
    Anson Kimberly et al. versus Theodore Ely William Ely versus The Same. Nehemiah Allen versus The Same.
    Where an insolvent debtor is discharged from his debts by virtue of an unconstitutional State bankrupt law, a creditor will not be considered to have assented to or ratified the discharge, notwithstanding he may have proved his debt under the commission and received a dividend, or have acted as one of the assignees.
    In an action by such creditor, any dividend received by him under the commission will be considered as a payment, pro tanto3 of his debt.
    Assumpsit on certain promissory notes made by the defendant to the plaintifs respectively, in the State of New York, previous to the 3d of April, 1811.
    In the first case (Kimberly et al. v. Ely) the defendant pleaded in bar a discharge, as an insolvent debtor, under a statute of insolvency passed April 3, 1811, by the legislature bf New York.
    This statute provides, that any insolvent debtor imprisoned on any civil process under the authority of that State, or who should be prosecuted in any court thereof, for debt or on contract express or implied, may petition the recorder of the city of New York, Albany or Hudson, that his estate may be assigned for the benefit of his creditors, and upon an exhibition of his debts, and of the property belonging to him and of debts due to him, may be allowed to assign the same as aforesaid, and thereupon may by the said recorder be for ever discharged from any debts due from him before that time, or any liabilities incurred or afterwards accruing on any pre-existing contract.
    The plea sets forth the various requisitions of the statute, and avers a performance by the defendant of every thing required to entitle him to the discharge, and makes profert of the certificate of discharge by the recorder of New York. It also states that the plaintiffs were transacting business in New York under the firm of Kimberly, Brace & Company, at the time of making the note, that the same became due on the 1st of May, 1810, and that the plaintiffs proved the debt under the commission and received a dividend
    
      
      Sept. 26th, 1827
    To this plea there was a general demurrer and joinder.
    The pleadings in the other cases were nearly similar. The plea in the case of Ely against Ely alleges that the contract was to be performed in New York, and that it was proved and allowed under the commission; but it does not aver that the plaintiff was an inhabitant of New York, nor that he received a dividend. In Allen et al. against Ely the plea states that the debt became payable after the passing of the statute, that the plaintiffs were inhabitants of New York, that they received a dividend, and that Allen was one of the assignees.
    
      Lathrop, Morris and Ashmun
    
    were of counsel for the plaintiffs ; G. Bliss and G. Bliss, junior, for the defendant. The argument was made with more particular reference to the case of Kimberly et al. against Ely.
    
      Jlshmun.
    
    In the case of Sturgis v. Crowninshield, 4
    Wheat. 122, this very statute was held to be inoperative and void as to debts existing prior to it; and the circumstances of proving a debt and receiving a dividend under the commission of insolvency cannot prejudice the plaintiffs’ rights ; these acts of theirs cannot confirm or make operative a statute which is unconstitutional and void ; nor are they estopped by any supposed assent; the statute is general and cannot be void as to the whole community and yet bind an individual. Co. Litt. 295; 1 Lill. Abr. 295; Beaumont's Case, 9 Co. Rep. 141; Shadwick v. Phillips, 3 Caines’s R. 129; Marbury v. Madison, 1 Cranch, 137; Holden v. James, 11 Mass. R. 396. The case stands, therefore, as if no such statute existed, and as if the recorder of New York had undertaken to give a discharge without authority of law ; the proceedings are wholly nugatory.
    In the next place, there is no averment in the plea, that the plaintiffs knew a discharge to have been intended ; and they are not bound to know it, but on the contrary had a right to presume such a provision to be void. For aught that appears, the plaintiffs had proved their debt and received a dividend before the discharge was granted, as they had a right to do ; and yet the defendant contends that they have ratified this discharge.
    
