This case presents two questions for consideration. 1. Whether the insolvent act of New-York, under which the defendants obtained a discharge, is unconstitutional, void and inoperative, as between the parties to this suit. 2. Whether the discharge obtained on the joint petition of the plaintiffs, defendants and others, is a bar to the plaintiffs’ claim.
The first question ljas recently been decided in the case of Mead v. Smith, ante 753. With respect to the second enqui-ry, the discharge, if of any force, is a release in law, and not by the act of the party ; and for its validity entirely rests on the constitutionality of the insolvent law of New-York. The request of the plaintiffs was merely this, that the benefit of the law might be given the defendants, and then valeat quantum valere. Besides, the discharge must be construed in subordination to the intent of the plaintiffs in signing the petition. This can only be supposed to have authorized a release of the defendants from their demand, if the proceedings of the court Were legal and operative on all the creditors. It never can be presumed, that the plaintiffs meant to preclude themselves, if the creditors not petitioning were not equally barred. The validity of the act was assumed, as a condition precedent; and this error invalidates the proceeding.
The defendants’ plea is insufficient; and judgment is advised for the plaintiffs.
Peters and Chapman, Js. were of the same opinion. Brainard, J. was absent.