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Colonial Cases

The Barque Vesuvius v. Olyphant and Co., 1879

[costs]

The Barque Vesuvius v. Olyphant and Co.

United States Consular Court, Shanghai
Bailey J., 29 January 1879
Source: The North China Herald, 31 January 1879

 

UNITED STATES CONSULATE GENERAL.

Shanghai, 29th Jan.

Before D. H. BAILEY, Esq., Judge, Vice-Consul-General.

THE BARQUE VESUVIUS v. Messrs. OLYPHANT AND CO.

   Mr. J. J. HENDERSON appeared for the plaintiff.

   Mr. WAINEWRIGHT appeared for the defendant.

   In this case judgment has been given in favour of the plaintiff, who now applied by motion, through his Counsel, for an extra allowance of costs.

   Mr. HENDERSON, at the outset, read the motion, which asked for the costs of the action including Counsel's fee, &c., to be taxed, and that execution be forthwith issued for the sum together with the  amount of the decree rendered, against the funds of the defendants in the Registry of the Court, from the sale of furniture previously attached.  In support of the motion he said that, as the Court was aware, this was a case in Admiralty for breach of contract of affreightment, - a suit for  damages in personam for a breach of contract of affreightment.  The proposition he had to lay before the Court was this, that while the statutes of the United States fixed a certain sum for costs and counsel's fee, which were always allowed, there were cases of importance, cases invoking complicated and important questions, in which the Court could grant a larger sun, and the present case, he maintained, was one of that class.

   He understood that the Court had decided that the claim on behalf of the Vesuvius was a suit in Admiralty; consequently the law of the court of Admiralty governed the proceedings in the case.  He would briefly recite some of the circumstances, which, in his opinion, justified the Court in fixing a fee for Counsel larger than the statutory fee.  The facts were all known to the Court as to what had been done by the libellant, and as to what he had had to pay; and he would specially draw attention to the time, labour, and research that were involved in the preparation of an application to Her Majesty's Supreme Court, for the endorsement of the warrant of attachment issued by this Court.  That was a matter which the Court must be well acquainted with, ands as proof that the defendants necessitated all this trouble and research by their breach of contract and by the peculiar way in which they had placed their property within this district, he had only to refer to the documents which had been filed.  Then, after the preparation of the libel, research had to be made on the question of the conflict of jurisdiction and the mutual action of independent Courts in China; and subsequently a day was spent in arguing the motion  for the stay of execution, which motion it must be remembered was over-ruled. He mentioned these facts to illustrate the peculiarities of the case, and though the sum claimed was small in amount very important principles were involved.

   In support of the proposition that the Court was a Court of Admiralty and had authority to award a ,larger sum as Counsel's fees in the taxation of costs, he cited the 823rd  and 824th sections of the Revised Statutes, which he contended expressly provided for a Counsel's fee of $20 to be allowed in all cases of Admiralty where the amount awarded in the judgment exceeded $50, and when it was under that amount the fee to be allowed was only $10.  He next referred to Conkling's work on Admiralty, pages 438 and 439,  to show that the Court had discretionary power to allow a larger amount than $2o0, either as damages or costs, and a case was cited in which the Supreme Court of the United States, on appeal, upheld an allowance of $500 for Counsel's fees.  In conclusion, he urged that this being a suit in Admiralty for breach of contract of affreightment, and considering the peculiar position in which the defendants' had placed their property, necessitating great labour and trouble in research under the circumstances he had narrated, the case was purely one in which, under the rules and practice of the Court of Admiralty, and the decision of the Supreme Court which he had cited  from Conkling on the question, a larger allowance than $20 should be made.

   Unquestionably the Statutes provided for a fee of $20, and unquestionably under the rules of the Court of Admiralty which governed the case, the Court has discretionary power not only to give more costs in the  sense of costs, but to allow it as damages if the libellant had suffered by the breach of contract, and certainly it was to be assumed that he would have to pay something for the professional services rendered him in  prosecuting his claim.

