the defendant one half of the amount. The whole claim proceeds on the collateral agreement, and there is no pretense of grounding the suit, as holder or indorsee, on any premises contained in the notes, or in the indorsements on them.

There is also a good consideration for this collateral agreement. It is the promise of the plaintiff before hand to lose one half, if the defendant would become a surety with him and lose the other half, and the actual payment afterwards of the whole by the plaintiff. Being then a collateral agreement by parol, which is sued, it stands free from the objection to the parol evidence offered to prove it. Were the action on the notes, and this evidence offered to contradict them, it would be entirely different; because, in an action on a note, parol testimony is not competent to vary its written terms and probably not to vary a blank indorsement by the payee from what the law im- | ports. Civil Code of Louisiana, art. 2256; Stone et al. v. Vincent, 6 Martin, N. S. 517; 15 La. R. 539; 10 Ibid. 205; 1 Peters's C. C. R. 84; Bank of the United States v. Deane, 6 Peters, 59; 3 Camp. N. P. 56, 57; 9 Wheat. 587; 1 Martin, N. S. 641; Chitty on Bills, 541; 12 East, 4; 4 Barn. & Ald. 454. So, between the contracting parties, likewise, all prior conversation is supposed, as far as binding, to be embodied into the written contract. 4 Louisiana R. 269; Taylor v. Riggs, 1 Peters, 591; 8 Wheat. 211. But the parol evidence here is 292*] not offered *in any action on the note, or to alter its terms or its indorsements; nor is any prior or contemporaneous conversation of fered to vary the note, or its indorsement, in an action founded on either of them. But it is offered to prove a separate contract, which was made by parol, and is of as high a character as the law requires in such cases, and this evidence is plenary and entirely satisfactory to substantiate the separate contract. It is true, at the same time, that, after a prior indorser has paid a note, he cannot recover, even in an action, not on it, but for contribution of one half from a second indorser, if they were not in fact joint sureties, nor in fact made any collateral contract whatever, nor in fact had any communication whatever as to their liability. McDonald v. Magruder, 3 Peters, 474; 3 Harris & Johns. 125; 7 Johns. 367.

But the present is a case differing, toto cælo, from that. Here, by a deliberate arrangement before a public notary, and by the positive evidence of two witnesses, the two indorsers were co-sureties, and specially agreed to bear any loss equally between them; and the right to recover is therefore entirely clear. 3 Peters, 477; Douglass v. Waddle, 1 Hammond, 413, 420; Deering v. The Earl of Winchelsea, 2 Bos. & Pull. 270.

There are two or three other views connected with this part of the case which may be usefully adverted to, but by which we do not decide it.

hence, under circumstances like these, where, as in Louisiana and some other States, it is implied by law that such a person puts his name there as a surety or guarantor, no objection exists to parol proof to that effect. 10 Louisiana R. 374; Lawson v. Oakey, 14 Ib. 386; Nelson v. Dubois, 13 Johns. 175; Dean v. Hall, 17 Wend. 214; 5 Mass. R. 358; 12 Ibid. 281; 1 Vermont R. 136; Ulen v. Kitteridge, 7 Mass. R. 233; 4 Wash. C. C. R. 480; 5 Serg. & Rawle, 363. In White v. Howland, 9 Mass. R. 314, he is held to be liable as if signing with the maker as a surety. But however much, in some States, the practice may go beyond this in suits between the parties to the agreement, as in 1 Hammond, 420, and 5 Serg. & Rawle, 363, it could general generally not be competent to prove anything by parol, in actions on the note, contrary to what is written or to what is implied in law. Bank of the United States v. Dunn, 6 Peters, 59.

And in other States and in other circumstances, where the inference of law is not that such a name is placed there as a surety, it is very doubtful whether, in a suit on the note, proof that he did it only as a surety is competent. 6 Martin, N. S. 517; Bank of the United States v. Dunn, 6 Peters, 59.

*In England, in the case of such a [*293 name on the back of a bill of exchange, the person may be treated as a new drawer (Chitty on Bills, 241); and if the payee there has also indorsed the note, the implication deemed most proper is, that another name on the back is that of a second indorser, and should so be held in the hands of third persons. Chitty on Bills, 188, 528; Holt's Nisi Prius, 470; 5 Adolph. & Ellis, 436; 6 Nev. & Man. 723. So, 6 Martin, 517. It will be seen, however, that these last are generally cases of actions on the notes or bills of exchange themselves, while the present case is not brought on the note itself, but on a distinct and collateral contract.

