N. Y. Supreme Court.-Sackett v. Andross. both cases be subjected to the same rules of construction. Let us now apply the principle asserted by this law to other subjects of legislation. Congress has power to lay and collect taxes, duties, imposts, and excise; to regulate commerce, and to declare war. Can congress lay a new duty on the goods which the merchant imported the year before? or can any one be taxed on account of the property which he once owned, but had sold before the law was pass ed? After the merchant's ship has sailed with proper papers, can congress subject him to a penalty or forfeiture, because some other document was not procured? After our people have had intercourse with those of another nation, in time of peace, can congress give a retrospect to a declaration of war, and thus render that intercourse illegal? I presume no one will say that any of these things can be done. And yet in each of the supposed cases the power of congress over the subject is given in as broad terms, to say the least, as the power over bankruptcies; and no qualification has, in terms, been annexed to it. Still the power has a limit, resulting either from the nature of our institutions, or the rule of construction which has been mentioned. The general words in which the power is expressed should not be carried out into remote and unjust results which could not have been in the minds, or within the intention of the parties to the compact. I will put another Under the power to regulate commerce, congress may, perhaps, forbid the making of contracts of a particular kind connected with trade. But after a contract has been made, which was lawful at the time, will any one pretend that congress can declare it void? I presume case. not. that the convention had in view the English bankrupt system. Under that, the debt is discharged. But the advocates for this law are compelled to reject that system, because it will not answer their purpose. It is confined to traders, and is a compulsory remedy in the hands of the creditor; and besides, the debtor cannot be discharged without the consent of his creditors as a class. Let us lay the English bankrupt laws out of the case, and how will the question then stand? Congress may legislate "on the subject of bankruptcies"-or insolvency, as the advocates of this law would have the constitution read. Under this power, laws may be passed to deter men from contracting debts which they either want the ability or the will to pay. The insolvent debtor may be punished. His goods, and even his body may be seized for the purpose of compelling him to discharge his legal obligations. But where is the authority for punishing the creditor? He is not the insolvent, and the power says nothing about him. If we do not consider the constitution as referring to the English bankrupt system, it is impossible to maintain that the annulling of the debt comes within the scope of the power. If it be said that both debtor and creditor are included in in the term insolvency, then I answer, that in the same sense both the thief and the man whose goods may be stolen are included in the term larceny; and yet who would think that a power to punish larceny would authorize congress to punish the unfortunate man who had lost his goods. I repeat, therefore, that unless we take the term "bankruptcies" as it had been used and understood prior to the adoption of the constitution, there is no color of authority for blotting out the debt; and if we take the term as it had been used and understood before the constitution was framed, the voluntary branch of this law cannot be supported for the reasons which have been assigned on another branch of the case. If then it be conceded, as has been thus far assumed, that the authority to annul contracts may possibly be deduced from from the bankrupt power, I hold that upon well established principles--such as have been and must be acknowledged in. There is still another view of this quesevery enlightened community-the power tion which is very satisfactory to my mind. should not be so construed as to touch Congress has no judicial power over the this debt. It is against reason and justice. subject of insolvency. The power is "to But the authority to annul contracts, establish uniform laws" on that subject. whether made prior or subsequent to the A law is a rule of action. It looks to the passing of the law, can only be deduced future. It prescribes the rule of right and from the bankrupt power by supposing of duty for the time to come. But con N. Y. Supreme Court.---Sackett v. Andross. gress has attempted the exercise of judi- I have spoken plainly of this law, not because it gave me any pleasure to do so, but because I thought the occasion called for it. The law is based upon false and dangerous principles. Congress has undertaken to legislate for the past, as well as the future; and instead of leaving men to bear the consequences of their own fol- I desire not to be understood as entertaining any hostility to a proper bankrupt system. On the contrary, I deem such a system highly expedient in a country like this, where there are several independent governments in operation, and where so many of the people are engaged in trade and commerce. A bankrupt law is necessary to secure to creditors their just rights, and to afford adequate relief to those, who, N. Y. Supreme Court-Sackett v. Andross. from the nature of their pursuits, are subject to sudden and unforeseen reverses of fortune. But those classes which are not connected with trade, neither need, nor could they endure a national bankrupt system. So far as they require relief from the burden of debts, there is no reason for apprehension, judging from the past, that they will not obtain from the state legislatures all that can properly be granted. And a compulsory bankrupt law, the only one which I think constitutional, would be more than they could bear. rest? Why go beyond traders? Why place the power in the hands of the debtor, and deny all remedy to the creditor? Why discharge debts without the consent of the creditors as a class? And why nullify