
    John M. Prentiss and Another versus William H. Savage.
    A temporary insolvent law of a foreign country, by which debtors were released from all demands against them, on surrendering their effects for the benefit of their creditors, and the same effects- were to be distributed only among such creditors as should apply within thirty days after public notice of such surrender, was holden not to have been intended to operate beyond the jurisdiction of the government where it was made, and to have no respect to such debts as might be due to persons living in other countries.
    Assumpsit by the indorsees against the drawer of a Bill ot Exchange.
    The action was submitted to the determination of the Court, upon the following facts agreed by the parties, namely. The bill set forth in ttie declaration was drawn in the island of Jamaica, on the 29th of August, 1811, by the defendant, a citizen of this Commonwealth (who had been resident in Jamaica for fifteen years previous to this transaction, doing business as a merchant), payable to W. Torrey, an American citizen, then being at Jamaica, but never an inhabitant thereof, upon John Ferrers of the city of New York. The bill was duly transferred, within the United States, to the plaintiffs, American citizens, and never * having been inhabitants of Jamaica. On the 4th of January, 1812, the bill was duly protested at New York, for want of funds of the defendant in the hands of the drawee.
    On the 29th of November, 1809, an Act or Law was made by the government of the island of Jamaica, entitled “ An Act for the relief of insolvent debtors, imprisoned for debt ” ; a copy of which Act came up in the case. By the several provisions thereof, any person, imprisoned for debt in the island, was entitled to be “ for ever released and discharged from his imprisonment and debts,” upon subscribing, in open Court, a schedule of his effects and credits, and delivering the same to the provost-marshal, and taking a certain oath prescribed in the Act. The said effects were then to be assigned by the Court to some creditor or creditors of the insolvent person ; whose duty it was made to divide the same, or the proceeds thereof, among such of the creditors of such prisoner as should, within one month after notice of such dividend, in certain public papers in the Act mentioned, produce the legal evidence of their demands. The Act was to continue in force until the end of the year 1812.
    The defendant, in August, 1812, having complied with the requisitions of the said Act, was permitted to take the benefit of it, and was discharged from his imprisonment and debts, as was therein provided; after which he returned into this State, and this suit was instituted against him.
    The plaintiffs never took any measures for the recovery of this demand in Jamaica ; nor had they been parties, or any way or manner assented, to the proceedings under the Act aforesaid; or claimed or received any benefit therefrom ; or had any knowledge thereof, until after the commencement of this suit.
    The defendant, since his return to this country, acknowledged the debt, and said that it ought to be paid ; but that he was then unable to discharge it.
    If the Court should be of opinion, that the discharge, * obtained by the defendant pursuant to the Act aforesaid, is a sufficient bar to this action, the plaintiffs were to become nonsuit; otherwise the defendant was to be defaulted.
    The cause was argued, at the last March term in this county, by Sohier, for the plaintiffs, and Prescott, for the defendant.
    
      Sohier contended,
    that the contract of the defendant had the same properties and effect -by the laws of Jamaica, where it was entered into, as here ; and, as to the methods by which it was enforced, the lex loci does not apply. 
    
    If it be said, that the contract was to be fulfilled in New York, and, therefore, that the laws of that State are to govern, then the plaintiffs are not barred. 
    
    But a new contract was made in the United States, when the bill of exchange was indorsed to the plaintiffs, by the payees ; and neither of these parties can be presumed to have had reference to the law of Jamaica. The effect of the law relied on by the defendant is, to exclude every creditor not resident in the island, or not having an agent there, from all benefit of it. The reasonable construction of it then is, that its operation was intended by its makers to be confined to the island only, and not to affect foreign creditors. 
    
    Whatever might have been the effect of the supposed discharge iri Jamaica, the defendant’s posterior acknowledgment and undertaking to pay the debt entirely supersede it. 
    
    
      Prescott.
    
    The drawer and payee of this fill were both resident m Jamaica at the time of the original transaction ; and the promise of the defendant, the drawer, was not, to pay the money in New York, or at any other place than Jamaica, in case the bill was dishonored and returned to him there. It was, then, a contract made wholly with reference to the laws of that island, and, among the rest, to this statute, under which the defendant now claims to be discharged. He has surrendered all his effects for the * benefit of his creditors ; and the plaintiffs were bound to apply for a dividend of those effects, if they would derive any advantage from their demand. 
    
    
      
       5 Cranch's Rep. 289. — 1 Caines, 402. — 2 Burr, 1079. 1 B. & P. 139. — 2 Muss. Rep. 84. 8 D. & E. 609.
    
    
      
       2 Johns. 235.
    
    
      
       1 East's Rep. 6.— 5 East, 124 — 2 Dall. 256 —1 Dall. 188. —7 Johns. 117. — 3 Caines, 154.—3 Dall. 369. — 1 Mass. Rep. 198. — 5 Mass. Rep. 509.— 10 Mass Rep. 337.
    
    
      
      
        Cowp. 544. — 2 H. Black. 116.
    
    
      
      15) 1 Dall. 228. — 3 Binney, 201
    
   The cause stood over for advisement, and at this term the opinion of the Court was delivered by

Parker, C. J.

