Scott v. Shreeve.

And he further alleges, that the bank was so well satisfied with this provision, that it considered neither Janney nor Shreeve liable for it. If these allegations were supported by proof, they would go far, if not conclusively, to show, that the bank had adopted Janney as solely responsible for the note, and had discharged Shreeve. If so, the payment by Shreeve would be considered voluntary, and without any legal obligation, and would form no objection to the recovery on the bonds. The bank, however, denies, it was a party to the arrangement made by the deed of the 11th of August 1808, or that it made any stipulation or agreement with Shreeve or Janney, in any manner connected with that deed, unless the order of the 12th of January 1809 (the letter of license), be considered as connected with it. The answer further denies, that the bank ever did release, or agree to release, Shreeve, or that it ever did look solely to Janney, or the trust-estate created by the deed of the 11th of August 1808. It admits, that when this deed was executed, Janney and Roberts were both directors of the bank, but avers, that no proposition in relation to it ever came before the board, previous to the 12th of January 1809, when the letter of license was granted to Shreeve, with the concurrence of Janney and Roberts, sitting and acting as directors of the bank.

*The answer of Scott is not evidence against the bank, and his [*610 allegations with respect to the bank's having accepted Janney as the sole debtor for this note, are entirely unsupported by proofs, and must be laid out of view, as they are positively denied by the answer of the bank, and which answer is strongly supported by the order for the letter of license, which was granted subsequent to the arrangement between Shreeve and Janney. For, if the bank had considered Shreeve exonerated from the payment of the note, there could have been no necessity for, or propriety in, giving him a letter of license. Indeed, it would have been absurd, to give a letter of license to a man who was not a debtor to the bank. The order for this purpose is cautiously drawn, so as to retain the responsibility of both maker and indorser. The indulgence is granted expressly upon the condition that it is sanctioned by Janney, and without lessening the right of the bank against him.

Nor is the bank chargeable with negligence that can in any manner prejudice its rights, or of which the appellant has any right to complain. The indulgence was granted, with the concurrence of Janney, and under an impression, no doubt, by all parties, that the trust fund created by the deed. of the 11th of August 1808, would be sufficient to satisfy this note. And it was upon this supposition, no doubt, that the letter of license for seven years was granted to Shreeve. No steps would be taken against him, until the expiration of that time, and demand of payment was made as soon thereafter as he returned to Alexandria. The utmost, then, that can be alleged against the bank is, that it had full knowledge of the provision made by the deed of the 11th of August 1808, for the payment of this note. And admitting that provision to have been amply sufficient, it would not bind the bank, without its assent, to resort to that fund alone, and discharge the parties to the note. The bank could have no objection to the provision made by that deed for the payment of the note, as it would add to its security, if the maker and indorser were also held responsible. And the proceedings in relation to the letter of license are conclusive to show, that it was the understanding of

Ramsay v. Allegre.

all parties, that the bank had not, at that *time, relinquished its claims upon Janney and Shreeve for the payment of the note.

We are, accordingly, of opinion, that the decree of the court below, granting a perpetual injunction against the appellant, and a dismissal of the bill as to the bank, be affirmed, with costs.

Decree affirmed.

RAMSAY V. ALLEGRE.

Jurisdiction of the admiralty.

Quare? Whether a suit in personam in the admiralty may be maintained against the owner of a ship, by material-men furnishing supplies for the ship, in her home port, where the local law gives no specific lien upon the ship which can be enforced by a proceeding in rem ? However this may be, in general, such suit cannot be maintained, where the owner has given a negotiable promissory note for the debt, which is not tendered to be given up, or actually surrendered, at the hearing.

APPEAL from the Circuit Court of Maryland. This was a libel filed in the district court, by the appellant, Ramsey, against the respondent, Allegre, alleging that the appellant, at the special instance and request of the respondent, owner, ship's husband, or consignee of the schooner Dorothea, had performed various work and labor, and found and provided various materials for the use of the said schooner, to equip and prepare her for a voyage on the high seas, amounting to the sum of $2428.84; that the appellant had often applied to the respondent for payment, and been refused; and praying process according to the course of the admiralty, &c.

A plea was filed by the respondent, alleging, among other things, that he had given the libellant his negotiable promissory note for the debt. It appeared, at the hearing, that the appellant had furnished the materials in question, at the respondent's request, and *that the latter had given *612] his negotiable promissory note for the same, which the appellant accepted, giving the following receipt therefor: "Received a note, at four months, which, when paid, will be in full for the above amount." The note not having been paid, this suit was brought. The district court dismissed the libel, upon the ground, that the jurisdiction of that court, as an instance court of admiralty, in the cause, was waived, by the acceptance of the promissory note; and the decree having been affirmed in the circuit court, upon the same ground, the cause was brought by appeal to this court.