      But further ; the plaintiffs were not bound by such ratification, as it was made without consideration; this is a universal principle in all codes. Crawford v. Millspaugh, 13 Johns. R. 87; M'Lemore v. Powell, 12 Wheat. 557. Even payment of a part, with an express acknowledgment that it is for the whole, if not under seal, is not a discharge ; and this is the utmost that can be said in the present case. Richards v. Bartlet, 1 Leon. 19; Pinnel's Case, 5 Co. Rep 117; Cumber v. Wane, 1 Str. 426; Adams v. Tapling. 4 Mod. 88; Fitch v. Sutton, 5 East, 230; Steinman v. Magnus, 11 East, 390. This is the law of Massachusetts and of New York, which must govern the present case. Harrison v. Close, 2 Johns. R. 448; Watkinson v. Inglesby, 5 Johns. R. 386, 391; Dederick v. Leman, 9 Johns. R. 333.
    We contend further, that there was no express ratification ; and, if' any implied one, then it ought to be at least as strong as in the case of an infant’s contract. Thompson v. Lay, 4 Pick. 48, and the cases there cited as to infants. If an implied ratification can be here set up, it will be impossible to draw the line between what shall and what shall not be one ; it is for the defendant to show how the limits can be drawn ; as in Laidlaw v. Organ, 2 Wheat. 195.
    Again; if the defence is available, it is not properly pleaded; if it is an accord and satisfaction, or payment, it should be so stated. Johnson v. Carter, 16 Mass. R. 445; Monnington v. William, 1 Ventr. 109, per Twisden J.; Lade v. Baker, 2 Ventr. 149; Baker v. Lade, 3 Lev. 291; Challoner v. Davies, 1 Ld. Raym. 403; Fletcher v. Peck, 6 Cranch, 125.
    To constitute a valid ratification, it must be made by a party with a full knowledge of his rights. Messonnier v. Kauman, 3 Johns. Ch. R. 21, and Gray v. Murray, ibid. 188 ; and on such an issue the parties might go to a jury. The case of Hampshire v. Franklin, 16 Mass. R. 76, comes the nearest to the present case ; but the decision there was affected by an accidental omission in the act under which the action was brought; and the act was moreover a private one and assented to by the party, and there was also a consideration.
    
      The case of Ogden v. Saunders, 12 Wheat. 213, does not, in any part, interfere with the claim of the plaintiffs ; and see Shaw v. Robbins, in note, at the end of that case, p. 369. Had the plea alleged, that the contract was made after the statute, still it would have been bad in not averring the plaintiff to be an inhabitant of New York. In the present case it is alleged that the plaintiffs were “ transacting business ” in New York. The law now in question is entitled to the less respect, as it has already been overthrown by the Supreme Court of the United States ; and in the State of New York it has been condemned by one of their own judges, Chancellor Kent. Hicks v. Hotchkiss, 7 Johns. Ch. R. 304.
    
