Ship Grand Turk.

Favourite, considers the inability of a master to sue in the admiralty as arising altogether from his being supposed to stand on the security of his personal contract with his owner, and not relating to the bottom of the ship; and in the case of Wilkins and Carmichael, Lord Mansfield refused to allow the master to retain the vessel, either for wages, stores, or repairs. This was a case in which the master had not parted with the possession, and where his owner had become a bankrupt, whose assignees were plaintiffs in an action of Trover. The whole Court of King's Bench was of opinion, that there was no particular contract that the ship should be a pledge; that there was no usage of trade to that purpose, nor any implication from the nature of the dealing: that on the contrary, the law had always considered the master as contracting personally with the owner.-On this ground, it is added, prohibitions have been granted. Thus we see that this has been treated in England, not merely as a question of jurisdiction, but that it has long been considered by all the tribunals of that country, as a settled principle of law, that a right of proceeding in rem for a claim of this kind never did exist in the master. It has not been shown that such a proceeding was ever sustained by any English Court of Admiralty, even before the act of Richard the Second. But were it not so perfectly and well settled as it is, that the master never had this security for his wages, and the Court was at liberty to adopt a rule of its own, it would hesitate much before it gave to him the remedy which is now sought. If he may thus proceed for wages after the return to the port where the owner resides, he must have the like privilege for wages which may become due in foreign ports, by which an opportunity would be afforded him of breaking up the voyage while abroad, for the purpose, sometimes, of becoming purchaser of the vessel, under a sen

a 2 Rob. Ad. Rep. 232.

Ship Grand Turk.

tence founded on proceedings originating with himself, and where a condemnation might be had before the owner could possibly be apprized of the suit. Were this a proceeding in the admiralty in personam, it might then be worth while to consider whether, notwithstanding the prohibitions which have been awarded in England, and the consequent abandonment or loss of jurisdiction in many cases by the admiralty, this Court would not maintain an action of that kind. If it decided in favour of its admiralty jurisdiction in such a case, it would be introducing no new rule of law, but enforcing one already established, and in a way which, although it may not, for a long time, have been resorted to, could work no injury to either party but where a right to proceed in rem has been so long and so pertinaciously denied, and on grounds which, to say the least of them, are sufficiently plausible, and when it cannot be shown, with any certainty, ever to have existed, this Court feels no inclination to interfere for the purpose of introducing a different rule. It is possible that the English common law courts have first granted prohibitions, on the ground that these being contracts upon land, the admiralty had no right, after the passing of the statute of 15 R. 2 C. 3. to take cognizance of them; but although this may have been deemed a sufficient ground for their interfering in this way, yet we find these Courts invariably deciding, when it becomes necessary, that the master has no right by his contract to any remedy against the vessel, or even any lien on its proceeds, and so the whole Court of King's Bench certified their opinion to be to the Lord Chancellor in the case of Hussey against Chester and others.

The judgment of the Court is, that the sentence of the District Court be reversed, and that the libel be dismissed with costs.

Adams v. Storey.

ADAMS ET AL v. STOREY.

The act of the state of New-York of the 3d of April, 1811, is an insolvent and not a bankrupt law.

Distinction between insolvent and bankrupt laws.-Derived from England, where it has been long established. Those laws defined.

If the act in question, however, had been a bankrupt law, it would not have been void as repugnant to the constitution of the United States. Presumption in favour of the constitutionality of state laws.

The existence of a power in the states to pass bankrupt laws, not incompatible with the powers delegated to Congress for that purpose. The exercise of the powers of the latter would, however, suspend the powers of the former. Importance of bankrupt laws to the larger commercial states, and probability that they intended to retain the right of making their own until Congress could adopt an uniform system. Difficulties attending the adoption of such . system.

Whether a general bankrupt law, including any classes besides traders, would be within the powers granted by the constitution to Congress? Quere. The constitutional provision that "no state shall pass any law impairing the obligation of contracts," does not apply to insolvent laws.

Difficulty attending the application of this provision.

