5 How. 295–316

Notes on U. S. Reports.


and n., collecting and reviewing cases, holding accommodation acceptor has no claim for contribution against subsequent accommodation indorser.

Bills and notes. Where it is implied by law that one not party to a note, who signs on back thereof, does so as surety or guarantor, parol testimony, not contrary thereto, as to object of signing is admissible; but where no such inference exists, it is doubtful whether such proof is competent; and in England person so signing bill of exchange, is treated as a new drawer, pp. 292, 293.

Cited in Sohier v. Merril, 3 Wood. & M. 183, F. C. 13,158, as collecting cases, to point that one not party to note became co-maker by subsequent signing.

Miscellaneous.- Cited in Whittenton Mfg. Co. v. Memphis, etc., Packet Co., 19 Fed. 281, requiring action at law, removed from State court, where it had been conducted under forms of equity procedure, to be repleaded.

5 How. 295, 12 L. 159, INNERARITY v. BYRNE.

Writ of error.- A citation is not necessarily a part of the record, and the fact of its having been issued and served may be proved aliunde, p. 295.

Cited and principle followed in Hudgins v. Kemp, 18 How. 537, 15 L. 514, holding want of record evidence that appeal was prayed, no ground for dismissal; Otis v. The Rio Grande, 1 Woods, 597, F. C. 10,614, reviewing cases where fact of appeal was shown by evidence not in the record. See also Peaslee v. Peaslee, 147 Mass. 180, 17 N. E. 514, holding under statute providing for making de crees of divorce nisi, absolute, notice of application therefor unnecessary.

5 How. 295-316, 12 L. 159, COOK v. MOFFAT.

Conflict of laws.- Notes executed in Baltimore, but delivered in New York, in payment of goods purchased there, are payable in New York, and governed by its laws, p. 307.

Cited and principle applied in Supervisors v. Galbraith, 99 U. S. 218, 25 L. 411, reviewing cases, holding bonds payable in New York governed by New York laws; Buchanan v. Drovers' National Bank, 55 Fed. 228, 6 U. S. App. 566, reviewing cases, holding note made in Tennessee to resident of Illinois, where payable and negotiated, governed by Illinois usury laws; Cæsar v. Capell, 83 Fed. 418, collecting cases, holding contract, expressly made a Missouri contract and payable there, governed by Missouri laws; Gay v. Rainey, 89 Ill. 225, 31 Am. Rep. 78, holding note governed by laws of State where indorsed and negotiated; Hart v. Wills, 52 Iowa, 58, 35 Am. Rep. 256, holding note partly executed in Missouri and partly exe

cuted and delivered in Iowa, governed by Iowa laws; Evans v. Sprigg, 2 Md. 466, holding note given by Marylander to citizen of District of Columbia for goods purchased, was a District contract; Overton v. Bolton, 9 Heisk. 773, 24 Am. Rep. 373, holding law of place of delivery of note, and not that of making and signing, governs; Faut v. Miller, 17 Gratt. 77, holding note signed in blank in Virginia, and filled up and delivered in Maryland, a Maryland contract. See also note to 8 Am. Dec. 320; note to 31 Am. Rep. 78.

Distinguished in Ex parte Heidelback, 2 Low. 536, F. C. 6,322, reviewing cases, holding bill drawn at drawee's business domicile, governed by law of that place though negotiated elsewhere.

State tribunals are bound to conform to Supreme Court decisions declaring State legislation to be in conflict with United States Constitution, p. 308.

Cited in Cochran v. Darcy, 5 S. C. 126, overruling previous decision upon constitutionality of exemption law to conform to later Federal Supreme Court decisions.

Bankruptcy.- State bankrupt laws are constitutional, but have no effect on contracts made before their enactment or beyond their territory; so a contract made in New York is not affected by the debtor's discharge under the insolvent laws of Maryland, where he resided, though the law was passed antecedently to the contract, pp. 308, 309.

In the Federal courts the following cases have cited and relied upon this holding: Baldwin v. Hale, 1 Wall. 231, 232, 17 L. 533, reviewing cases, holding action on note given to citizen of another State, not barred by defendant's discharge in insolvency; Butler v. Goreley, 146 U. S. 313, 36 L. 986, 13 S. Ct. 88, collecting cases, sustaining constitutionality of Massachusetts insolvency law; Hale v. Baldwin, 1 Cliff. 518, 519, F. C. 5,913, and Stevenson v. King, 2 Cliff. 2, F. C. 13,417, holding debtor's discharge under State insolvency law invalid against creditor, citizen of another State; Byrd v. Badger, 1 McAll. 264, F. C. 2,265, holding discharge under California insolvency law no defense to note made and payable in Boston; Towne v. Smith, 1 Wood. & M. 127, F. C. 14,115, collecting cases, holding discharge under insolvency law of State where note was made, did not bar recovery by foreign indorsee; Mather v. Nesbit, 4 McCrary, 506, 13 Fed. 873, holding Minnesota insolvent laws constitutional, but without extra-territorial operation; Newton v. Hagerman, 10 Sawy, 462, 463, 22 Fed. 526, 527, reviewing cases, holding discharge under State insolvent law no bar to action by nonresident creditor; Gebhard v. Canada Southern Ry., 17 Blatchf. 418, 1 Fed. 389, reversed in Canada Southern Ry. v. Gebhard, 109 U. S. 545, 27 L. 1027, 3 S. Ct. 376, holding parliamentary legislation for relief of embarrassed Canadian corporation did not bind American bondholders: Satterthwaite v. Abercrombie, 23 Blatchf. 309, 24 Fed.