February 19th. The Attorney-General and Meredith, for the appellant, argued, that the district courts, proceeding as courts of admiralty and martime jurisdiction, might take cognisance of material suits by material-men, either in personam or in rem. The General Smith, 4 Wheat. 438. The only question here was, whether the jurisdiction was waived, by the appellant's taking the note as conditional payment. The note did not extin guish the debt, and, consequently, could not affect the jurisdiction which originally attached on account of the nature of the debt. Without some special agreement to consider the note as payment, it could not be so regarded. It only operated as a suspension of the remedy, during the time allowed for its payment. If unpaid the party might resort to his original right of action, as if no note had been given. Chit. on Bills (5th ed.) 123, 130; 6 Cranch 253; 2 H. Bl. 317; 5 T. R. 141; 1 Evans' Pothier 380 a.

Ramsay v. Allegre.

Such is the doctrine of the common law; and the civil law, which gave the rule to the admiralty, would be found in accordance. A novation is the substitution of a new for an old debt, by which the latter is extinguished. It may be made of a debt payable at a future day, or of a debt presently due, by a new engagement, allowing a term of credit. But the consent of the creditor must be positively declared, as the law will not presume that he means to abandon his rights under the first contract. Evans' Pothier 380, 385. No authority or principle could be found, to warrant *the assertion, that, although the original contract in this case was not [*613 extinguished, the suspension of the right of action took away the jurisdiction of the admiralty, so that it could not again be resorted to.

Hoffman and Meyer, contrà, insisted, that the promissory note given in this case was a personal security, taken on land, and in all respects assimilated the case to that of the claim for the master's wages. Although, in general, locality might not be the test of admiralty jurisdiction, it might reasonably be contended, that where the credit is personal, and the security of a kind exclusively cognisable at common law, the locality should fix the jurisdiction. In the case of contracts, the admiralty jurisdiction, in personam, ought to be merely co-extensive with the proceeding in rem: and as the domestic character of the vessel freed the thing from jurisdiction, the person of the owner ought also to be exonerated. 4 Wheat. 438. As a security had been accepted, which had the effect of extinguishing a common-law lien, during the term of the note, no process could have been instituted in the admiralty, on the original contract; and the idea of reviving a jurisdiction, which had been thus suspended, was a novelty not countenanced by any legal analogy. Supposing the jurisdiction of the admiralty to be dependent upon the existence of a lien, as defined by positive law, the authorities would show, that such a lien was extinguished at common law, by a new agreement. Yelv. 66; Selw. N. P. 1163; 3 Burr. 1498. It had been expressly determined, that in cases of dealings or obligations, naturally within the appropriate jurisdiction of the admiralty, if a special contract be entered into, or a special security be taken, the common-law jurisdiction will attach, as in ordinary cases, even though the new agreement does not operate technically by way of extinguishment. 4 Burr. 1950; 1 Peters' Adm. 238; 6 T. R. 320; 2 Bro. Civ. & Adm. Law 88, 97; 1 Salk. 31.

March 2d 1827. MARSHALL, Ch. J., delivered the opinion of the court: that, as it did not appear by the record, that the note had been tendered to be given up, or actually surrendered, *at the hearing in the court below, the decree would be affirmed, it not being necessary to consider the general question of jurisdiction.

[*614

JOHNSON, Justice.-I concur with my brethren in sustaining the decree below, but cannot consent to place my decision upon the ground on which they have placed theirs. I think it high time to check this silent and stealing progress of the admiralty, in acquiring jurisdiction to which it has no pretensions. Unfounded doctrines ought at once to be met and put down ; and dicta, as well as decisions, that cannot bear examination, ought not to be evaded and permitted to remain on the books, to be commented upon, and acquiesced in, by courts of justice, or to be read and respected by those

Ramsay v. Allegre.

whose opinions are to be formed upon books. It affords facilities for giving an undue bias to public opinion, and, I will add, of interpolating doctrines which belong not to the law. There need be no stronger illustration given than this case affords. Here is a libel in personam, on a contract, in the admiralty, filed expressly upon the authority of the case of The General Smith. I had never read the report of that case, that I recollect, until the argument in this cause; or, if I had, I attached so little importance to anything in it, besides the point that it decides, as to have forgotten that such doctrines were to be found in the reports of our decisions. But, upon being examined, what does it amount to? A gentleman of the bar, whose knowledge, particularly in the admiralty, commanded the highest respect in this court, is reported to have laid down a doctrine, in very explicit terms, which, I will venture to say, has no authority in law; and the court, carried away probably by the influence of his concessions, echoes them in terms which are not only not called for by the case, but actually, as I conceive, contradicted by the decision which is rendered.