Rules of constitutional construction.

History of the evils which led to the adoption of this and the like restraining provisions. Insolvent laws were not among those evils; on the contrary, they were esteemed beneficial.

Inference from the uninterrupted practice of some of the states in favour of the constitutionality of such laws.

Presumption that contracting parties, being aware of this practice, make their contracts with reference to it.

The retrospective operation of insolvent laws does not bring them within the constitutional provision.

Chronological account of the insolvent laws of New-York. No distinction in any of them between existing and future contracts.

The rule lex loci contractus does not apply to cases of discharge under insolvent laws.

Meaning of this rule. Mischievous tendency of some dicla and decisions arising out of it, proceeding on a mistake in applying it as well to the remedy as to the construction and validity of the contract. Remarks on Smith and Bu chanan, and other cases.

Expediency and justice of insolvent laws.

The defendant made to the plaintiffs at Boston, Massachusetts, while they all resided there, several promissory notes, and afterwards removed to New-York,

Adams v. Storey.

where he was discharged under the insolvent law of that state, of the 3d of April, 1811, which was passed after the making of the notes. Held that his discharge was a good bar to the action.

LIVINGSTON, J. THIS is an action brought on several promissory notes, made or endorsed by the defendant, then residing in Boston, to the plaintiffs, who were then and are yet residents of the same place. The notes are also made payable in Boston, and were dated prior to the passing of the insolvent law hereinafter mentioned.

The defendant pleaded the general issue, and on the trial offered in evidence, pursuant to a notice given for that purpose, a discharge by the Recorder of the city of New-York, dated the 13th of November, 1811, which was granted in virtue of an act of the legislature of the state of New-York, entitled "An act for the benefit of insolvent debtors and their creditors," passed the 3d of April of the same year.

To the reading of this discharge the plaintiffs objected-but it was admitted. A verdict, however, was taken by consent, for the plaintiffs, subject to the opinion of the Court on a case to be made by the parties. If the discharge was improperly admitted, judgment is to be entered on the verdict as it now stands; but if the discharge shall be thought a good bar to the action, the present verdict is to be set aside, and a verdict and judgment thereon entered for the defendant. The defendant, at the time of obtaining his discharge, resided and yet resides in the city of New-York.

Few questions have ever been agitated in any Court of the United States, since the formation of the federal government, of more extensive consequence, or of more delicacy than those which are now to be decided. When the binding force of an act of the legislature of any state is drawn into question for its supposed repugnancy to the federal constitution, although no Court can entertain any doubt of its right to pronounce it invalid, yet it is no more than becoming to proceed with cau

Adams v. Stórey.

tion, and with more than ordinary deliberation. Presumptions will ever exist in favour of the law, for it will not readily be supposed that any state legislature, who are as much bound by the constitution, and are under the same solemn sanctions as the Judges of those Courts, to regard it, have either mistaken its meaning, or knowingly transcended their own powers. If, then, by any fair and reasonable interpretation, where the case is at all doubtful, the law can be reconciled with the constitution, it ought to be done, and a contrary course pursued only, where the incompatibility is so great as to render it extremely difficult to give the latter effect, without violating some provision of the former.

The plaintiff's counsel, in support of the verdict, say, that the discharge which was given in evidence can be no bar to the action. They contend,

1. That the statute of New-York, under which it was obtained, is a bankrupt law, and as such, is void for its repugnancy to the constitution of the United States; and this position is supported by the broad assertion that every law which discharges the person and property, as well future as in possession of the debtor, is a bankrupt law. But to this definition the Court does not assent; for this would be to confound at once almost all the distinctions between these laws, which have been known and recognised in England, from which country we borrow the term, from the first introduction of the system there, in the reign of Henry the Eighth, down to the present time; distinctions which must have been familiar to many of the members of the convention that made the constitution. It is not because these laws may, in some respects, produce the same effects, that they are not to be distinguished from each other. In England the bankrupt system has been confined exclusively to traders, and the creditors of traders;