Duncan v. Darst et al. insolvent, by the Court of Common Pleas of York county; then it might have been a question properly made before the Circuit Court of the United States, whether he should be discharged from imprisonment. But as such a motion would have called into exercise the legal discretion of the court upon a mixed question of law and fact; it can be affirmed with something like safety, that the merely giving a bond to appear before the insolvent court, would not have been sufficient to authorize his release from imprisonment. Be this as it may, that court alone had jurisdiction to act in the matter. It is insisted for the defendant in error, that the act of Congress of 1800, c. 4, for the relief of persons imprisoned for debt, is the only law by which a discharge can be had, from a ca. sa., awarded by a court of the United States. We do not think so. By that law, the district judges are authorized by themselves, or through commissioners appointed for the purpose, to discharge the debtor: he must show, and swear, that he is not worth thirty dollars; and give notice to the execution creditor, before a discharge can be ordered. The debtor may have, and usually has, outstanding claims to choses in action, and interests in property of various kinds; perhaps contingent, and remote; probably of little value, or it might turn out they are of much value: and as he has to swear, that he has no estate real or personal, in possession, reversion, or remainder, to the amount or value of thirty dollars, it will often happen the oath cannot be taken, by the most honest and conscientious debtor. The consequence is, he must remain in prison until the humanity of the creditor interposes: and as he usually resides at a distance, cases of the greatest hardship and distress may occur, if the state laws afford no additional remedy. Whereas, by the laws of some of the states, he may give bond and security, when the process issues from a state court, to the sheriff, to appear at the return term of the writ, and give in a schedule of his property; the title and possession of which are conferred on the sheriff for the benefit of the execution creditor; and the proceeds are applied to the satisfaction of the judgment: and then the debtor is permitted to take the insolvent oath, and be discharged. As the marshals and courts of the United States, are necessarily governed by the same rules that the sheriffs and courts of the Duncan v. Darst et al. respective states are, in this respect, they must proceed in the same manner. So there are other modes of discharge prescribed by the state laws, that can be executed just as conveniently and properly, by the federal courts and judges, as they can be by the state courts or judges, in cases where the execution issues from the latter courts. State laws of this description have been adopted by the acts of Congress, as incident to the remedy: they are cumulative, and in addition to the act of Congress of 1800; both being in force. As we have adopted in effect the same construction, where property had been levied on, in Amis v. Smith, 16 Peters, 312, it would be harsh to hold otherwise, in restraint of personal liberty. In that case, a forthcoming bond, for property levied on, had been taken by the marshal, and the property been released according to the laws of Mississippi; the statute of that state, authorizing such a bond and the release of the property. This mode of proceeding was held to be incident to the process of execution, because it had been adopted by the act of Congress of 1828: previously, no delivery bond could have been taken, nor the property released by the marshal. If bond and security could be taken for the delivery of property seized; the same could not be refused, for the appearance at court of the defendant; conditioned that he give in a schedule of his property, and take the benefit of the insolvent laws; when the statutes of the state where the proceeding was had, expressly commanded it to be done in like cases, under process issued from the state courts, directed to their officers. We think the judgment of the Circuit Court upon the demurrer was correct, and order it to be affirmed. ORDER. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the eastern district of Pennsylvania, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be and the same is hereby affirmed, with costs and damages at the rate of 6 per centum per annum. ARTHUR BRONSON, COMPLAINANT, v. JOHN H. KINZIE AND JULIETTE A., HIS WIFE, EDMUND K. BUSSING AND JOHN S. BUSSING, THe PreSIDENT, DIRECTORS, AND COMPANY OF THE STATE BANK OF ILLINOIS, JAY HATHWAY, MARY ANN WOLCOTT, Daniel S. Griswold, CAROLINE DUNHAM, AND ALONZO HUNTINGTON, DEFENDANTS. A state law, passed subsequently to the execution of a mortgage, which declares that the equitable estate of the mortgagor shall not be extinguished for twelve months after a sale under a decree in chancery, and which prevents any sale unless two-thirds of the amount at which the property has been valued by appraisers shall be bid therefor, is within the clause of the tenth section of the first article of the Constitution of the United States, which prohibits a state from passing a law impairing the obligation of contracts. Mr. Chief Justice TANEY delivered the opinion of the court. THIS case comes before the court upon a division of opinion in the Circuit Court of the United States for the district of Illinois, upon certain questions which arose in the case, and which have been certified to this court according to the act of Congress. It appears from the record, that, on the 13th of July, 1838, John H. Kinzie executed a bond to Arthur Bronson, conditioned for the payment of $4000, on the 1st of July, 1842, with interest