      G. Bliss, senior, for the defendant.
    The present case is not governed by any decision of the Supreme Court of the United States; and it must therefore be decided by the principles adopted by our own Court. It is not easy, indeed, to say how far the courts of the union have gone ; the case of Sturgis v. Crowninshield, 4 Wheat. 122, is considered by Mr. Justice Johnson, in Ogden v. Saunders, 12 Wheat. 272, as a compromise. There being, then, no bankrupt law of the United States, we contend —
    1. That the State of New York had a right to pass the statute in question, so far as it does not impair the obligation of contracts. Sturgis v. Crowninshield, 4 Wheat. 122; Ogden v. Saunders, 12 Wheat. 213, 357; Blanchard v. Russell, 13 Mass. R. 12, 16.
    2. The New York statute here specially pleaded, directs the effects of an insolvent to be distributed to pay his debts ; all who were creditors at its passing might elect to receive a dividend under it and relinquish further claims ; and future creditors must come in or be wholly barred. Such a law does not impair the obligation of contracts. Courts will support the statutes of a State, if it can by any sound construction be done. Barnes v. First Parish in Falmouth, 6 Mass. R. 417; Portland Bank v. Apthorp, 12 Mass. R. 252. There is nothing inconsistent with the spirit of this law so to consider it; and as to contracts made after the law, there can be no doubt in regard to citizens of the State. It is a general principle, that the acts of a State are binding on its citizens. Ogden v. 
      Saunders, 12 Wheat. 357; Touteng v. Hubbard, 3 Bos. & Pul. 291; Atkinson v. Ritchie, 10 East, 534; Mennett v. Bonham, 15 East, 477, and Flindt v. Scott, ibid. 525; Simeon v. Bazett, 2 Maule & Selw. 94; Power v. Whitmore, 4 Maule & Selw. 141; Consequa v. Fanning, 3 Johns. Ch. R. 598; Hicks v. Hotchkiss, 7 Johns. Ch. R. 308.
    For the construction of the terms “ impairing the obligation of a contract,” we refer to the case of Ogden v. Saunders already cited. The statute was held to be constitutional as to certain contracts, and the reverse as to others ; and we submit, that the gromid of difference was, that the creditor’s right to compel performance was (by a majority of the court) not considered to be destroyed in the former, but was in the latter. The right of one, who became a creditor before the law, to take a dividend, and the effect of so doing, were not examined in that case. All creditors have such a right, and nothing in the law prohibits it; and though a contract is to be executed according to its meaning under existing laws, yet if the creditor consents to vary from it, the obligation is not impaired. If in the present case, the substance of these proceedings had been inserted into the contract now sued, the creditor could not complain. The case of Mason v. Haile, 12 Wheat. 370, 380, goes much farther ; it declares a special insolvent act to be a lawful discharge. The maxims of law, volenti non jit injuria, consensus tollit errorem, and omnis ratihabitio retrotrahitur et mandata cequiparatur, are applicable ; the plaintiffs are bound by their own assent. The want of such assent is carefully noticed by the judges in the decisions against the insolvent laws ; M'Menomy v. Murray, 3 Johns. Ch. R. 435; Ogden v. Saunders, 12 Wheat. 262, 263, 272, 281, 285, 358, 364, 366, 342; Oakley v. Bank of Columbia, 4 Wheat. 235; Baker v. Wheaton, 5 Mass. R. 509; Watson v. Bourne, 10 Mass. R. 337.
    Again ; the plaintiffs have made an election of their remedy, by coming in under the commission of insolvency ; and in many cases, where a man has two remedies, by pursuing one he loses the other. Bacon’s Abr. (ed. Gwillim,) Appendix, tit. Election, A, 4 Hen. & Munf. 123 ; Co. Litt. 144 b-The proving of a debt under a commission is an election and as to the principle of election, generally, see the cases of Read v. Sowerby, 3 Maule & Selw. 78; Whistler v. Webster, 2 Ves. jun. 370; Wilson v. Lord Townshend, ibid. 695; Philpotts v Reed, 1 Brod. & Bingh. 294; Holmes v. Remsen, 20 Johns. R. 229, and 4 Johns. Ch. R. 460. There are many instances, by our laws, where a man is obliged to make his election ; as, in bankruptcy, when he has a pledge or mortgage ; in claims against a deceased insolvent, when he has either; so, if he has a pawn, he cannot hold it and attach at the same time. Cooke’s Bankr. Law, 119 ; Amory v. Francis, 16 Mass. R. 308; Com. Dig. tit. Bankr. 34. There are indeed, both in England and in this State, adjudged cases, where a bankrupt not having a discharge, his creditors are not bound; but they depend on the express necessity of a discharge by the words of the statutes. Lummus v. Fairfield, 5 Mass. R. 248; Whitney v. Crafts, 10 Mass. R. 23. In the case at bar, the defendant was actually discharged; the plaintiffs have ratified the proceedings, and they are bound at law as well as in equity. Aylett v. Harford, 2 W. Black. 1317. If a creditor elect a new security of his principal debtor, he discharges the surety ; and so, upon a voluntary composition, a creditor taking other security cannot enforce it. The decisions on this point extend to cases of insolvency as well as of bankruptcy. Lynch v. Reynolds, 16 Johns. R. 41; Cockshott v. Bennett, 2 T. R. 763; Jackson v. Lomas, 4 T. R. 166; Sumner v. Brady, 1 H. Black. 647; Leicester v. Rose, 4 East, 372; Jackson v. Davison, 4 Barn. & Ald. 691.
    The statute in question, and the proceedings under it, are not void but voidable ; and the plaintiffs have ratified them. This distinction is well established. Co. Litt. 171 b; Zouch v. Parsons, 3 Burr. 1794; Co. Litt. 214; Goodright v. Strahan, Cowp. 201. If, then, the plaintiffs themselves, who had the ex dusive right to object, have given their assent, this removes the only valid objection to the proceedings. If the plaintiffs’ action were brought in New York, it would be barred ; and the same judgment ought to be given in this court as there ; the law of the place of contract decides its nature, validity, construction and effect; as is settled in the standard work of Huberus, De Conflictu Leg. lib. i, tit. 3, cited in 3 Dallas, 370. This is clearly the law in New York; it has been uniformly acted upon in this Court. Mather v. Bush, 16 Johns. R. 250; Pearsall v. Dwight, 2 Mass. R. 84; Baker v. Wheaton, 5 Mass. R. 509; Greenwood v. Curtis (a very strong case, in illustration of the principle), 6 Mass. R. 358 ; Blanchard v. Russell, 13 Mass. R. 1; Cambridge v Lexington, 1 Pick. 506 In England, the rule is well established, Conway v. Gray, 10 East, 536, 539; Touteng v. Hublard, 3 Bos. & Pul. 291; Mennett v. Bonham, 15 East, 477; Flindt v. Scott, ibid. 525; Simeon v. Bazett, 2 Maule & Selw. 94; Power v. Whitmore, 4 Maule & Selw. 141. As a consequence of this principle, what is a good discharge of, or defence against a contract there, is the same everywhere ; Lodge v. Phelps, 1 Johns. Cas. 139; Bird v. Pierpont, 1 Johns. R. 119; Smith v. Smith, 2 Johns. R. 235 ; Ruggles v. Keeler, 3 Johns R. 263; Thompson v. Ketcham, 4 Johns. R. 285, and 8 Johns. R. 189; Sherrill v. Hopkins, 1 Cowen, 103; Van Raugh v. Van Arsdaln, 3 Caines’s R. 154; Hull v. Blake, 13 Mass. R. 153; Prentiss v. Savage, ibid. 20; Tappan v. Poor, 15 Mass. R. 419; Hicks v. Hotchkiss, 7 Johns. Ch. R. 297; Mather v. Bush, 16 Johns. R. 238. The same doctrine, we have supposed, is held by the courts of the United States ; Searight v. Calbraith, 4 Dallas, 325; Harrison v. Sterry, 5 Cranch, 289; Slacum v. Pomery, 6 Cranch, 221; Lanusse v. Barker, 3 Wheat. 101, 146.
    There seems, it is true, to be some uncertainty where the line is to be drawn between the cases relating to the remedy (which are governed by the lex fori) and those relating to the contracts, which are regulated by lex loci contractus. But though the rule cannot in all cases be accurately applied, it cannot reach the case at bar. The denid or discharge of all remedy cannot with any propriety be called a regulation of it, udess the poet’s principles can be applied, —
    