   Mr.  WAINEWRIGHT, on behalf of the defendants,   said he understood Mr. Henderson's  proposition to be, that he having found it necessary to make research to inform himself of the law of the case, he ought to be paid something extra.  To him this was a most amazing proposition, and he should be very glad, when he found that his knowledge of the law was defective, to know that he w as to be compensated by the number of hours he spent in research to rectify his deficiencies. It was a most novel theory on the part of his learned friend, and one he was afraid would not have much weight with the Court.

   There were cases of course where it was necessary for them to look up the law, but he had never heard that they were entitled to be specially paid for the time spent in doing so; he had always thought that when they were admitted to practice they were supposed to know the law.  It might be fiction, however, but nevertheless he had never heard that they were entitled to compensation  either from their adversary or their own clients for time spent in reading up what they were supposed to know. 

   With regard to the application to the British Court which his friend had claimed as another reason for the payment of extra fees, he submitted that it was scarcely an operation which ought to be paid for by the defendants in this case.  If anybody had to pay the costs of the application he thought it was the Chief Justice of the British Court, and he failed to see how his learned friend could expect to make the defendants pay the cost of an unsuccessful application by him to another tribunal.

   His learned friend had also  said that by some course of proceedings which he did not explain, the defendants had placed their property in a peculiar position.  The real facts were that when they suspended payment they had very little money, and having paid it into their bank account it had caused some trouble. They owed a small balance to the Captain of the Vesuvius for freight, and there was no doubt it would have been paid, but the representatives of the firm here suddenly received news that the firm in New York was in difficulties, and they paid the assets they had into the bank, and unfortunately the bankers had refused to honour their cheques.

   He had now referred to the principal points raised by his learned friend, and apart from what he had said in reply thereto he submitted that the court had already pronounced judgment bin the case, and had expressly stated that it did not see its way to introduce a novelty into its proceedings. The Court had decided that it did not feel warranted in taxing a Counsel's fee in the costs, and he did not think it right, after such a decision had been given, that the parties should be put to the expense of re-opening the matter, especially when the successful party  was not percent when the judgment was given.

   Of course in a matter of this kind the material point to be gained was the Counsel's fee, and the Court having decided thins point in its judgment, it was a great hardship for the question to be re-opened, and he should be very glad to no=know if the court could decided who was to pay his costs for now attending, as the plaintiff appeared from the wording of the motion to be an inanimate barque.  It was an inanimate barque that was barking on this motion, and he hoped it would have to pay the costs of the application.

  Referring again to the judgment of the Court that had been given, he said it was inconvenient to introduce a new line of practice without notice.  Several admiralty suits had been disposed of in the Court, and he was certain that on no single occasion had a Counsel's fee been allowed until Mr. G. Wiley wells presided in the Court, and then $20 were allowed in one or two cases in which it was specially prayed for, and it if was not specially prayed for only the bare costs of the Court were allowed.  It would be most inconvenient and unjust to introduce a new principle without due notice, and on that ground alone the motion, he contended, should be dismissed; but at the same time he should be pleased if a new and regular system of taxing costs could be inaugurated.  He had nothing to say against his fiend being remunerated at the expense of unsuccessful litigants, but  due notice should be given of any new practice that might be introduced.

   Mr. HENDERSON, in replying, said it seemed to him that Mr. Wainewright had not read the original libel in the case, for if he had he could not possibly say the plaintiff was an inanimate barque, for it was plainly set forth that the plaintiff was F. W. Call, the master and agent of the barque. 

   With reference to what had been said about introducing a new system into the working of the court, he maintained that the laws of the United States should have been administered in their entirety since the first treaty with China, and if the Court had seen fit in the past not to exercise the law governing its jurisdiction,  he failed to see that it would continue to ignore positive enactments of Congress. 