contracts which were made before the law was in existence? I will not say that these questions cannot be answered; but I will say that as yet no answer has been given. I have been particularly struck with the difficulty which the learned judge found in getting over the objection that this law violates contracts. Indeed, I do not perceive that he has got over it, unless it be by a leap. But the fault is not his : it is in the law. There is no legal highway across that gulph. He says "the great object of giving the bankrupt power to congress was to deprive the states of the dangerous power to abolish debts." With great submission, I think otherwise. That end was fully accomplished by another clause of the constitution, which directly prohibits the states from passing any law" impairing the obligation of contracts." The mere existence of the bankrupt power has not even touched the jurisThe diction of the state legislatures. Since my opinion was prepared, I have received two other opinions upon the same subject; one by Judge Wells of the U. S. Court for the district of Missouri, who agrees with me that the voluntary branch of the law cannot be supported; (2 N. Y. Legal Observer, 185;) and the other by Mr. Justice Catron, who has arrived at a different conclusion. (1 Howard, 277 note.) Beyond the weight of authority which the name of the learned judge last mentioned justly carries with it, I see nothing in his opinion which is calculated to shake the convictions of my judgment. After what has already been said, I shall only notice one or two things. learned judge has "purposely avoided any attempt to define the mere word bankrupt cy" and has contented himself with affirming that the power "extends to all cases where the law causes to be distributed the property of the debtor among his creditors; this is its least limit. Its greatest is the discharge of the debtor from his contracts. And all intermediate legislation, affecting substance and form, but tending to further the great end of the subject-distribution and discharge -are in the competency and discretion of congress." The power is to make laws "on the subject of bankruptcies," and no "limit" of any kind is mentioned in the constitution. How then can any boundary be affixed to the power, except by regarding it as pointing to some bankrupt system? Clearly there is none. The very fact that the learned judge has mentioned limits, proves that no lawyer can read and reason upon the power without considering it as pointing to the English bankrupt system, which provides for "distribution and discharge." If that be so, then what authoity can there be for taking one or two things contained in that system, and rejecting all the But I will not pursue the subject. It is easy to affirm that this law is warranted by the bankrupt power. But any one who attempts to assign the reasons for such an opinion, will, I think, find that he has entered upon a most difficult task. My conclusion is, that the voluntary branch of the bankrupt law is unconstitutional, for the following reasons: 1. It is not confined to traders, but extends to all classes of debtors. 2. It places the whole power in the hands of the debtor, without giving any means of coercion to the creditor. 3. It discharges the debt without the consent of the creditor in any form, and so violates the obligation of the contract. 4. If it retroacts so as to discharge debts contracted before its passage, then it not only violates contracts, but it goes entirely beyond the scope of the bankrupt power. It is not a law, but a sentence or judgment against creditors, and congress has no judicial power over the subject. For these reasons I am of opinion that the second plea is bad in substance as well as form. But I find that my brother N. Y. Supreme Court. Whititing v. Burt. Cowen has arrived at a different conclusion in Kunzler v. Kohaus and Visser, and the chief justice agrees with him in opinion. The plaintiff is therefore only entitled to judgment on account of such defects in the plea as may be cured by amendments. Judgment for the plaintiff. was deposited in the Post-office at that place, addressed to the defendant. The defendant resided in the town of Oswego, about four and a half miles from the Postoffice in the village, which was the only Post-office in the town. It was also the nearest Post-office to the defendant, and the one at which he received his letters and papers. The plaintiff gave evidence tending to make out a promise by the defendant in May, 1812, to pay the note. The Judge held the notice of protest insufficient, and that the further evidence did not help the case; and nonsuited the PLINY WHITING V. BENJAMIN BURT. plaintiff, who now moves for a new trial on a bill af exceptions. The service of notice of dishonor of a Promissory note, to charge an endorser, by leaving it at the Post-office where the demand is made, is only good where the notice is to be transmitted by mail from the place where it was deposited to some other Post-office; where therefore, on the day a note fell due payment was demanded at the Bank in Oswego, and a notice of protest was deposited in the Post-office at that place addressed to the endorser who resided in the town of Oswego, about four and a half miles from the Post-office in the village, which was the only Post-office in the town and the nearest Post office to the defendant, and the one at which he received his letters and papers.--HELD that the notice was not well served, and the endorser was discharged. An unqualified promise of payment made by an endorser after a note becomes due furnishes presumptive evidence that he has been duly charged so far as relates to notice; but where it affirmatively appears that notice was not duly given, the presumption is at an end. ASSUMPSIT tried before GRIDLEY, Cir. J., in December, 1842. The Plaintiff sued as the endorsee of a promissory note dated June 10, 1837, made by Erie Poor, for $250, payable at the Oswego Bank three months after date to the order of the defendant, who endorsed it to Moses Whitney, and he endorsed it to the plaintiff. On the day the note fell due, September 13, 1837, payment was demanded at the Bank in Oswego, and a notice of protest * Another case decided at the same time. C. Tracy, for plaintiff. J. Brown, for defendant. By the Court, BRONSON, J.