Page:United States Reports, Volume 1.djvu/377

366 

1788.

after the Referees has agreed upon their report, though before the actual figning of it. This, however, is not legal objection, becaufe if any part of an award be impoffible to be performed, it appears by a cafe in Salk. 83. that the Court will refufe an attachment for that part. Yet, as the Plaintiff in the prefent cafe would receive the benefit of what the Defendant has done in taking up the fecurity, we fhould certainly think is equitable that he fhould abate fo much out of the money to be recovered, and upon application would oblige him to do it ; and, in general, fee that the report was carried into execution in all its parts, agreeably to that intent of the Referees, and the juftice of the cafe.



N a rule to fhew caufe why the Defendant fhould not be difcharged on common bail, M‘Carty ftated in his depofition, that, being confiderably embarraffed, he had, according to the law of France, declared himfelf a bankrupt by filing  a ftatement of his debts and credits, and delivering all his books and papers into the Confular Court  of L‘Orient, for the benefit of his creditors; the principal part of whom, in confequence of his furrender, had met together, appointed Truftees, or Syndies, in the ufual form, and then granted him a letter of licence for three years, together with a power of attorney, to collect his outftanding debts in America, in order to remit the fame for their ufe ; ftipulating, however, that he fhould return to France within one year from the time of his departure. The Plaintiff, among others, had proved and regiftered his debt in the Confular Court; and, it was agreed by the Counfel for both parties, that, on a furrender of his defcription, it three fourths in value of the creditors had confented to the Defendant's difcharge, the agreement or compofition by them figned, being homologated, that is to fay, recorded and confirmed by the Court of Parliament, (which is a matter of courfe unlefs fraud is fhewn) became by the lex loci  obligatory upon the non fubfcribing creditors.

Ingerʃol, in fupport of the rule, contended, that it was fettled by the decifions in Millar v. Hall (ant.229.)  and Thompʃon vs. Young (ant. 294.)  that a difcharge under the laws of one country, operated as fuch in every other; and he offered to prove by the teftimony of the Defendant himfelf, that three fourths in value (the depofition only ftating that the principal part)  of the creditors had agreed to the compofition at L‘Orient ; obferving, that, if this would be fufficient to induce the Court to order an Exoneretur  after judgment, it would alfo be fufficient to induce them to difcharge the Defendant in the prefent ftage of the caufe.

Du Ponceau,  having read a pofitive affidavit of a fubfifting debt, oppofed the admiffion of the Defendant's teftimony. He faid, that