Another suggestion bearing on the case might be, that in Louisiana the surety, when paying, may step into the shoes of his creditor, if he pleases, by subrogation, and enjoy all his rights against the debtors or other sureties. Hewes et al. v. Pierce, 1 Martin, N. S. 361; Calliham v. Fanner, 3 Rob. Louisiana, 299; Civil Code of Louisiana, art. 2157. But there the suit is probably in the creditor's name, and not, as here, in that of the surety. So, in some countries where the civil law prevails, such a contract as this, deliberately made before a notary, and by him reduced to writing by request of the parties, would in law be deemed equivalent to a contract in writing; and on that ground be admissible even in a suit on the note between the original parties to it.

The doings of the parties thus have a sort of public form given to them, quasi judicial, and they are bound by them, though not signed by the parties. 2 Domat's Civil Law, b. 2, tit. 1, sec. 1, art. 28; and tit. 5, sec. 5, pp. 661, 662. It would be there deemed an act of too much deliberation by the parties, and of too much formality before that public officer, to be treated merely as an ordinary verbal arrange

Statement of Facts. John L. Moffat, Joseph Curtis, and Jonathan Wilmarth (the last of whom is now deceased) were citizens of the State of New York and resident there, and partners trading under the name and firm of Wilmarth, Moffat & Curtis, and the defendant was a citizen and resident of Maryland during the times when the contracts and transactions upon which this suit is founded, or which constitute the causes of this action, were entered into and had and made between the said firm and said Cook.

That the course of dealing was, that Cook, the defendant, used to write to said firm, ordering such articles or goods as he wanted, and they, said firm, sent them to him, and charged 296*] the goods in *their books. In order to settle the account current from time to time, Cook sent to the said firm (usually by mail, sometimes, perhaps, otherwise) his note at six months, and these notes averaged $500 per month, and were punctually paid, for a time, in Baltimore. Cook at length became embarrassed, and wanted extensions, until he stopped payment entirely; being then indebted to said firm, on book accounts, $2,104 98 And owing 1 note, due 4th April,

...

....

...

1832, for

500 00

The above notes were remitted by Mr. Cook to said firm previously to March, 1832, when he stopped payment. On the 7th June following, his New York creditors generally agreed to give him time to pay, and the said firm of Wilmarth, Moffat & Curtis, about that time, by arrangement made with Mr. Disosway, Cook's attorney in New York, gave time, and took Cook's three notes, drawn payable to the said firm, for the sums following, all dated 12th May, 1832, as the respective time as follows,

viz.:

These notes were drawn and dated at Baltimore, by Cook, and sent by him to his said attorney, at New York, and there delivered by said attorney to the said firm; they were given for the amount of Cook's account, and the notes then had and held by said firm against Cook; the old notes being then given up to his attorney. These three notes and the consideration thereof, namely, the goods sold and delivered as aforesaid, constitute the ground of this action; the amount of the notes being the amount claimed. It is also admitted that said Cook has applied for and obtained the benefit of the insolvent laws of Maryland since such notes fell due.

Edward Hinkley, Attorney for Plaintiffs.
J. Glenn, for Defendant.

Upon the foregoing statement of facts, the plaintiffs pray for a general and unqualified judgment, notwithstanding the release of Cook, since the making of said notes, under the insolvent laws of Maryland; and the plaintiffs rely upon the cases of Ogden v. Saunders, *12 Wheat. 213; Boyle v. Zacharie and [*297 Turner, 6 Peters, 634; Frey v. Kirk, 4 Gill & Johns. 509.

The circumstances of the notes being dated and made at Baltimore, in favor of citizens, at the time, of New York, does not make the contract a Maryland contract, any more than did the acceptance of bills of exchange by Mr. Ogden, in the State of New York, make such acceptance a New York contract, so as to be discharged by Mr. Ogden's release under the insolvent laws of that State.

The evidences of contracts made between citizens of different States cannot bear date in both the States of the respective parties. In the nature of things, and according to the course of business, they would bear date and be signed by one party only, in one of the States; most commonly in the State of the citizenship and residence of the party signing. And it would be immaterial in principle in which of the States it might bear date. It is a contract between citizens of different States at the time when made, and this is the fact and the principle which excludes it from the operation and effect of a release of the debtor under the insolvent laws of his State.

Edward Hinkley, Att'y for Plaintiffs. 1. The defendant's attorney insists that the contract was to be performed in Maryland, and governed by the laws of Maryland, and that the judgment must be to exempt the future acquisitions of the defendant from execution.

2. That at all events the judgment must be so entered as to exempt the defendant's person from arrest. J. Glenn, for Defendant. Judgment for the Plaintiffs upon the Case stated.