-The service of notice to charge an endorser, by leaving it in the Post-office where the demand is made, is only good where the notice is to be transmitted by mail from the place where it was deposited, to some other Post-office. (Ransom v. Mack, 2 Hill, 587; Sheldon v. Benham, 4 id. 129.) This notice was not well served, and the endorser was discharged. The further evidence given by the plaintiff, falls short of making out a promise by the defendant to pay after the whole fell due. But if we assume that a promise was proved, the plaintiff cannot, recover. An unqualified promise of payment made by the endorser after the note became due, furnishes presumptive evidence that he has been duly charged, so far as relates to notice. But where it affirmatively appears, as it does here, that notice was not duly given, the presumption is at end. It has been held that if the endorser, properly served, makes a promise of paywith full knowledge that notice has not been ment, it will be a waiver of the want of notice. But that doctrine will not answer the plaintiff's purpose, for it does not ap pear that the defendant knew he had not been regularly charged; and the cases agree that the fact of knowledge must affirmatively appear. The effect of a promise whether received as presumptive evidence of due notice, or as a waiver of the want of it, was so fully considered in Tebbetts v. Dowd, (23 Wend. 379,) that I need say nothing more upon the subject. New trial denied. In Chancery.---Van Slyke v. Schmeck. IN CHANCERY. Before the Hon. REUBEN H. WALWORTH, ELIZABETH VAN SLYKE, Administratrix and Appellant v. VALENTINE SCHMECK, Respondent. APPEAL BOND-PRACTICE-AMENDMENT. the amount required. The bond was also defective in form; the condition thereof, being that the appellant should diligently prosecute her appeal, to effect and pay all such costs as should be adjusted against her, in the event of her failure to obtain a reversal of the decision appealed from, instead of a condition to prosecute her appeal to effect, and to pay "all costs that should be adjuged against her by the Court of Chancery," as required by the 108th section of the title of the revised statutes relative to writs of error and appeals. The petition of appeal filed with the register was also defective in form, as it did not show who were intended to be made parties to the same, as respondents in the appeal. According to the provisions of the Revised Statutes (2 R. S. 610, § 108), an appeal against a Decree of a Surrogate is not effectual unless a Bond is filed with the Surrogate with two sufficient sureties to be approved of by him within thirty days; accordingly where an appeal and Bond were filed on the 28th of January, 1843, the Decree having been entered on the 30th December preceding, and it appeared that the Bond had not been approved by the Surro-culty existed in this case than the techni gate who was absent from home when it was left at his office, and who, when applied to a month afterwards to approve thereof,declined so to do, on the ground not only that it was too late, but that he did not deem the sureties responsible for the amount required, and that the condition of the bond was defective. Held, that although a technical defect in the condition of the Bond, as well as a formal defect in the Petition of appeal might be remedied by amendment, the appeal bond not having been approved of by the Surrogate, the appeal was irregular, and must be dismissed, the Court not having the power to amend such a defect. J. L. Curtenius, for appellant. The CHANCELLOR.-If no other diffi cal defect in the condition of the bond, that could be remedied by allowing the appellant to amend under the provisions of the revised statutes on that subject. (2 R. S. 556, § 34, Potter v. Barker, 4 Paige's Rep. 290.) The formal defect in the petition of appeal is also one which this court would permit the appellant to amend upon payment of costs. R. S. 610, § 108.) If the appeal bond, therefore, is not approved by the surrogate, the appeal is irregular and must be dismissed; as this court has no power to amend such a defect. Here the bond was not approved by the surrogate, and he states in his affidavit that he did not consider the sureties responsible for the amount required. But the statute declares that the appeal shall not be effectual until a bond shall be filed with the surrogate with two suffiThis was an application to dismiss ancient sureties to be approved of by him. (2 appeal from the sentence and decree of the surrogate of Niagara county, for the payment to the respondent of $1054,40 and interest. The decree appealed from was entered the 30th December, 1842, and on the 28th of Jaunuary thereafter, the appellant filed in the office of the surrogate an appeal, together with a bond to the respondent, in the penalty of $100, with two sureties whose affidavits were annexed, stating that they were householders, and were each worth $200 over and above all just debts and responsibilities. But the bond was not approved by the surrogate, who was absent from home at the time the bond was left at his office, and did not return until the evening of that day. And when applied to to approve the bond about a month afterwards, he declined so to do, not only on the ground that it was too late, but also because he did not deem the sureties responsible for Their affidavit of justification was not equivalent to an approval of the sureties by the surrogate. For if he doubted their responsibility it was his duty to examine them on oath as to the particulars of their property, where it was situated, &c., and the nature and amount of their debts and responsibilities, before he approved the appeal bond. A bond properly approved not having been filed with the surrogate within the thirty days allowed by law for appealing, the appeal filed with him was irregular, and must be dismissed with costs. |