The correctness of the decision in the case of The General Smith, cannot be questioned; it dismisses the libel, upon the ground, "that material-men and mechanics, furnishing repairs to a domestic ship, have no particular lien upon the ship itself for the recovery of their demands." *But why *615] have they no lien upon the ship? or, to speak more correctly, why are they precluded from a remedy in the admiralty, for subjecting the ship to arrest and sale in order to satisfy their demands? It is because jurisdiction over the contract has been taken from the courts of admiralty, and the exercise of jurisdiction, in such a case, prohibited to them by the common-law courts of Great Britain, for hundreds of years. And it is a fact of the most positive certainty and notoriety, that so far from retaining jurisdiction over this contract in personam, after being driven from jurisdiction in rem, that the former was first surrendered, and that in the most unequivocal terms.

I refer to the resolutions of February 1632, adopted by the king in council, and subscribed by all the judges in England, and to be found in the collection of the sea laws, and in various other books; by the second section of the second article of which it is declared, that "if suit be in the court of admiralty for building, or mending, saving, or necessary victualing of a ship, against the ship itself, and not against any party by name, but such as for his interest makes himself party (i. e. a claimant), no prohibition is to be granted, though this be done within the realm." This resolution implies an express recognition, that if such suit be instituted against the person, a prohibition shall issue. And this I hold to be the test of admiralty jurisdiction; for wherever a prohibition will issue, the jurisdictiou has been taken away from the admiralty, or it never possessed it. And, accordingly, for two hundred years has this jurisdiction been abandoned by the British courts, with the single exception of seamen's wages; an exception, of which it may emphatically be said, “probat regulam." For, if any one will take the trouble to refer to the language of Ch. J. HOLT, in the case of Clay v. Snelgrave, he will there find it said, "that it is an indulgence that the courts at Westminster permit mariners to sue for their wages in the admiralty court, because they may all join in suit, and is grounded upon the principle, that 'communis error facit jus.'" (1 Ld. Raym. 576.) This privilege is denied to the master, and even to a mate succeeding to the master, when he

Ramsay v. Allegre.

sues for his wages as *master; so rigid are the courts of Westminster in confining the admiralty to the few contracts over which it is permitted to retain jurisdiction. And when it is argued, that this discrimination to the prejudice of the master, is confined to his suit in rem, and that no case can be found, in which his remedy in personam, in the admiralty, has been denied him, it becomes necessary to remind counsel, that this may have proceeded from no one's ever having had the temerity to prefer such a suit-a consequence which would necessarily follow from what I hold to be undeniable, that, except on the contract for seamen's wages, the proceeding in personam upon contracts, is now unknown to the British admiralty tribunals.

I will sketch a brief history of the admiralty jurisdiction over contracts, and a view of its present state. The study of the history of the admiralty jurisdiction in England, in common with that of all the courts of that kingdom, except the common-law courts, presents an instructive lesson on the necessity of watching the advancement of judicial power, in common with all power; inasmuch as it shows in what small beginnings, and by what indirect and covert means, aided by perseverance and ingenuity, originated the mighty structures against which, ultimately, the legislative and judicial. power of the country had to exert the full force of their united efforts. The vast variety and importance of the subjects which the admiralty had appropriated to itself, will appear in a variety of authors; but I would refer the reader to Godolphin's "View of the Admiral Jurisdiction," as well for its antiquity, as the great learning and respectability of the author. There, it will be seen, that the admiralty, before the time of Richard II., had arrogated to itself a scope of judicial, legislative and ministerial power, which withdrew from the trial by jury, and placed under the surveillance of the crown, of which the admiralty was only the representative, more than half the jurisprudence, and particularly, the commercial jurisprudence of the kingdom.

[*617

The statutes of the 13th and 15th Richard II. were passed, to set limits to this power, but such was the stability it had already acquired, that it was not until the act of 2 Henry IV., c. 11, *which gave to the subject exactly the right which the constitution of the United States gives to its citizens, against unconstitutional laws, was passed, that this overgrown power could be effectually restrained. For it could then no longer prescribe its own limits, in prejudice of the individual, and to the exclusion of his common-law rights. Neither the king nor his proctor could any longer justify or secure the individual who resorted to the admiralty, in a case in which the common law could give redress. (3 Levinz 353.) The act of 13th Richard says, upon complaint of encroachments made by the admirals and their deputies, it is enacted, "that the admirals and their deputies shall meddle with nothing done within the realm, but only with things done upon the sea ;" and the 15th Richard, c. 3, "that in all contracts, pleas and quarrels, and other things done within the bodies of counties, by land or water, the admiral shall have no cognisance, but they shall be tried by the law of the land." And the 2d Henry IV., c. 11, provides, "that he that finds himself aggrieved against the form of the statutes of Richard, shall have his action by writ grounded upon the case, against him that so pursues in the admiralty, and recover double damages."