Whereupon, all and singular the premises being seen, heard, and by the court here fully understood, for that it appears to the court that the said John L. Moffat and Joseph Curtis are entitled to recover in the plea aforesaid. Therefore, it is considered by the court here, that the said John L. Moffat and Joseph Curtis recover against the said William G. Cook, as well the sum of twelve thousand dollars, current money, the damages in the declaration of the said John L. Moffat and Joseph Curtis mentioned, as the

given by the decision in that case.

*The Constitution is to be construed [*299 with reference to its general as well as to its particular intents.

ment of $7,335.57, with interest from 21st day of April, 1836, and cost of suit.

Memorandum. That no execution against the person of the defendant be issued in the above cause on said judgment without the leave of the court.

298*] *To review this judgment the case was brought up to this court.

The cause was argued by Mr. Mayer and Mr. Johnson for the plaintiff in error, and by Mr. Hinkley for the defendants in error.

Mr. Mayer entered into a critical analysis of all the opinions which had been given by this court on the subject of State insolvent laws, from all which he argued, that the philosophy of the law had never been settled; that, in con

The general government emanates from the

rectly upon them and for their benefit. McCulloch v. Maryland, 4 Wheat. 316; Cohens v. Virginia, 6 Ibid. 413.

Moreover, the Constitution is an agreement or compact between each individual of the people and all the rest, as well as between each one of the States and all the others.

The States, as to their sovereign and exclusive powers, are foreign to each other, as well as to the federal government. Woodhull et al. v. Wagner, Bald. C. C. Rep. 296.

It is said there is great obscurity in the clause of the Constitution (art. 1, sec. 10) which declares, among other things, that "no State shall pass any law impairing the obligation of contracts." But if we construe the language as

ions, the whole subject ought to be again reviewed. There was a difficulty in annexing a meaning to some terms in the Constitution which were in themselves uncertain; such, for example, as the phrase, "impairing the obligation of contracts." This expression was supposed to include a prohibition to pass insolvent laws; and yet in Sturges v. Crowninshield, 4 Wheat. 122, it appeared to be conceded that a State might pass such laws, operating only upon its own citizens. It was also admitted, on all hands, that the United States could pass bankrupt laws, which dissolved a contract entirely. Now, if these laws were prohibited on account of their supposed dishonesty, it was unaccountable that a power to extend them over the whole nation should have been conferred upon Congress. Certainly laws do not become less mischievous by becoming more extensive. It would seem as if bankrupt laws were not considered as impairing the obligation of contracts. In the debates of 1787, they

cians call a universal negative proposition, and being absolute and imperative.

1. It excludes every kind and degree of what it prohibits, whatever that be. This has been seen by the court. Sturges v. Crowninshield, 4 Wheat. 122; Green v. Biddle, 8 Ibid. 84.

2. Consequently it excludes every cause, mode and manner, by which the thing prohibited may be affected. Hence it is immaterial what may be the title, provisions, or professed object of a State law, if, in its effect, it impair the obligation of a contract in the sense of the Constitution.

3. It may be admitted, that, in the absence of any bankrupt law of Congress, the States may pass insolvent or bankrupt laws, provided their effect be not extended to impair the obligation of contracts. The power granted to Congress by the Constitution, art. 1, sec. 8, "to establish uniform laws on the subject of bankruptcies throughout the United States," is permissive, not imperative. The decisions which are in

nations have bankrupt laws, and it is not surprising that the power to make them was given to Congress, as auxiliary to the general one of regulating commerce. These State laws only stay all judicial proceedings, like statutes of limitation. It will not do to say that statutes of limitation rest on a presumption that the debt has been paid, because where they apply to land there can be no such presumption.

In support of these and similar views he cited Secret Proceedings and Debates of the Convention, Yates' Notes, 70, 71, 246, 247; 3 Madison Papers, 1442, 1443, 1448, 1480, 1549, 1552; Federalist, 80th number; Story's Conflict of Laws, secs. 312, 395, 404, 422, 438.

Mr. Hinkley, for defendants in error:

It is understood that the question raised upon the statement of facts in this case was decided in the case of Ogden v. Saunders, 12 Wheat. 213.

pairing the obligation of contracts. Perhaps it can only be done in the manner in which it has been done by the decision of Justice Johnson in the case of Ogden v. Saunders, by allowing the States to legislate for their own citizens in matters exclusively within the jurisdiction of their own courts, but not for citizens of other States who have a right to the jurisdiction of the courts of the United States. The justice, policy, or humanity of insolvent or bankrupt laws is not so much a question for the courts as for the Legislatures. If the State Legislatures can constitutionally pass such laws, their own courts may be bound to administer them to all suitors within their jurisdiction. See Babcock v. Weston, 1 Gallis, C. C. R. 168.

4. A creditor may waive his constitutional rights. Consensus *vincit legem. What [*300 acts may amount to a waiver it is for the court to determine. It has been decided, that re