5 How. 295–316

Notes on U. S. Reports.


544, holding discharge under New York insolvency proceedings did not affect a non-resident creditor's claim.

State court citing cases following and affirming the syllabus principle, are: Wilson v. Matthews, 32 Ala. 342, sustaining constitutionality of State insolvent laws, holding resident creditor barred by discharge; Lowenberg v. Levine, 93 Cal. 220, 28 Pac. 942, 16 L. R. A. 160, restricting operation of State insolvency law to the State; Hawley v. Hunt, 27 Iowa, 307, 309, 1 Am. Rep. 274, 276, reviewing cases, holding non-resident creditor not barred by discharge, no matter where debt originated; Felch v. Bugbee, 48 Me. 12, 15, 18, 77 Am. Dec. 205, 207, 209, holding maker's discharge in Massachusetts did not bar action on note by indorsee, citizen of Maine; Damon's Appeal, 70 Me. 154, sustaining constitutionality of Maine insolvency law; Hills v. Carlton, 74 Me. 160, holding discharge in Maine, no bar to action in Maine court by citizen of another State; Larrabee v. Talbott, 5 Gill, 437, 439, 46 Am. Dec. 642, 643, reviewing cases; Potter v. Kerr, 1 Md. Ch. 281, Evans v. Sprigg, 2 Md. 470, 480, reviewing cases, and Poe v. Duck, 5 Md. 6, collecting cases, sustaining foreign creditor's right, under domestic judgment, after insolvency proceedings commenced, to attach property in trustee's hands; Phoenix, etc., Bank v. Batcheller, 151 Mass. 592, 24 N. E. 918, 8 L. R. A. 646, and n., reviewing decisions, holding action by citizen of another State maintainable on domestic contract, notwithstanding debtor's discharge in insolvency; Donnelly v. Corbett, 7 N. Y. 503, 505, holding State insolvent law void as to creditor, citizen of another State; Elton v. O'Connor, 6 N. Dak. 19, 68 N. W. 90, 33 L. R. A. 530, holding insolvent law constitutional as to debt contracted prior to its enactment; Beers v. Rhea, 5 Tex. 359, holding discharge under State bankrupt law no defense to action on foreign contract with citizens of another State; Bedell v. Scruton, 54 Vt. 495, reviewing cases, holding discharge under State law no bar to non-resident creditor's claim irrespective of locus of contract or forum; McCarty v. Gibson, 5 Gratt. 325, holding discharge in Maryland ineffectual in Virginia court, where contract was between Virginians and debtor, subsequently moved to Maryland.

Cited also, arguendo, in Elanters' Bank v. Sharp, 6 How. 328, 330, 12 L. 459, holding State insolvent laws applicable to past contracts only in respect to the remedy; Canada Southern Ry. v. Gebhard, 109 U. S. 545, 27 L. 1027, 3 S. Ct. 376, dissenting opinion, majority holding parliamentary scheme for settlement of embarrassed corporation with its creditors, bound American bondholders; Perry Mfg. Co. v. Brown, 2 Wood. & M. 460, F. C. 11,015, and Whetmore v. Murdock, 3 Wood. & M. 388, F. C. 17,509, holding, arguendo, foreign creditors not barred by discharge under State insolvency laws; Globe Ins. Co. v. Cleveland Ins. Co., 14 N. B. R. 311, 10 Fed. Cas. 490, holding, arguendo, State insolvency legislation authorized in absence of congressional legislation; Aycock v. Martin, 37 Ga. 174,

179, dissenting opinion, majority holding a Georgia stay-law unconstitutional; Brighton Market Bank v. Merick, 11 Mich. 418, 424, where court equally divided upon foreign indorsee's right to sue on note after maker's discharge, where payee citizen of maker's State; Wendell v. Lebon, 30 Minn. 239, upon effect of foreign creditor proving claim; Morse v. Goold, 11 N. Y. 288, 62 Am. Dec. 107, holding exemption laws, merely modify the remedy and are constitutional; Crampton v. Valido Marble Co., 60 Vt. 298, 299, 15 Atl. 157, 1 L. R. A. 123, 124, and n., arguendo, holding insolvent laws binding in courts of the State upon citizens thereof, who contracted elsewhere; Second, etc., Bank v. Schranck, 97 Wis. 268, 273, 73 N. W. 37, 39, 39 L. R. A. 577, 578, dissenting opinion, holding certain provisions of insolvent law unconstitutional. See also note to 4 Am. Dec. 74; good discussion of this subject in note to 23 Am. Dec. 349, 356.