thereon, to be paid semi-annually; and, in order to secure the payment of the said sum of money and interest, Kinzie and wife, on the same day, conveyed to the said Bronson, in fee simple, by way of mortgage, one undivided half part of certain houses and lots in the town of Chicago, with the usual proviso that the deed should be null and void if the said principal and interest were duly paid; and Kinzie, among other things, covenanted that, if default should be made in the payment of the principal or interest, or any part thereof, it should be lawful for Bronson or his representatives to enter upon and sell the mortgaged premises at public auction, and, as attorney of Kinzie and wife, to convey the same to the purchaser; and out of the moneys arising from such sale, to retain the amount that might then be due him on the aforesaid bond, with the costs and charges of sale, rendering the overplus, if any, to Kinzie. The interest not having been paid, Bronson, on the 27th of Bronson v. Kinzie et al. March, 1841, filed his bill to foreclose the mortgage. In the mean time, after the mortgage was made, and before the bill was filed, the legislature of Illinois, on the 19th of February, 1841, passed a law, the 8th section of which provided that mortgagors and judgment creditors should have the same right to redeem mortgaged premises sold by the decree of a court of chancery, that had been given to the debtors and judgment creditors by a previous law passed in 1825, in cases where lands were sold under execution. The law of 1825 authorized the party whose lands should be sold by execution, after that law took effect, to redeem them within twelve months from the day of sale, by repaying the purchase-money with interest at the rate of 10 per cent.; and if the debtor did not redeem it within the time limited, any judgment creditor was authorized to do so upon the like terms, within fifteen months from the sale. This act, which took effect on the 1st of May, 1825, was held, it seems, not to extend to sales of mortgaged premises under a decree of foreclosure; and the act of February 19, 1841, above mentioned, was passed to embrace them. By another act of the legislature of Illinois, approved the 27th of February, 1841, it was directed that, "when any execution should be issued out of any of the courts of the state, and be levied on any property, real or personal, or both, it should be the duty of the officer levying such execution to summon three householders of the proper county, one of whom should be chosen by such officer, one by the plaintiff, and one by the defendant in the execution; or, in default of the parties making such choice, the officer should choose for them; which householders, after being duly sworn by such officer so to do, should fairly and impartially value the property upon which such execution was levied, having reference to its cash value; and that they should endorse the valuation thereof upon the execution, or upon a piece of paper thereunto attached, signed by them; and when such property should be offered for sale, it should not be struck off, unless twothirds of the amount of such valuation should be bid therefor." It further provided, among other things, that all sales of mortgaged property should be made according to the provisions of that act, whether the foreclosure of said mortgage was by judgment at law or decree in chancery. It also directed that the pro Bronson v. Kinzie et al. visions of this law should extend to all judgments rendered prior to the 1st of May, 1841, and to all judgments that might be rendered on any contract or cause of action accruing prior to that day, and not to any other judgments than as before specified. These are, in substance, the provisions of these acts, as far as they are material to the present controversy. On the 19th of June, 1841, after the laws above mentioned had been passed, the Circuit Court of the United States for the district of Illinois adopted the following rules: "Ordered, that when the marshal shall levy an execution upon real estate, he shall have it appraised and sold under the provisions of the law of this state, entitled 'An act regulating the sale of property,' approved February 27, 1841, if the case come within the provisions of that law; and any two or three householders selected under the law, agreeing, may make the valuation of the premises required. "Before the sale of any real estate on execution, the marshal shall give notice thirty days in a newspaper published in the county where the land lies; and if there be no paper published in the county, then the notice shall be given thirty days before the sale, by notice, as the statute requires. The court adopt the 8th section of the act of this state, to amend the act concerning judgments, &c., passed 19th of February, 1841, which regulates the sale of mortgaged premises, &c., except where special direction shall be given in the decree of sale." After these rules were adopted-that is to say, at December term, 1841-the bill filed by Bronson, as hereinbefore mentioned, came on for final hearing in the Circuit Court; and thereupon the complainant moved the court for a final decree of strict foreclosure of said mortgage, or that the mortgaged premises should be sold to the highest bidder, without being subject to said rule and the act referred to. This motion was resisted on part of defendants, who moved that the decree should direct the sale according to said rule and act. And the judges being opposed in opinion on the following points, to wit: 1. Whether the decree in this case should be so entered as to direct the sale of the said mortgaged premises according to the said statute of the state of Illinois above mentioned; or whether VOL. I.-40 2 D |