      Utor permisso;
    
    
      demo unum, demo etiam unum.
    
    The remarks in the closing opinion of the court in Ogden v. Saunders, as delivered by Johnson J., would lead us again to apprehend the same evils from the conflicting decisions of different States, which were felt before the adoption of the federal constitution, if the laws of New York cannot operate on a contract made in that State and to be performed there, beyond the jurisdiction of the State courts ; the removal of a party to the distance of one rod would completely change the liability. It was thought to be a great acquisition when the federal constitution brought into ex istence a controlling power, which did away local distinctions ; but with the greatest deference, it seems to us impossible to maintain the ground assumed in deciding the particular case of Ogden v. Saunders without overturning first principles. The cases cited do not, as we think, warrant the position there taken by the learned judge ; that of Harrison v. Sterry, 5 Cranch, 361, has but a remote relation to the subject ; and the cases decided by this Court are extended very much beyond their legitimate import; as, in Baker v. Wheaton, 5 Mass. R. 509, the principle of which, as laid down by Chief Justice Parsons, we agree to ; he says, if the promisee had not been a citizen of Rhode Island, the decision might have been different; but he does not assert that it would, if the contract had been made there ; and in Watson v. Bourne, 10 Mass. R. 337, from the observation of the Court it would seem, that the debtor could not.have availed himself of a discharge even in Rhode Island. In these remarks we are fully warranted by the observations of the Court in Blanchard v. Russell, 13 Mass. R. 10, 11. The English cases are numerous. Cooke’s Bankr. Law, 515; Smith v. Buchanan, 1 East, 4; Potter v. Brown, 5 East, 124; Male v. Roberts, 3 Esp. R. 163; Anon. 1 Bro Ch. R. 376. To the American cases already cited may be added Thompson v. Ketcham, 8 Johns. R. 189; Vermont State Bank v. Porter, 5 Day, 316; Bartsch v. Atwater, 1 Connect. R. 409. The judges of the United States, on their circuits, have held the same doctrine. Warder v. Arell, 2 Washington, 282, 295; Babcock v. Weston, 1 Gallison, 168; Van Reimsdyk v. Kane, ibid. 371; Green v. Sarmiento, 1 Peters’s Circ. Court R. 74; and the cases in the Supreme Court of the United States are not less decisive ; as, Harrison v. Sterry, 5 Cranch, 289; Slacum v Pomery, 
      6 Cranch, 221; Clarke’s Ex’ors v. Van Riemsdyk, 9 Cranch, 153; Lanusse v. Barker, 3 Wheat. 101, 146; M'Millan v. M'Neill, 4 Wheat. 209; Bank of Columbia v. Oakley, ibid. 235; Sebree v. Dorr, 9 Wheat. 558.
    The case of Ogden v. Saunders is to be held as binding only in those cases which are precisely similar. The case at bar differs from that in two very important features; the plaintiffs are citizens of New York, doing business there, and they have come in under the commission and sanctioned the proceedings. The case of Potter v. Brown, 5 East, 124, is in point and somewhat like the present. The only cases we have found, upon the effect of receiving a dividend, are one in Connecticut (3 Connect. R. 304), decided in 1820, soon after that of Sturgis v. Crowninshield; and a majority "of the court considered the case to be governed by that decision ; and one more recent, in New York, Bryar v. Willcocks, in which no intimation is given that the plea was not a valid one. 3 Cowen, 159, and the cases cited ; Field v. Howland, 17 Johns. R. 85; Ex parte Freeman, 4 Ves. 836; Grosvenor Ex parte, 14 Ves. 587.
    Two objections made to this plea require a particular an swer: 1. That it states the receipt of a less sum, after the debt became due, and therefore cannot be a legal bar Our answer is, that such receipt may be insufficient in assumpsit ; but our case is not one of accord and satisfaction merely, nor so pleaded ; the law of New York is first stated, then the proceedings up to the discharge, and, what is a very material fact, the assignment of all the debtor’s effects ; and also the plaintiffs’ assent to the proceedings, proving' their debt and taking a dividend. The case of Steinman v. Magnus, 11 East, 390, relied upon by the plaintiffs, is in our favor; the agreement there, though not under seal, was held to be binding, the party having “ lured in ” the surety and other creditors, to relinquish their further demands. See also Read v. Sowerby, 3 Maule & Selw. 78; Watkinson v. Inglesby, 5 Johns. R. 386; Heathcote v. Crookshanks, 2 T. R. 24; Cooling v. Noyes, 6 T. R. 264; particularly the remarks of Buller J. and Kenyon C. J. in the two last cases. We believe that