1801.

POTTER

against BROWN.

[127]

and enacted, that "
every such bankrupt should be dis
charged from all debts by him due, or owing at the time he
became bankrupt; and all which were or might have been
proved under the said commission." And it was further
enacted, that every person who should have, bona fide, gi-
ven credit to, or taken securities, payable at future days,
from persons who were, or should become bankrupts, not
due at the time such persons becoming bankrupts, should
be admitted to prove their debts and contracts, as if they
were payable presently. The defendant then averred, that
on the 22d of February 1802, while that act was in force,
he was a merchant residing at Baltimore, within the United
States of America, and actually using there the trade of
merchandise by buying and selling, and that he so residing
and exercising trade, &c. became indebted to one W. E.
in 1000 dollars, &c.; and that after the cause of action in
the 1st count mentioned accrued to the plaintiffs (the said
debt to W. E. being then due) the defendant became a
bankrupt within the meaning of the said act. And so the
plea proceeded to state the issuing of the commission of
bankrupt against him on the petition of W. E., in the manner
prescribed by the act; that the commissioners possessed them-
selves of all the defendant's estate and effects, and issued
the notice required to the bankrupt to surrender himself, and
to the creditors to come in and prove their debts; that the
defendant did surrender aud conform himself to the act;
that he was declared a bankrupt after the 1st of June
1800, and before the suing out of the commission; that
the creditors were by due notice required to prove their
debts, and to assent or dissent from his certificate; that his
certificate was afterwards signed by full two-thirds of the
creditors in number and value, for the purpose of his being
discharged from his debts, in pursuance of the act; and that
that certificate was duly allowed by the judge of the district.
The defendant then averred, that after the making of the
contract after mentioned, in pursuance of which the bill of
exchange in the first count mentioned was drawn, and also
before, at, and after the time of the defendant's drawing
that bill, and receiving the consideration after mentioned
for the same, the plaintiffs were merchants carrying on trade
in copartnership as well in the United States of America, to

wit, at Baltimore aforesaid, as in England, and having a house of trade in the U. S., to wit, at Baltimore aforesaid, where one of the plaintiffs (W. Page) then resided; and they so carrying on trade, and having a house of trade in the U. S., and one of them so residing there as uforesaid, they, before the defendant became a bankrupt, viz. on 2d September 1801, at Baltimore in the said U. S. contracted with the defendant to purchase of him such bill of exchange as in that count is mentioned, and then and there delivered to him in payment, and as a consideration for the same, divers promissory notes then and there in the said U. S. made by one R. D.: and thereupon, before the defendant became a bankrupt, viz. on 2d September 1801, at Baltimore in the said U. S., in pursuance of the last mentioned contract, and in consideration of the aforesaid promissory notes so to him delivered as aforesaid, the defendant made and drew the said bill of exchange in the first count mentioned, and delivered the same to the plaintiffs; and "that the said debt by the first count attempted to be recovered did not, nor did any part thereof accrue in this realm or elsewhere than ip the said U. S. in any other or different manner than this," that the said bill of exchange being drawn in the U. S. as aforesaid, was drawn upon a person in this realm, and was presented for acceptance in this realm, and was refused acceptance in this realm, viz. at London, &c. And the defendant further averred, that the said bill was presented for and refused acceptance, as in the said count mentioned, and the said sum in the said bill mentioned, became and was due and owing as aforesaid before the date or suing forth of the commission against the defendant, and before he became bankrupt as aforesaid; and that after the same sum so became due, and after the date and suing forth of the com mission, and while the same was in prosecution, and before the commencement of this action, viz. on 3d of March 1801, at Baltimore in the said U. S., the plaintiffs proved under the said commission as creditors of the defendant, taking the benefit of the said commission, the contents of the said bill of exchange, as a debt to them, and then due and owing from the defendant, they then and there being as such creditors entitled to prove the same as aforesaid, and H 2

to

1804.

POTTER

against BROWN.

[ 128 ]

1804.

POTTER against BROWN.

to take the benefit of the said commission as aforesaid, to wit, at, &c. concluding with a verification. To this there was a general demurrer and joinder.

