
    THOMAS FISHER vs. DAVID H. STAYTON, Sheriff.
    Where a citizen of Pennsylvania had taken the benefit of the insolvent laws of that State, in respect of a debt contracted there, though with a citizen of Massachusetts, this court in the exercise of national comity, so far respected the judgment of the Pennsylvania court as to discharge the insolvent from imprisonment here on the same debt, though he had made an assignment in Pennsylvania which would be illegal here, as preferring creditors.
    Habeas coRp’üs. The sheriff produced the body, and made return that the defendant was in custody on a surrender by his special bail in an action of foreign attachment, at the suit of William Freeman, on which surrender he was committed by this court. To this return the defendant suggested that the debt to Freeman arose in Pennsylvania and was payable there; that Fisher was a citizen of Pennsylvania, in which State the defendant has since been regularly discharged under the insolvent laws of Pennsylvania, on malting an assignment of all his property for the benefit of his creditors. To this suggestion it was pleaded, that Freeman was not a citizen of Pennsylvania, but was a citizen of Massachusetts; that Fisher was not arrested in this suit by Freeman, but came voluntarily in and' entered bail in this action of foreign attachment, to dissolve that attachment and release his property; and being surrendered by his bail, his imprisonment must be deemed voluntary; and that the assignment of his property made by Fisher, previously to his discharge, was fraudulent and void, the same containing a preference of creditors, which is prohibited by our act of criminal insolvency.
    The petitioner had been twice discharged under the insolvent laws of Pennsylvania. The first discharge was in December, 1837, when he made an assignment to J. W. Corlies, preferring him; the second discharge was in July, 1838, when he made Freeman the assignee. On both occasions Freeman’s claim was returned amongst his debts. The debt accrued in Pennsylvania, on a bill of exchange, accepted there. (Story Covfi. Laws 286, 345.) After the first discharge, Freeman sued out a writ of foreign attachment in this court; to which Fisher put in special bail, and the plaintiff had judgment in April, 1839, for [.$3,352 50. A ca. sa. was issued and returned non est inventus; whereupon a scire facias issued against the bail, by whom the petitioner was subsequently surrendered.
    
      Frame, for Fisher.
    The question is, what effect -a discharge under the insolvent laws of Pennsylvania will have here. We contend that the courts of this State will recognize and give effect to the discharge in Pennsylvania, so far as to relieve the person of the insolvent from arrest here for a debt embraced in the Pennsylvania proceedings; especially if the debt be contracted in that State. The decisions have been such in the United States courts; in Pennsylvania, Maryland and Delaware. (Ingraham on Insolvency 176; 1 Peters’ C. C. Rep. 404, Read vs. Chapman; ib. 484; Ingrah. on Insol. 379-80, 177-8; ib. 138; 2 Yeales’ Rep. 533; 3 Bin. Rep. 201; 5 ib. 332; 1 Dallas 229, 294; 2 ib. 100.)
    The rule in Pennsylvania is to give effect to the discharge under insolvent laws of any other State that extends the same comity to them; the rule in the United States courts has the further qualification, that the debt shall have been contracted in the State where the discharge is had. The Pennsylvania rule applies to Delaware, (Ing. on Insot 194:) and to Maryland, (Gill & Jotins. 64; 1 Harr. & Johns. 101; ib. 156; 1 Harr. Rep. 367, Bailey vs. Seal; ib. 466, McGhnsey & Wolfe vs. Goldsmit & Goudkop.)
    
    This debt having been contracted in Pennsylvania, is subject to the laws of Pennsylvania, which have already discharged Fisher’s person from arrest from it; and we now claim his discharge on the same ground. What are the objections to this application. — 1st., fraud, not in reference to the Pennsylvania discharge, but as to other matters, not a part of the proceedings, such as an assignment in pais to J. W. Corlies,' preferring him, before the discharge. What has this to do with impeaching the proceedings of the court? If fraudulent, either as against our system of law, or even fraudulent in fact, it could not impair the discharge, though it would be void and such assignment convey nothing. As well might we look beyond the discharge to any other act of fraud as vitiating the discharge itself. In reference to the real estate in Delaware, I am free to admit that the assignment to Corlies is void, and Freeman could reach the property, notwithstanding such assignment; but this does not affect the discharge under the insolvent law of Pennsylvania. 2d. That the entry of special bail here, created an indebtedness in Delaware, which the discharge in Pennsylvania could not affect. This treats the matter as if this proceeding was by Fisher against his bail, claiming to be I discharged from him. Not so. The bail has been already discharged; j and no liability either to bail or to Freeman, arising on such entry j of special bail, is the subject of controversy here. If the Pennsylvania discharge be recognized at all, it must have the same effect as a discharge in our own courts; and no matter of fraud can be inquired into as invalidating it. (Ir/grah. Insol. 175; 1 Pet. C. C. Rep. 484; 1 Harr. Rep. 349.)
    