no case can be found tc govern the case at bar ; those cited for the plaintiffs may be easily distinguished. The whole of that doctrine rests upon PinneVs Case, 5 Co. R. 117, and Co. Litt. 212 6, which was debt on bond, and payment of a less sum before the day was held a good plea ; but it is there said, that payment of a less sum at the day is no bar, though the delivery of a specific thing in satisfaction is good. See Adams v. Tapling, 4 Mod. 88; Com. Dig. Accord, A, where no distinction is made between covenant and assumpsit, in accord. In Fitch v. Sutton, 5 East, 230, there was an accord, but no satisfaction ; and the same thing, in Cumber v. Wane, 1 Str. 426, and Harrison v. Close, 2 Johns. R. 448. The eases of Johnston v. Brannan, 5 Johns. R. 268, — Seymour v. Minturn, 17 Johns. R. 169,— Wilson v. Finney, 13 Johns. R. 353,—Dederick v. Leman, 9 Johns. R. 333,— Buddicum v. Kirk, 3 Cranch, 293, — Kaye v. Waghorne, 1 Taunt. 428,—are to be understood as limited to their peculiar circumstances. This is apparent, from what has been already observed ; and from two other cases, Boyd v. Hitchcock, 20 Johns. R. 76, and Sheehy v. Mandeville, 6 Cranch, 253. We conclude, therefore, from the cases, that no technical rule prevents the parties from carrying their agreement into effect, as it was intended that the plaintiffs should be bound by their election.
    To the second objection made to the form of the plea we answer, first, that it is good on general demurrer. Heard v. Baskerville, Hob. 233; Slade v. Drake, ibid. 301; Bow-dell v. Parsons, 10 East, 359; Buckley v. Kenyon, ibid. 139; St. 1784, c. 29; St. 27 Eliz. c. 5; St. 4 Anne, c. 16; Bolton v. Bp. of Carlisle, 2 H. Black. 261; Collins v. Gibbs, 2 Burr. 899; Burland v. Tyler, 2 Ld. Raym. 1391; White v. Clever, ibid. 1416; Burgess v. Brazier, 1 Str. 594; 1 Salk. 219; Boyce v. Whitaker, 1 Doug. 94, and Jones v Barkley, ibid. 684. Our plea is therefore good, in substance ; and further, it is not defective in form. The body of it is transcribed from that in Sturgis v. Crowninshield, which has gone through the ordeal of judicial examination. The rule, that things should be pleaded according to their legal operation i'Bac. Abr. Pleas, I 7), prohibits pleading an instrument or any act in a way in which it cannot by law operate, though the parties may have treated it as such. Johnson v. Carter, 16 Mass. R. 443; Challoner v. Davies, 1 Ld. Raym. 403; Baker v. Lade, 3 Lev. 291, and 4 Mod. 149, and 2 Ventr 149; Moore v. Earl of Plymouth, 3 Barn. & Ald. 66. The case of Monnington v. William, cited in 2 Saund. 97 b, note, is much relied on to show that the present plea is bad. But see the report of the same case in T. Raym. 200 ; and it is to be noted, that this was before the statute of Anne ; and ir. Lade v. Baker, cited in the note to Saunders, an amendment had been made, which did not meet the case, and it was adjudged bad. The remarks of Serjeant Williams, who is himself no small authority, are to be taken in connexion with what he says at p. 96, note l,upon the word “ grant.” Lord Coke says, Co. Litt. 301 b, that the party has a right to apply the words dedi et concessi as he will : and Comyn professedly accords with him; Pleader, C 37. But if the rule as to deeds were even as strict as contended for, it ought not to govern transactions in pais ; at any rate this is but a defect in form, and good on general demurrer. As to the constitutional objection, we will only add, that we know a ratification will not make the law a different one ; but when the only objection is, that it is void as to these creditors, because it impairs the obligation of their contract, we submit, that it is a sufficient answer, that they, having taken the benefit of these proceedings, cannot now object to them.
    In respect to the case of Allen et al. v. Ely, the same and stronger objections lie against the plaintiffs’ recovering. The plaintiffs were citizens of New York, and one of them acted as assignee and certified the defendant’s assignment and conformity to the statute ; the debt accrued after the law passed and upon these pleadings, it is to be taken that the contract was made when the debt accrued, and not before.- In Blan chard v. Russell, above cited, the Court say, that as the ac count was liquidated after the act, the discharge was valid.
    In the remaining case now before the Court, Ely v. Ely, the circumstance of the plaintiff’s living in Connecticut and not having taken his dividend, can make no important differ ence ; his debt was to be governed by the law of New York, and the acts which he did under the commission sufficiently prov; his assent and will bind him.
    