Distinguished in Davidson v. Smither, 1 Biss. 349, F. C. 3,608, reviewing cases, holding non-resident creditors had abandoned their immunity by obtaining judgment in State court prior to defendant's discharge; Von Glahn v. Varrenne, 1 Dill. 519, 520, F. C. 16,994, collecting cases, recognizing the principle, but holding it inapplicable, where plaintiff, though an alien, resided in defendant's State; Ruíz v. Eickerman, 2 McCrary, 259, 5 Fed. 790, holding foreign creditor, suing in the United States, barred by discharge under Federal bankruptcy law; Torrens v. Hammond, 4 Hughes, 599, 10 Fed. 902, citing Taney, C. J.'s criticising opinion, holding foreign creditor could not attach funds in assignee's hands; Wilson v. Matthews, 32 Ala. 346, collecting cases, recognizing principle, but holding it inapplicable to prevent transfer of personalty in another State by the assignment; Orr v. Lisso, 33 La. Ann. 477, holding stay of proceedings ordered under State insolvency law applied to nonresident creditors in State court; Owen v. Roberts, 81 Me. 445, 17 Atl. 404, 4 L. R. A. 230, where assignment in insolvency dissolved attachments levied within four months, no exception made in foreign creditor's favor; Pinckney v. Lanahan, 62 Md. 450, 451, 452, reviewing decisions, overruling Larrabee v. Talbott, supra, recognizing general doctrine, but denying foreign creditor's right to attach after insolvent proceedings commenced; Brigham v. Henderson, 1 Cush. 432, 48 Am. Dec. 611, holding debtor discharged by insolvent proceedings, from contract with one who at time of contracting was citizen of same State; Scribner v. Fisher, 2 Gray, 46, holding debtor's discharge barred action on domestic contract, though parties citizens of different States; Marsh v. Putnam, 3 Gray, 561, 563, reviewing cases, holding similarly where parties citizens of same State, but contract made and to be performed elsewhere; Smith v. Brown, 43 N. H. 50, holding, after commencement of insolvent proceedings by maker, his foreign trustee not chargeable by foreign indorsee.

5 How. 317-343

Notes on U. S. Reports.




Appeal and error.- It is not enough that the record on error from "conFederal Supreme to highest State court, shows that plaintiff tended and claimed" that the judgment violated the obligation of a contract and this claim was overruled; it must appear that the question must have been raised and must have been decided in order to induce the judgment, p. 341.

Cited and principle applied in Lawler v. Walker, 14 How. 152, 14 L. 366, where certificate omitted to state statute claimed to be unconstitutional; Messenger v. Mason, 10 Wall. 510, 19 L. 1029, holding statement of case in certificate presented constitutional question in too general a form; Brown v. Atwell, 92 U. S. 329, 23 L. 513, dismissing writ of error where record merely showed it was contended that a Federal question was involved; Williams v. Oliver, 12 How. 124, 13 L. 920, where decision involved only a question of State law, writ dismissed; Frost v. Ilsley, 55 Me. 378, 380, holding statement in totidem verbis that necessary question was involved of no avail, unless whole case showed jurisdiction existed; Nauer v. Thomas, 13 Allen, 577, collecting cases, holding showing of party's intention to raise the requisite question insufficient for Federal Supreme Court's jurisdiction. Cited also in Quirk v. Clinton, 20 Fed. Cas. 147, sustaining admiralty jurisdiction of suits upon contracts of affreightment.

Distinguished in Bridge Proprietors v. Hoboken L. & I. Co., 1 Wall. 144, 17 L. 576, where subsequent statute alleged to impair obligation created by prior statute, which was so construed that former did not impair it; Indianapolis v. Central Trust Co., 83 Fed. 532, 53 U. S. App. 664, collecting cases, upon constitutionality of State law, reducing fares chargeable by street railroad.

Appeal and error.- The question whether some of the provisions of an earlier general bank law applied to a bank subsequently chartered, is one of construction, not of validity, of State statutes, and, therefore, exclusively within the province of the State courts to determine, pp. 342, 343.

Cited and principle applied in Baltimore, etc., R. R. v. Hopkins, 130 U. S. 223, 32 L. 913, 9 S. Ct. 507, reviewing cases, holding judicial construction of statute, which does not question Congress' power to enact it not within appellate jurisdiction; Central Land Co. v. Laidley, 159 U. S. 110, 40 L. 94, 16 S. Ct. 82, where validity of statute was admitted and only question was of construction. Cited, arguendo, in Planters' Bank v. Sharp, 6 How. 327, 331, 12 L. 458, 460, upon constitutionality of penal laws for banks failing to perform duties; Bridge Proprietors v. Hoboken L. & I. Co., 1 Wall. 154, 17 L. 580, dissenting opinion, majority sustaining Federal Supreme Court's jurisdiction.

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