      Bates, contra.
    The decisions on this subject were conflicting until the cases .of Sturges vs. Crowningshield, of Ogden vs. Saunders, and of Boyle vs. Zacharie, in the Supreme Court of the United States, which settled the law in the U. States courts, and which are now being followed in all the State courts. (1 Peters’ Dig. 468, 471.) Previously to those decisions, the practice of a few States was to recognize such discharge, under certain circumstances. This was the practice in Pennsylvania, Maryland and Delaware. Other States have always refused to recognize them; particularly New York.
    The law is now settled, that a discharge under the insolvent laws of one State has no operation in another, unless both the parties were citizens of the discharging State, and the debt arose there. (12 Wheat. Rep. 213,'58; 6 Cond. Rep. 543, Ogden vs. Saunders.) A State has the right to pass insolvent laws, applicable to its own citizens; but not as against citizens of other States. (6 Peters 348, Boyle vs. Zacharie et al.) Freeman being a citizen of Massachusetts, was not bound by proceedings under the insolvent laws of Pennsylvania; he was not subject to the jurisdiction of their courts, and could not be drawn there even by a personal notice. (5 Mass. Rep. 509; 10 ib.’ 337; 8 Pick. Rep. 194; 13 Mass. Rep. 1; 1 Troub. SpHaly’s j Prac. 183.)
    The early cases were decided on loose notions of comity, and this accounts for the diversity of decisions; but the decisions in the Supreme Court of the U. States will control this comity, and all the [States are conforming to them.
    I Fisher was not followed into this State and arrested by Freeman;' ¡he voluntarily thrust himself here, entered special bail with a view to release the attachment which had fastened on his lands here, took Ihe benefit of the insolvent laws of Pennsylvania, on an assignment containing a preference, and therefore void here; and now claims that jhis court shall recognize the Pennsylvania discharge and release his fcerson, he having already released the land by surrendering his person.
    I If this assignment made in Pennsylvania, and on which Fisher look the benefit there, had been the basis of an application for the Benefit of our insolvent laws, it would have deprived him of the Benefit of such laws; yet this court is asked to extend a comity to a ■ischarge in Pennsylvania, which would have been illegal here, 
      (Story Coiifl. Laws 282-3, secs. 341-2.) The case of Bailey vs. Seal is not law; it was not argued.
    
      J. M. Clayton, on the same side.
    The proceeding on the habeas corpus has been l’esorted to in this case, instead of a motion to enter an exoneretur on the bail piece, or an application for the benefit of our insolvent laws; as affording the applicant a fuller relief than he could have under either of the other modes. The attempt then is to obtain for Mr. Fisher the benefit of our insolvent laws indirectly. Our act of assembly (Dig. 140,) makes any assignment preferring creditors void, and deprives the assignor of the benefit of any insolvent laws of this ¡State. The assignment in Pennsylvania contains a preference, and is void under our law. Does it make any difference that this assignment was made in Pennsylvania? Not at all. The act of assembly excludes all such assignments, wherever made, from operation here. Though valid there, it can have no effect as to property here. The assignment was designed to operate here. It was recorded here, with a view to give it validity as to the land here. If the place of making the assignment is to make it valid or invalid, it would be necessary only to go out of the State to evade the law of the State.
    It is apparent then, that after this assignment, Mr. Fisher, even ifl he could be discharged in Pennsylvania, could never have obtained! a discharge under our insolvent laws. Shall then, our courts by! comity give an effect to the Pennsylvania discharge, which it would! not have by our law, and which would be a violation of our law.l Comity is not to be exercised when it conflicts with the law of thel forum. (Story Confl. Lams 30.) We do not impeach the discharge! in Pennsylvania. We deny its effect here. It is brought hero bind lands here. Authority is claimed for it as a decision of a for-] eign court, and the appeal is to the comity of Delaware. But it is shown to be not only prejudicial to our own citizens, but in direefl violation of our statute law; and this prevents our courts from ex-1 tending the comity which would give effect to such a discharge berel It is said that Pennsylvania extends a like comity to us, and som<f early decisions are cited to show it; but it seems that since the decil sions in the Supreme Court of the United States, Pennsylvania i| changing her position on that subject. (Troub. & Holy’s Prac.I And no case has been shown where they have recognized a dischargl made here, which would have been illegal if made there. As to th! Delaware cases, in McGlensy & Wolf vs. Golclsmit & Goudkop, th! parties were all citizens of Pennsylvania, and the .decision was on that ground. In the case of Bailey vs. Seal’s bail, it does not appear but that both parties were citizens of New York; and the case was not argued. The point was not made. The cases were not cited. If the case goes to the length contended for it is against principle, and would not have been so decided, if formally argued and considered. (2 Kent’s Com. 393.)
    