It seems to be an undisputed doctrine with respect to personal contracts, that the law of the place where they are made shall govern in their construction ; except when made with a view to performance in some other country, and then the law of such country is to prevail. This is nothing more than common sense and sound justice, adopting the probable intent of the parties as to the rule of construction. For, when a citizen of this country enters into a contract in another, with a citizen or subject thereof, and the contract is intended to be there performed, it is reasonable to presume that both parties had regard to the law of the place where they were, and that the contract was shaped accordingly. And it is also to be presumed, when the contract is to be executed in any other country than that in which it is made, that the parties take into their consideration the law of such foreign. country. This latter branch of the rule, if not so obviously founded upon the intention of the parties as the former, is equally well settled as a principle in the law of contracts.

This general rule applies, however, only to the construction of contracts ; although it has been held, in some cases decided in England as well as in this country, as a necessary inference from the rule, or at least as an independent principle equally essential in the law of contracts, that, whatever amounts to a legal discharge of a contract in the country where it is made, shall operate as a discharge everywhere ; unless it is manifest, from the contract itself, that it is to be executed jn another country.

This rule must, however, from its very nature, be qualified and restrained ; for it cannot be admitted, as a principle of law or justice, that, when a valid personal contract *is made, which follows the person of the creditor, and may be enforced in any foreign jurisdiction, that mode of discharge manifestly partial or unjust, and tending to deprive a foreign creditor of his debt, while he is excluded from a participation with the domestic creditors in the effects of the debtor, should have force in any country, to the prejudice of their own citizens. The comity of nations does not require it, and the fair principles of a contract would be violated by it.

Thus, if a citizen of this State, being in a foreign country, should, for a valuable consideration, receive a promise to pay money, or to perform any other valuable engagement, from a subject of that country ; and the law should provide for a discharge from all debts upon surrender of effects, without any notice which could by possibility reach creditors out of the country where such a law should exist; we apprehend that the contract ought to be enforced here, notwithstanding a discharge obtained under such law. For, although the creditor is to be presumed to know the laws of the place where he obtains his contract, yet that presumption is founded upon another; which is, that those laws are not palpably partial and unjust, and calculated' to protect the creditors at home at the expense of those who are abroad Such laws would come within the well known exception to the rules of comity, namely, that the laws, which are to be admitted in the tribunals of a country where they are not made, are not to be injurious to the state, or the citizens of the state, where they are so received.

Upon these principles we have considered the law of Jamaica, upon which the defence in the case at bar is founded ; and we are satisfied, that, admitting the legal effect of the drawing of this bill by the defendant, payable in JVew York, to be a contract by him to pay m Jamaica, if it should be dishonored ; yet, as it was a contract made wnh a citizen of this country, it cannot be discharged here under that law. For, on examination of the law, it appears that only thirty days’ notice of the process, by * which die discharge was obtained, was required to be given, before the debtor might be finally discharged by the judge ; and that no creditor could share in the distribution of the debtor’s effects, unless his claim was presented and proved there within a month from that discharge ; a time, which would not allow creditors living here any opportunity to object to the discharge of the debtor, or to obtain any satisfaction of any part of their debts, under the commission of insolvency.

If this law was intended to operate upon creditors without the jurisdiction of the island, it is manifestly partial and contrary to fair dealing; and no people could hold intercourse with a government which recognized such principles, or with its subjects, without insist ing upon immediate payment for any article sold them, or being obliged to maintain an agent there, to watch the movements of those to whom they may have been obliged to give credit.

• But we think it very clear, that the law was not intended to operate beyond the jurisdiction of the government where it was made, and that it has no respect at all to such debts as may be due to persons living in foreign countries.

Besides the circumstances, before mentioned, of the shortness of time allowed the creditors to object to the process, or to present their claims, it appears, that the principal object of the Act was, to relieve persons who were imprisoned for debt; and, although the provision seems to be general, that debtors imprisoned shall be released from their debts, a fair construction of the Act would seem to limit its operation to those debts for which the debtor was actually imprisoned. It is very similar to an Act of our own, by which insolvent debtors may be liberated from prison as to the debt for which they were placed there ; although all other debts remain in force against them as before.

But, whether this be a true construction of the Act or not, it being a temporary provision, continuing in * existence for three years only, and predicated upon the inconvenience of keeping persons in confinement for debt, we think it may be inferred, that it was intended to reach those debts only which existed within the jurisdiction, or those, the payment of which should be sought for there ; and not to foreign tribunals, where the creditor may be seeking his remedy according to the tenor and effect of his contract. If it should be necessary to enforce a judgment obtained here in the courts of Jamaica, they must settle the question there as to the law of the place where the contract was made ; but there is no necessity, from any acknowledged principles of municipal or public law, to intercept the creditor from his judgment here on the contract.

A discharge, under a.general system of bankrupt law of any country, which should contain fair and equal provisions for all creditors, would be entitled to much more consideration than these partial and temporary insolvent laws, which are made for the immediate relief of the debtor, probably without a view to any creditors who are not at hand to take advantage of the provisions made for their benefit.

Defendant defaulted.

[Boston Type & Stereotype Foundery vs. Wallack, 8 Pick. 186. — Braynard vs. Marshall, 8 Pick 194. — Ed.] 
      
      
        Stat. 1787, c. 29.
     