Tabor v. Harwood

5 Del. 42

• Court: Superior Court of Delaware
• Decided: July 5, 1848
• Status: Published

Opinion

By the Court:—

Harrington, Judge:

The recognition of discharges under insolvent laws of other States depends on comity, and must be regulated by our own sense of what is due to the interests of our citizens, and respect for our laws. If such discharges interfere with or contravene either, they ought to be disregarded; otherwise, the same force may be given to them here, as in the State making the discharge. Whenever, in a conflict óf laws, it is doubtful which should prevail, the court will prefer its own law to that of the stranger. [17 Martin's Rep. 596.]

In general a discharge 'in the insolvent courts of Pennsylvania, will, as between citizens of that State, or for debts contracted there, have the effect to prevent an arrest or imprisonment here. [1 Harr. Rep. 466; lb. 367; 3 lb. 271.] Even where such a discharge in Pennsylvania was founded upon an assignment preferring creditors, which our law prohibits, the Superior Court of this State gave* effect to the discharge, as releasing the body, though it refused any sanction to the assignment as conveying the property. " [Fisher vs. Stay-ton, 3 Harr. Rep. 271; Hutchinson vs. Gordon, 2 lb. 179.] In an earlier case, Maberry & Pollard vs. Shissler, 1 Harr. Rep. 849, that court refused to give any force to an assignment which was contrary to the policy of our laws; and announced the general principles above stated.

The question then is, whether we can recognize- the discharge of this defendant as an insolvent, made by the Court of Common Pleas of Philadelphia, without prejudice to the rights of our suitors, or interference with the policy of our laws. Had he been discharged in 'Pennsylvania before arrest here, we might; for the matter of fair insolvency would then have been adjudicated, and we could have respected the decision of the.Pennsylvania insolvent court on that question. But in this case the insolvent proceedings cornmenced here; and the first judgment on this question was rendered here. The defendant was adjudged to be a fraudulent insolvent in reference to the claim of J. C. & J. H. Tabor; he was adjudged to have forfeited his right to our special insolvent law discharging the body, and was compelled to give special bail to their action against him. Then came the action of the insolvent court of Pennsylvania discharging him as a general insolvent, the force of which as is now claimed, was to annul the previous decision of this court;' to exonerate the special bail which we had required him to put in, and discharge his body from arrest, though we had already decided that it was, by reason of his fraud, liable to arrest.

There is no necessity for us to extend our comity so far. We cannot do it consistently with a just regard to our own laws. Those laws protect the honest and fair insolvent from imprisonment for debt; they Scrupulously exclude the fraudulent insolvent from such protection. They must be regarded as a system; and though the defendant has tried but the initiatory step in his application for a special discharge, he failed in it, by reason of ascertained fraud, and consequently failed in procuring the personal immunity from arrest which our system extends to honest insolvents. Having subsequently procured a discharge in Pennsylvania, we cannot give to that discharge the effect now claimed for it, without virtually annulling our decision in this case, and opening a door for the general evasion of our own insolvent laws, through coinity to those of other States. We, therefore, discharge the rule.