, but the courts of this state having jurisdiction of contracts to be performed in this state, have a right by the laws of the state, to discharge a citizen thereof from those contracts against all persons, so far as her jurisdiction extends, and no further.

II. We reply briefly to the other objections: Signature to affidavits not necessary, no statute requires it-good under the decisions. (Haff agt. Spicer, 3 Cai. 190; Colen, &c., 495; Jackson agt. Virgil, 3 Johns. 540.) Hathaway agt. Scott (11 Paige), to the contrary, relates merely to matters of practice in chancery, following a very old rule of chancery practice, having nothing to do with statute affidavits. The publication was sufficient. The cases cited by plaintiffs were altogether different from the present. Underwood (3 Cow. 59), the publication was but six weeks instead of ten, and the affidavit was of publication for six weeks only. Here the affidavit swears to ten weeks publication, and the date given afterwards, at most only introduces an ambiguity. The fact of ten weeks publication is conceded. No discharge was ever vacated on such a frivolous pretext. Besides, this objection ought probably to be taken on certiorari.

In re

Rusker agt. Sherman (28 Barb. 416), decided at general term, first district, opinion by INGRAHAM, J., declares (semble) that none of these objections can be taken collaterally, but only on certiorari; that upon original jurisdiction being