to take cognizance of, and decide upon a single offence. It is sufficient for us to say that there is no such limitation in the act itself.

The next objection to the avowry is, that the certificate of the president of the court martial is materially variant from the sentence itself, as set forth in a prior allegation. The sentence as there set forth is, "and thereupon the said general court martial imposed the sum of ninety-six dollars as a fine on the said Jacob, for having thus failed, neglected, and refused to rendezvous and enter in the service of the United States of America, when thereto required as aforesaid." The certificate adds, "and that the said Jacob E. Mott was sentenced by the said general court martial, on failure of the payment of said fine imposed on him, to twelve months' imprisonment." It is material to state that the averment does not purport to set forth the sentence in hæc verba; nor was it necessary in this avowry to allege anything more than that part of the sentence which imposed the fine, since that was the sole ground of the justification of taking the goods and chattels in controversy. But there is nothing repugnant in this averment to that which relates to the certificate. The latter properly adds the fact which respects the imprisonment, because the certificate constitutes the warrant to the marshal for his proceedings. The act of 1795 expressly declares that the delinquents “shall be liable to be imprisoned by a like sentence, on failure of payment of the fines adjudged against them, for one calendar month for every five dollars of such fine." If, indeed, it had been necessary to set forth the whole sentence at large, the first omission would be helped by the certainty of the subsequent averment. There is, then, no variance or repugnance in these allegations; but they may well stand together.

Of the remaining causes of special demurrer, some are properly matters of defence before the court martial, and its sentence, being upon a subject within its jurisdiction, is conclusive; and others turn upon niceties of pleading, to which no separate

answers are deemed necessary. In general it may be said of them, that the court do not deem them well founded objections

to the avowry.

Upon the whole, it is the opinion of the court, that the judgment of the court for the trial of impeachments and the correction of errors ought to be reversed, and that the cause be remanded to the same court, with directions to cause a judgment to be entered upon the pleadings in favor of the

avowant.

12 Wh. 39.

OGDEN v. SAUNDERS.

JANUARY TERM, 1827.

[12 Wheaton's Reports, 213-369.]

OGDEN lived in New York, Saunders in Kentucky; Saunders drew on Ogden certain bills of exchange, which were accepted but not paid. Ogden obtained a discharge under the insolvent law of New York which existed when the bills were accepted, and afterwards moved to Louisiana; there he was sued by Saunders in the United States district court, and judgment given for Saunders. Ogden brought the case to the supreme court.

Two questions arose; the first was this, - Does a bankrupt law which applies to contracts made after its passage impair the obligation of those contracts? Upon this, Justices Washington, Johnson, Trimble, and Thompson were of one opinion, and Marshall, Duvall, and Story of another. We give the opinions of Mr. Justice Washington and Chief Justice Mar

shall.

WASHINGTON, J.-THE first and most important point to be decided in this cause turns essentially upon the question, whether the obligation of a contract is impaired by a state bankrupt or insolvent law, which discharges the person and the future acquisitions of the debtor from his liability under a contract entered into in that state after the passage of the act.

This question has never before been distinctly presented to the consideration of this court, and decided, although it has been supposed by the judges of a highly respectable state court, that it was decided in the case of M'Millan v. M’Niel (4 Wheaton's Reports, 209). That was the case of a debt contracted by two citizens of South Carolina, in that state, the

discharge of which had a view to no other state. The debtor afterwards removed to the territory of Louisiana, where he was regularly discharged, as an insolvent, from all his debts, under an act of the legislature of that state, passed prior to the time when the debt in question was contracted. To an action brought by the creditor in the district court of Louisiana, the defendant plead in bar his discharge under the law of that territory, and it was contended by the counsel for the debtor in this court, that the law under which the debtor was discharged having passed before the contract was made, it could not be said to impair its obligation. The cause was argued on one side only, and it would seem from the report of the case, that no written opinion was prepared by the court. The chief justice stated that the circumstance of the state law, under which the debt was attempted to be discharged, having been passed before the debt was contracted, made no difference in the application of the principle which had been asserted by the court in the case of Sturges v. Crowninshield. The correctness of this position is believed to be incontrovertible. The principle alluded to was, that a state bankrupt law, which impairs the obligation of a contract, is unconstitutional in its application to such contract. In that case, it is true, the contract preceded in order of time the act of assembly under which the debtor was discharged, although it was not thought necessary to notice that circumstance in the opinion which was pronounced. The principle, however, remained in the opinion of the court, delivered in M'Millan v. M'Niel, unaffected by the circumstance, that the law of Louisiana preceded a contract made in another state, since that law, having no extra-territorial force, never did at any time govern or affect the obligation of such contract. It could not, therefore, be correctly said to be prior to the contract, in reference to its obligation; since, if, upon legal principles, it could affect the contract, that could not happen until the debtor became a citizen of Louisiana, and that was subsequent to the contract. But I hold the principle to be well established, that a discharge under the bankrupt laws of one

40

government does not affect contracts made or to be executed under another, whether the law be prior or subsequent in the date to that of the contract; and this I take to be the only point really decided in the case alluded to. Whether the chief justice was correctly understood by the reporter, when he is supposed to have said, "that this case was not distinguishable in principle from the preceding case of Sturges v. Crowninshield," it is not material at this time to inquire; because I understand the meaning of these expressions to go no farther than to intimate that there was no distinction between the cases as to the constitutional objection, since it professed to discharge a debt contracted in another state, which, at the time it was contracted, was not within its operation, nor subject to be discharged by it. The case now to be decided is that of a debt contracted in the state of New York by a citizen of that state, from which he was discharged, so far as he constitutionally could be, under a bankrupt law of that state, in force at the time when the debt was contracted. It is a case, therefore, that bears no resemblance to the one just noticed.

I come now to the consideration of the question, which, for the first time, has been directly brought before this court for judgment. I approach it with more than ordinary sensibility, not only on account of its importance, which must be acknowledged by all, but of its intrinsic difficulty, which every step I have taken, in arriving at a conclusion with which my judgment could in any way be satisfied, has convinced me attends it. I have examined both sides of this great question with the most sedulous care, and the most anxious desire to discover which of them, when adopted, would be most likely to fulfil the intentions of those who framed the constitution of the United States. I am far from asserting that my labors have resulted in entire success. They have led me to the only conclusion by which I can stand with any degree of confidence; and yet I should be disingenuous, were I to declare, from this place, that I embrace it without hesitation, and without a doubt of its correctness. The most that candor will permit me to say upon the