      Mr. ¡Vales, in reply.
    If the argument on the other side be correct, Fisher has no relief. He is imprisoned for life. Pie never can have the benefit of the insolvent laws of this State; and this merely because he made an assignment in the common form in Pennsylvania, and one which has met the judicial sanction and approval of the courts of Pennsylvania. The application is for the discharge of the defendant’s person from imprisonment, on the ground of a previous discharge under the laws of Pennsylvania, where this debt originated. The question is not whether the debt is discharged, to which point most of the cases cited go, but it is of the remedy for enforcing the debt; whether the debtor is again liable to be imprisoned for this debt, after a discharge by the judgment of a court. The application for the benefit of the insolvent laws is a judicial proceeding; the discharge is a judgment of the court. Will this’court irespect such judgment and give effect to it? Why not? The case shows that the debtor was a citizen of Pennsylvania; that the debt arose and was contracted there; that the creditor, Freeman, was made a party to the proceedings under the insolvent laws of Pennsylvania, so far as notice '''could make him a party. The question then is, whether the discharge of the Court of Common Pleas of (Philadelphia, in that proceeding, does not exempt the person of the’ defendant from imprisonment in Delaware. This is a question to be Bedded by our own practice. The States of this Union are competent to adopt their own rule on this subject; it is conceded to be a rule of comity, and each State may fix its own rules for the application of this comity. Such a rule has been established in this State Ind in many others, in reference to the effect of insolvent discharges; ■hat one State will give effect to such discharges in another, so far is to exempt the party from arrest. (13 Mass. Rey. j, Blanchard Is. Russel.) The contract has reference to the law of the place here the contracting party lives.
    By the comity of nations the lex loci contractus will be held the w governing the case, unless such law controverts the law or policy of the forum, or would prejudice the rights or interests of their citizens. Now this discharge under the insolvent laws of Pennsylvania does neither. But if the assignment previous to the discharge were sought to be enforced here, it would be a very different matter, and the court would not sustain it, because such an assignment is prohibited by our law. Such was the decision in Maberry & Pollard vs. Shissler, (1 Harr. Rep. 349.) And this is just the distinction between the cases; and answers all the argument of Mr. Clayton. They have no ground of complaint against the assignment, which is void as to any operation here; and when Mr. Freeman proceeds against the property designed to be covered by it and not against his person, the validity of that assignment may be tried. The assignment and dischai’ge were lawful in Pennsylvania; the discharge a judgment of their court. As such judgment it must be respected or not; and we are not to go behind it and inquire into the legality of the proceedings. We take the discharge as it is; and the effect claimed for it; and which has heretofore been given to it by the decisions of this court, is to exempt the person of the insolvent from arrest hero for the same debt. It is not enough to say that these decisions are not I law. Have they shown any decision of any court in this State to the contrary. The assignment in Pennsylvania, even if before the court, | which it is not, is no violation of our law, unless it is to be enforced in l-espect of property here, or against our citizens: the policy! of our law which prohibits such assignments here, would prevent our! courts from extending that comity in relation to the assignment,! which it may well extend to the discharge of this defendant, under! the insolvent laws of Pennsylvania. Neither is Mr. Fisher claim-1 ing here any benefit of our insolvent laws; he only asks that this courn shall, in the exercise of the usual comity of States, give to the Penn-j sylvania discharge the same effect as to this debt here, which it has in Pennsylvania, where it was made.
    But it is argued that Fisher thrust himself into this State and wad not arrested here. The reply is, that his property was seized herd on a writ of foreign attachment which compelled, and the object ol which is, after all, to compel, an appearance. He was then in effecl arrested, as his appearance was compelled here, and he was after! wards arrested and imprisoned here by his bail. The question aftcl all is, what effect will this court give to a discharge of a debtor uil dor the insolvent laws of Pennsylvania, of which State he is a citj zen, and in which State the debt arose and was contracted; the credl tor being a citizen of Massachusetts. That question depends upon our own system and decisions. It has not been touched by any principle or case cited on the other side. Most of those cases, as that in 12 Wheat. Rep., have reference to discharges of the debt under bankrupt laws; and not to discharges of the person under insolvent laws. The decisions of the United States courts have been on different principles from those of the State courts, refusing to extend this principle of comity.
   The Chief Justice delivered the opinion of the court.

