1788.
value of his creditors have agreed to his difcharge, the eftablifhed principles of law will protect him here from the moleftation of a refractory individual.
SHIPPEN,Preʃident.– There are certain rules adopted for the government of the Court in refpect to bail, which, as they are confonant to law and reafon, ought not to be wantonly violated. In cafes of neceffity, however, thefe rules admit of fome relaxation ; as where it is impracticable to obtain a pofitive affidavit of the debt, the Court, being fatisfied of its exiftence by collateral proofs, will order fpecial bail to be entered.
But the prefent queftion is not of that nature; for the matter alledged in fupport of the rule, goes immediately to the merits of the caufe, and cannot, with any propriety, be confidered as a fact merely collateral. It is, in effect, faying, that the Defendant has paid the Plaintiff's debt ; which furely cannot be tried on a mation of this kind ; not can it at any time be fubftantiated by the teftimony of the Defendant himfelf.
I think, indeed, that the liberality of our Courts, has already extended the benefits of a ceʃʃio bonorumin another country, as far as prudence will juftily. In the cafes of Millar v. Hall and Thompʃon v. Young, there had been a general furrender for the benefit of all the creditors; and judgments of diʃcharge ƒrom their reʃpective debts, were regularly pronounced and certified in favor of the Defendants by the Court of a fifter State. This diftinguifhes thefe cafes from the cafe of James et. al. v. Allen (ant. 188) where the Defenddant's perʃon only was diʃcharged, under the law of New-Jerʃey, clearly local in its terms and operation: And, in the cafe of Le Clercq v. Richette our opinion, in directing the Jury to find for the Defendant , was founded upon the evidence that the Plaintiff was a party to the proceedings in France, and that an actual difcharge had been obtained conformably to the laws of that kingdom.
From thefe decifions it may be collected, that the judgment of a foreign Court difcharging the debt would, for that purpofe, be recognize here; but it would be contrary to reafon, juftice, and law, to protect a man from arrefts, who had made his way to this country before he obtained his certificate, merely becaufe he had committed an act of bankruptcy and furrendered to the commiffioners in England. The objections are equally ftrong upon the prefent occafion ; for, it is clear, that the proceedings, which have hitherto taken place in the Confular Court of L‘Orient, are inchoate and inconclufive; and,, even if the Plaintiff had figned the letter of licence for three years, that, according to an exprefs authority in Barnes, would not be a fufficient caufe for refufing fpecial bail.
Upon the whole, the court are clearly of opinion, that the Defendant is not entitled to be releafed on common bail; and, therefore, direct.
The rule to be difcharged.