T. Carr, in support of the demurrer. A certificate obtained by a bankrupt abroad under a commission issued by authority of the law of that country, cannot be pleaded in bar to an action here for a cause of action arising in this country for the law of a foreign state cannot bind the subjects of this country, nor abrogate a contract arising here. If indeed the cause of action must be taken to have arisen [129] in America, where the defendant obtained his certificate, the case cannot be distinguished from Ballantine v. Golding (a) the doctrine of which has been lately recognized in Smith v. Buchanan (b): but if it arose here, the last mentioned case is an authority in point that the foreign certificate is no bar; and the same principle is established by the case of Folliott v. Ogden (c). Now, 1st, The immediate cause of action arose in this country; for the cause of action is the assumpsit raised by law upon the legal liability of the defendant to pay the amount of the bill drawn by him, in consequence of the dishonour of the bill, which was in England. This is a right of action collateral to the bill itself, and did not exist in America before the non-acceptance of the bill, but arose on the dishonour of the bill; for which the drawer is suable immediately, without waiting for the time the bill had to run. Bright v. Purrier (d) Milford v. Mayor (e) and Ballingalls v. Gloster (f). 2dly, This, being a simple contract debt, follows the person of the creditor, and not of the debtor. But, 3dly, Supposing the right of action to be founded on the bill, yet that being a negotiable instrument in its nature, and, as it were, a visible chose in action, and being addressed for acceptance to a person in England, it may be said to have transferred the original debt in a peculiar manner from America to England, as if the contract had been originally made here: it was a contract by the drawer to pay the holder a sum of money in this country. Then the promise and the breach of it may both be said to (c) 1 H. Blac. 123.

(b) 1 East, 6.

(a) Co. Bankt. L. 515.
(d) London Sittings after Trin. Term, 1765, Bull. N. P. 269.

1804.

POTTER

against BROWN,

have happened here, and out of the jurisdiction of the U. S. In Burrows v. Jemino (a) the acceptance (on which the plaintiff was sued here) was at Leghorn, in which country* he had obtained his discharge: and in Ballantine v. Golding (b) the bill was drawn in Ireland, and payable *[130] by the defendant who resided there, where the discharge was. But in Robinson v. Bland (c) where a bill of exchange was drawn by Sir J. Bland at Paris upon himself in England (which bill being drawn for money won at play, was on that ground holden to be void) Lord Mansfietd said, "The law "of the place can never be the rule where the transaction ❝is entered into with an express view to the law of another "country. Here the payment is to be made in England; "it is an English security, and so intended by the parties." And the other Judges spoke to the same effect. The same rule will apply to this case: the plaintiff looked to English security, and required his debt to be made payable here. (The Court having expressed a clear opinion against him on this point, the other points were not urged.)

Jervis, contrà, was stopped by the Court.

"9

Lord ELLENBOROUGH, C. J. The rule was well laid down by Lord Mansfield in Ballantine v. Golding, that what is a discharge of a debt in the country where it was contracted, is a discharge of it everywhere. And that principle was recognized in Hunter v. Potts (d). Now this debt arose out of a contract in America. The debt was incurred there, for which the bill was given. The bill was drawn in America upon a person in England: but not have ing been accepted, the parties stood on their original rights, upon a contract made in America, for which a security was there agreed to be taken, upon the faith indeed that it would be accepted and paid in England; but of which there has been no performance: no English act has been done to alter the situation of the parties: even the notice of the non-performance, which is one of the circumstances on which the implied assumpsit is founded, must have been given in America, where the parties are stated to have resided when the

(a) 2 Stra. 733.

(b) M. 24 Geo. 3, B. R. Co. Bankt. L. 347. 1st. edit.

[131]

(c) 2 Burr. 1077.

(d) 4 Term Rep. 182.

H3

bill

1804.

POTTER against BROWN.

[132]

bill was given, and when the bankruptcy happened, and nothing appearing to shew that they ever changed their residence. Then if the bankruptcy and certificate would have been a discharge of the debt in America, which it clearly would, it must, by the comity of the law of nations, recognized in the cases I have mentioned, be the same here. It is in every day's experience to recognize the laws of foreign countries as binding on personal property; as in the sale of ships condemned as prize by the sentences of foreign courts; the succession to personal property by will or intestacy of the subjects of foreign countries. We always import together with their persons the existing relations of foreigners as between themselves, according to the laws of their respective countries; except indeed where those laws clash with the rights of our own subjects here, and one or other of the laws must necessarily give way, in which case our own is entitled to the preference. This having been long settled in principle, and laid up amongst our acknowledged rules of jurisprudence, it is needless to discuss it any further.

LAWRENCE, J. The question is, Whether the facts on which the plaintiff raises the implied promise did not occur in America? Now when the plaintiff agreed to take the bill in question, drawn by the defendant in America upon a person in England, the promise was in effect this, to pay the money in America if it were not paid here. Then the bill having been refused acceptance here, the implied promise to pay the money arose in America, and consequently the defendant's certificate is a bar to the demand.

The other Judges concurring,

Judgment for the Defendant.