Long v. Hammond

Tenney, J.

The bankrupt Act, of the Province of New Brunswick, 6 Victoria, (1843,) § 2, secures to those only who reside in the Province, the benefits of its bankrupt laws.

But it is insisted, that a discharge, after a full hearing upon a petition in bankruptcy and proceedings thereon, is in its nature a judgment of a court of compétent jurisdiction, and caqnot therefore be impeached, for any cause.

The jurisdiction of a court of another government may *209be inquired into, and if a want of jurisdiction appears, no credit will bo given to the judgments and decrees of that court. Middlesex Bank v. Butman & al., 29 Maine, 19, and cases there cited.

It is agreed that one of the defendants resided in this State, as early at least as the time, when the writ was made, which was nearly six months, before he filed his petition, and his residence has continued here since that time. Consequently the court, before which the proceedings upon the petition of William C. Hammond were had, was without jurisdiction in his case, and the decree of discharge is to be treated, here, as void.

The bankrupt Acts of New Brunswick, provide a mode, in which creditors may be notified of the pendency of petitions of their debtors, for the benefit of those Acts, and give them the opportunity of being heard thereon and of making objections to the decrees prayed for. No provision in any Provincial Act, has been referred to, whereby, after the final discharge of a bankrupt, a rehearing can be had, in a suit upon the original contract, upon the question, whether the petitioner shall still be liable or not, on account of fraud alleged to have been practiced by him, or for other cause. Creditors can object to the decree of 'discharge, and bo heard in their objections only in the bankrupt courts. It would seem, that in this respect, the bankrupt Acts of New Brunswick are unlike the bankrupt law of the United States enacted in 1841. In the latter, it was provided, that a creditor', who had not had an allowance of his claim, in the bankrupt court, could institute a suit upon his demand, and the bankrupt’s discharge and certificate would be no defence, if impeached, for fraud or wilful concealment; those creditors only, whose claims were allowed, being treated as parties to subsequent proceedings. Humphreys v. Swett, 31 Maine, 192. Under the Acts of New Brunswick, it seems to have been designed, that all creditors should be parties to the proceedings in bankruptcy, whether their claims had been allowed or not, after the notice required, and their right *210to be heard, was regarded as waived, if they omitted to make their objections to the discharge of the bankrupt, in the manner provided.

It is true, that the bankrupt laws of another country cannot govern courts in this, in regard to contracts made in the former, excepting from a principle of indispensable comity, extending the right to other nations, which it demands and exercises for itself. It is treated as a binding principle of international law, subject to the exception, that if the foreign bankrupt law gives to its own citizens or subjects benefits, which it in effect denies to those of other countries, this comity will not be extended to work injustice to the latter, in their own courts.

The general rule is, that a discharge in bankruptcy from the contract, according to the laws of the place, where it was made, or where it is to be performed, is good every where, and extinguishes the contract. Very v. McHenry, 29 Maine, 206, and cases there referred to.

The contract, in the note in suit, was both made and was to be performed in the Province of New Brunswick, where both parties resided at some time, and it does not appear, that they resided in any other place, so far as it regards the plaintiff and the defendant Andrew B. Hammond. The discharge of this defendant was obtained in pursuance of the bankrupt laws of that Province, and was a discharge of the contract there. The exception to the general rule applicable to discharges of bankrupts under the laws of other countries, cannot be invoked in this case, as the plaintiff is not shown ever to have been a citizen of the United States, but seeks to obtain a judgment in this suit, when prosecuting it, as a resident of New Brunswick.

The plaintiff however insists, that he has the right to prevail in this suit, on the ground, that Andrew B. Hammond fraudulently omitted to surrender to the commissioner in bankruptcy, valuable real estate in this State, at the time that he surrendered his other property; and that this real *211estate was attached in this suit, before the petition of this defendant was filed.

William C. Hammond defaulted. Andrew B. Hammond discharged.

If the ownership of this real estate was an obstacle to the discharge of Andrew B. Hammond, the plaintiff having been a party to the proceedings in bankruptcy, had all the opportunity, which the Provincial laws afforded, to present it to the court. If he did so, the objection must have been overruled by a tribunal of competent jurisdiction. If he did not make known this objection, from ignorance of the facts, or other cause, he stands now in the same predicament, in his own country, as other litigating parties do, who fail to make out in their own behalf, the strongest case, which the facts might have allowed, while they had day in court; but so long as the judgment remains in full force, it cannot be collaterally impeached, without some legal provision, which may enable parties to do so. Of such provision, in the laws of New Brunswick, we are not advised. To permit the plaintiff to prevail on this ground, after he has had the opportunity to present and insist upon every objection, which was open to him, in the country where he resided, without success, would be granting the right of being heard on the same question in this Court, in order to avoid the effect of a discharge in bankruptcy which was good there, when obtained, and would be a perfect bar to a suit upon the note, instituted in a court in that Province, at this time, and which, by the rule before referred to,,is a valid discharge every where.

The bankrupt Acts of the Province of New Brunswick, do not, as far as those Acts have been introduced, give any lien upon property attached by a creditor, before the filing of a petition by one seeking the benefits of those Acts, so that property may be made available to the creditor, notwithstanding the debtor’s discharge. The discharge being from the contract itself absolutely, there can be no basis for a judgment against the property attached.