Albert Journeay, Jr. & another vs. George Gardner & another, 11 Cush. 355

Thomas, J. The defence to the plaintiffs’ action is a discharge in insolvency. The reply of the plaintiffs is twofold; first, that the discharge is itself invalid, because it was granted within six months from the date of the assignment, and, secondly, that the discharge, if rightly granted, cannot avail as against the plaintiffs, who are, and were, at the time the contract was made, citizens of the state of New York, and who declare upon a contract made in that state, the defendants being, during the whole time, citizens of Massachusetts.

It appears by the record that the assignment was made on the 9th of April, 1851, and that the discharge was granted on the 6th of October of the same year.

The discharge was granted under the St. of 1848, c. 304, § 9, which requires for the discharge of a debtor, whose assets do not pay fifty per cqnt. of the claims proved, the assent in writing of a majority in number and value of the creditors, who have proved their claims; that such assent shall be given within six months after the date of the assignment; that it shall not be granted until the third meeting has been held, and that it shall net be granted except at a meeting of creditors.

But it does not require, either in terms, or by necessary implication, that six months shall have passed after the assignment, before the discharge can be granted. Six months are given to the debtor to procure the assent of creditors, but he can, and in the case at bar, did comply with all the conditions • precedent to his discharge before the lapse of that period. The St. of 1844, c. 178, § 4, under which the case of Eastman v. Hillard, 7 Met. 422, was decided, is very different.

It provides that if a majority in value of creditors, shall dissent within six months after the date of the assignment, the debtor shall not be discharged. Six months are given to the creditors, within which to file their dissent, and no discharge could be granted until this period of election by the creditors had passed.

The St. of 1848, c. 104, § 9, while it is more stringent so far as the action and control of creditors are concerned, requiring the written assent of a majority in number as well as value of all creditors who shall have proved their claims at three meetings of the creditors, and that the discharge shall be granted in open meeting, where the creditors may be present and object to the discharge, if they have ground so to do, on the other hand renders it possible that the debtor may obtain an earlier discharge than under the St. of 1844.

The first objection, then, that the discharge was granted too early, cannot prevail. Nor can the second. The case finds that the plaintiffs proved their claim and received their dividend. The St. of 1838, c. 163, § 7, provides that the debtor having in all things conformed himself to the provisions of the act, “ shall be thereupon absolutely and wholly discharged from all his debts which shall be at any time proved against his estate.” We do not perceive that this provision of the statute is in conflict with any provision of the constitution of the United States.

On the other hand, we understand the supreme court of the United States, in Clay v. Smith, 3 Peters, 411, to have expressly decided that if a creditor, who is a citizen of one state, voluntarily makes himself a party to proceedings under the insolvent law of another state, and his debtor obtains a discharge, his debt is released. Judgment for the defendants.