      April term 1828
   The opinion of the Court was drawn up by

Parker C. J.

[After stating the pleadings in the first case.] There is no occasion to consider the general question of the validity of the statute under which the defendant claims to be discharged from this and all his other debts, nor to examine die character of this statute, which has been justly denounced by the highest judicial authorities of the Slate in which it was passed, as unwise, impolitic and unjust, and in truth as being a legislative violation of the most obvious and essential principles established and sanctioned by all civilized people for the security of property and the maintenance of honesty and good faith in the community.

The statute is wholly nugatory and void in relation to the contract sought to be enforced by this action, it being a palpable violation of the constitution of the United States, which expressly prohibits any State from enacting any law which shall impair the force and obligation of contracts. This Court has decided in the case of Blanchard v. Russell, 13 Mass. R. 1, that an insolvent law of any State can have no operation upon a pre-existing contract, and this principle has not been questioned by the Supreme Court of the United States, or any one judge thereof, in any of the cases which have come under the cognizance of that court.

The only question then, which has required consideration m this case, is, whether the plaintiffs by their acts, viz. coming in under the commission, proving their debts and receiving a dividend, great or small, (for the amount is not stated in the plea,) have given validity to a discharge otherwise void, that is, by assent to or ratification of the doings of the recorder under this void statute.

It has been argued that the proceedings are not void but voidable, and therefore may become valid by the consent or ratification of the party whose interests are affected. But an ict of the legislature which it has no constitutional right or power to pass, is a nullity, and all proceedings under it are void. The acts of individual citizens can give no force or effect to them. Besides, in the case presented by the plea, the proceedings of the plaintiffs ought to be considered as compulsory rather than voluntary, and therefore cannot amount to a ratificaron, if a void act could be ratified. The act was clothed with all the usual legislative sanctions. Citizens would not be prompt to suspect that the sovereign guardian authority of their country had abused or violated their trust. They see the property of their debtor sequestrated, and are threatened with the loss of the whole unless they take measures to preserve a part. They are under a moral duress, and ought not to be held to have aided in raising the storm, merely because they try to save something from the wreck.

