1788.
that, even if M‘Carthy’s difcharge according to the lex loci could be actually proved, it would not operate againft the Plaintiff on a motion of this kind. The mutual fpirit of intercourfe among nations has, indeed, introduced a more liberal idea of the ceʃʃio bonorum; and, upon the trial of the caufe, fuch proof would probably be fatal to the Plaintiff's demand; but, whether he is difcharged, or not, is a matter of fact, to be decided by the verdict of a jury ; Salk. 100. and to deprive the Plaintiff of fpecial bail, at this time, would not only be an illegal anticpation of that decifion, but, in effect, a denial of juftice, as it appears that the Defendant is under an obligation to repair fhortly to France, and would probably never venture again within the jurifdiction of this Court.
He contended, however, that, even by his own fhewing, M‘Carty had not been difcharged in France ; and reprefented, that the proceedings in the Confular Court amounted to no more than an inchoate bankruptcy; for, the concurrence of three fourths in value of his creditors to the compofition alledged, and the homologation or confirmation thereof by the Parliament, being an indifpenfable requifite to his difcharge, ‘till that was eftablifhed, it could not avail the Defendant that he had made a furrender, or that the Plaintiff had proved his debt, any more than the furrender of a bankrupt here, or the proof of a debt under the commiffion, would be fufficient to preclude a creditor from his remedy at law, before a certificate was actually granted.
Nor is the Defendant's teftimony, he urged, competent to prove the fact, which, by the lex loci, operates as a difcharge ; it is matter to be fhewn by an exemplification of the foreign record ; when, perhaps, it may be tantamount to a bankrupt's certificate ; or, with ftricter analogy, it may be tantamount to a bankrupt's certificate ; or, with ftricter analogy, it may be compared to the cafe of a difcharge under the compofition law of England; and he cited a cafe which he faid was exactly in point from Salk. 99 pl. 7. where the Court, on a queftion of bail, would not allow the Defendant to fhew that he had obtained his difcharge under that act, and that the Plaintiff was bound, though a non fubfcriber, to the compofition.
Ingerʃol, in reply, faid, that he did not mean to contend, that the debt was difcharged; but only to fhew, by the teftimony of the Defendant, a collateral fact, which entitled his perfon to an exemption from arreft in the prefent cafe. He agreed that the proceeding amounted only to an inchoate bankruptcy under the infolvent laws of France; but, he infifted, that it would be cruel and unjuft to allow the Plaintiff all the advantage of his concurrence there, and likewife the benefit of fpecial bail in an action here. Although it may be true, therefore, that the Defendant had not yet received what would amount to a certificate, yet, as he has furrendered all his effects, muniments, and vouchers, to the proper officers, for the benefit, and with the knowledge and approbation of the Plaintiff, as well as his other creditors, the Court will not fuffer the oppreffion that is now attempted, but rather incline to hear the Defendant in favor of the rule; and, if it can be fhewn that three fourths in
value