Bayab.d, Chief Justice:

A suit was instituted in the Superior Court for this county, by William Freeman, a citizen of the State of Massachusetts, against Thomas Fisher, a citizen of the State of Pennsylvania, by writ of foreign attachment returnable to October term, 1837. The attachment was dissolved by putting in special bail, and on the 26th of October, 1840, John Reed, the special bail, surrendered Fisher in open court, who was thereupon committed to the county jail. On the same day, Fisher applied to the court for a writ of habeas corpus, which was accordingly issued, directed to the sheriff, to bring up his body. ’The sheriff’s return states the facts of the institution of the original suit, the surrender of Fisher by his bail, and his commitment by the court.

Against this return, it is suggested on behalf of Fisher, that the cause of action on which - the suit was brought, was the acceptance of a bill of exchange, drawn upon him at Philadelphia, of which place he is a resident citizen, accepted there and payable there; and that since the acceptance and maturity of the bill, he has been discharged from imprisonment as regards this claim, by the Court of Common Pleas of the county of Philadelphia, under the insolvent laws of the State of Pennsylvania. Fisher claims to be discharged from imprisonment here, on the ground of a particular comity al-ledged to exist between this State and the State of Pennsylvania; the scope of which is to recognize in the judicial proceedings of each State, the validity of the discharge from imprisonment under their respective insolvent laws.

In answer to this suggestion, a variety of pleas are filed on behalf of Freeman, which it is not necessary to notice particularly, since the discharge of Fisher as stated being admitted, the matter must resolve itself into the simple question, whether such a particular comity exists between the two States. The case has been argued on behalf of Freeman, as if the discharge under the insolvent laws of Pennsylvania 'had been pleaded in bar to the recovery of the debt, and involved in its consequences, that provision of the constitution of the United States, which prohibits a State from passing a law impairing the obligation of contracts, instead of being an application for a mere discharge from imprisonment as part of the remedy furnished by the lex fori of this State.

No distinction can be more obvious or better settled than that between the obligation of a contract, and the remedy given by the Legislature to enforce it. “Imprisonment (says Marshall, C. J., in delivering the judgment of the Supreme Court in Sturges vs. Crowningshield, 4 Wheat. Rep. 200,) is no part of the contract, and simply to release the prisoner does not impair its obligation.” The same point is directly recognized and enforced in Mason vs. Haile, 12 Wheat. Rep. 378. Freeman, after the discharge of Fisher in Pennsylvania, was at liberty to sue him upon the same contract wherever he found him, but whether he would have a right to arrest bis person, would depend on the law of the particular forum where he sought to enforce it. Some States have abolished imprisonment for debt altogether, while others have retained it with qualifications. It is not pretended that the discharge in Pennsylvania, operated proprio vigore as a discharge here, but simply that the remedy of imprisonment, as part of the law of the forum in this State is regulated by the comity existing between the two States. It is true, that “the comity of nations” as a branch of international law, does not require that the discharge from imprisonment as part of the remedy of the forum in another State, should be regarded here; since no principle is better established than that the forms of remedies and modes of proceeding are to bo regulated by the laws of the place where the action is instituted. But a comity may exist between two or more States in this particular, which is an extension of the general law. The comity if it exists, is not the comity of the courts, but the comity of the States, “which (says Story) is administered and ascertained' in the same way and guarded by the same reasoning by which all other principles of municipal law are ascertained and guarded.” (Story Confl. of Laws, 37.) If the comity exists, we cannot look behind the proceedings of the Pennsylvania, court. And it matters not whether the parties were both citizens of the State of Pennsylvania at the time of the discharge, or whether they are citizens of this State at the.present time, since their rights in relation to the matter under consideration, must be regulated solely by the lex fori of this State in which-the suit is depending, and they can have no other or greater rights than citizens of the State generally.

Wales and Frame, for the petitioner.

Bates and Clayton, contra.

As to the fact of the existence of such q. comity between this State and the State of Pennsylvania, there cannot be a doubt. It is a matter of daily practice; has prevailed from the earliest period of their political existence; and is evidenced by the reports of judicial proceedings in each State. (McGlensey & Wolfe vs. McLean, 1 Harr. Rep. 466.) It had its origin no doubt in the soundest principles of policy, growing out of the fact that the States are conterminous; were subject originally to the same proprietary government; and were linked together by the strongest ties of social and commercial-intercourse. As this comity extends no farther in its enlargement of the general rules of the comity of nations, than merely to the discharge of the person from, imprisonment, there is nothing in such a measure which is repugnant to the law of this State. But as to that part of the insolvent laws of Pennsylvania, which permits a preference of particulur creditors in the assignment of the debtor’s property, it would of course be disregarded in the tribunals of this State, and such assignment so far as it affected property within this State, would be absolutely void, as repugnant to the act of assembly.

Thomas Fisher is discharged from the custody of the sheriff, upon payment of costs.  