By the statute then considered in force in New York all the property of the debtor was sequestered, so that it could not in any way be reached by writ or execution. The debtor was to be discharged from all his debts on his own application without the consent of any of his creditors. The presumption is always in favor of legislative acts clothed with the forms prescribed by the constitution. The creditor sees that the property is all to be distributed ; and according to the tenor and terms of the law, unless he takes a share he can never get any thing. He does not know that the act is void, and ignorance under such circumstances will relieve him from the effect of acts which might otherwise be evidence of assent, for he is ignorant only of what the legislature itself must charitably be presumed to have been ignorant, viz. that in passing the act they were acting wholly without authority.

It is argued that every citizen or subject is presumed to as sent to the laws of his own government, in regard to the sub jects of other governments. This is a just and necessary principle, but it does not apply to the case, for here there was no law to assent to, and it is not the right of a citizen of another government which is in question, but the controversy is between two subjects of the same government; or if the plaintiffs were not citizens of New York, then this principle of assent does not apply at all.

It is said that by a decision of this Court, it was held that a citizen of Rhode Island was bound by the laws of that State, wiien a citizen of another State might not he so bound. T.< ue ; but the Court is speaking of laws, and not of unauthorized acts ; and the question was only of such laws as had force w thin, but not without the territory where they were made. The right of the legislature of Rhode Island to make such a law was not drawn in question ; it was made long before the contract to which in that case it was applied. The case in 10 Mass. R. 337, recognises no other principle. But it is said the plaintiffs have elected to take their dividend. An election under such circumstances, it has been shown, is not binding. Nothing short of a discharge given by the plaintiffs could annihilate their claim, and indeed it seems very clear that by the general laws of New York, unless there were a discharge under seal amounting to a release, payment of less than the whole debt cannot be pleaded or given in evidence as a satisfaction and discharge of a contract.

In England one who proves his debt under a commission of bankruptcy may, on petition to the lord chancellor, be allowed to withdraw his claim and proceed at law. And this may be done even by one who is chosen assignee. Ex parte Williamson, 1 Atk. 83; Ex parte Lindsey, ibid. 220; Ex parte Ward, ibid. 153; Ex parte Salkeld, 1 P. Wms. 562. Probably not so after receiving his dividend ; but these are cases where there is a valid commission of bankruptcy. The case before us is where it is invalid. A creditor has not the means of knowing what was the evidence on which the party was declared a bankrupt, and by proving his debt he at most gives credrt to the petitioning creditor, and the commissioners, that the former has not sued out a commission, nor the latter declared the party bankrupt, without proper grounds ; and it is not reasonable that he should be put to the dilemma of being barred by a certificate, or of being taken to have admitted that every act necessary to support the commission really existed. 2 Stark. Ev. 33; Rankin v. Horner, 16 East, 191; Collins v. Forbes, 3 T. R. 322. A commission of bankruptcy in England is involuntary against the bankrupt. It is a suit by one creditor for the benefit of all, and the property is forcibly taken for the purpose of distribution. In the case' before us the whole proceedings are at the instigation of the. debtor. His assignment is voluntary, and his purpose is to defeat his creditors of their claims. There may then be good reason in that country for inferring assent from facts which will not admit of the same inference here. We think for these reasons the facts set forth in the plea are no bar to the action. The defendant may have the benefit under the general issue of any dividends which may have been received by the plaintiffs ; they will be construed to be payment pro tanto.

We see nothing to distinguish the several cases or to take either of them out of the principle of this decision. The contracts were all made before the passing of the statute, and whether the debts became payable before or afterwards can make no difference. Whether a dividend has been received or not, makes no difference ; nor that the plaintiff in one of the cases was chosen and acted as assignee. For the reasons before given, no assent can be inferred from any acts done under a statute which is altogether void and inoperative. 
      
       See Pitkin v. Thompson, 13 Pick. 64; Blake v. Williams, ante, 306 • 2 Kent’s Comm. (3d ed.) 392, 393.
     
      
       See 2 Kent’s Comm. (3d ed.) 393, note a.
      
     