   It had been decided that this was a Court of Admiralty, and the course of Admiralty therefore prevailed and governed its proceedings.  The regulations of the Minister at Peking were made to supply deficiencies consequent on the peculiarity of the situation and not to supersede positive enactments of Congress.   Those regulations came in only where the enactments of Congress failed, and when the enactments  did not fail the regulations should not be taken into consideration; and to govern this case there was a direct and positive act of Congress. It had been decided by the judgment in this case that the Court was a Court of Admiralty, and therefore the law and the practice of the courts of Admiralty in the United States prevailed and superseded the regulations made by the Minister at Peking.  In matters of Admiralty, Equity and Common Law, the Court stood on the same footing as the Courts of the United States; and when proceeding in Admiralty, as they were now doing, they must follow the peculiar remedy which had stood for thousands of years, and which was the only remedy to meet the necessities of cases like the present one.

   There could be no question that the Court had the same power as Admiralty Courts in the States, and on the authority of Conkling - if the Court requited any authority at all - it should not follow the course adopted in the past and think its hands were tied; it was clearly at liberty to exercise full power, and was  empowered by the decision he had cited of the Supreme Court of the United States to con sent to the terms of the motion, either in the sense of damages to the libellant or as part of the costs of the case.  He had noting more to say beyond mentioning that the libellant was expected to leave shortly, and that it would be detrimental to his interests of he was detained on account of this case;  therefore he had to ask that the Court would give its decision at its earliest convenience.

   The COURT said the question had been considered in the judgment that had been already rendered, and it was not disposed to alter the decision then given.

   Mr. HENDERSON understood that the remark made by the Court at the end of the judgment was not a final disposition of the question, and he begged to remind the Court that in Admiralty an application to set aside judgment could always be made within a reasonable time.  He was not present when the judgment was delivered, and he understood that the Court was then not sufficiently informed to give a final decision on the question of costs and the Counsel's fee.

   The COURT said in deciding as it had done in the judgment upon the question of costs two points suggested themselves.  First that it had not been the practice of the Court to tax such costs as were asked for in the motion and to follow the precedent that had been established.  Counsel's fee had not been allowed.  It was thought best not to change that precedent without mature deliberation as to the law and authorities.

   The second question which arose had reference to the law which governed the district and circuit Courts of the United States, and the point was as to how far that law could be extended beyond those Courts.  He found in Benedict, in page 481, precisely the same principle laid down as had been cited by Mr. Henderson, namely an allowance of $20 when a larger amount than $50 was awarded; but it applied only to Circuit and District Courts, and he should not like to alter the precedent that had been followed for so many years in this Court without mature deliberation and due notice given.

   Mr. HENDERSON asked what evidence there was before the Court as to the practice followed in the past.

   The COURT replied that there were the records which spoke for themselves, and he had carefully examined them.  There had been several Admiralty cases before the Court, and he did not feel himself warranted in changing the practice or precedent of the Court, as the presumption was that it had acted under what was conceived to be the law.  Before judgment was given, the question of costs was considered, and he did not feel authorised to change the precedent established except upon a full recital of the law and authorities bearing on the matter.

   Mr. HENDERSON pointed out that the authority quoted by the Court had been repealed except that part of it which was embodied in the Revised Statutes.  He also said he had no notice of the time judgment was to be delivered, otherwise he should have been present.'

   The COURT repeated that upon the law and fact as at present presented, of which Counsel had notice, he did not feel disposed to disturb the precedent which had been established in the Court so long, except on a clear showing that it was proper and right to disturb it, ands there was no such showing at present; therefore the matter would rest as determined in the judgment.  It was perhaps desirable that there should be some alteration as regarded the taxing of costs and the allowance of counsel's fee, but it could only be made after mature and careful consideration of the law and the authorities.

   Mr. HENDERSON gave notice of appeal.

 

Source: The North China Herald 31 January 1879

UNITED STATES CONSULATE GENERAL.

Shanghai, 25th Jan.

Before D. H. BAILEY, Esq., Judge, Sitting in Admiralty.

THE BARQUE VESUVIUS                v. OLYPHANT & CO.

Judgment.

   THE COURT - There are two cases to be disposed of today, and I will first dispose of that of the barque Vesuvius against Messrs. Olyphant and Co.  It is on a motion by Counsel for respondents, and as the questions raised are of much importance, I have gone into the subject somewhat at length, which I think is necessary.

   This is a case in Admiralty by the barque Vesuvius, of Richmond, State of Maine, against W W. Parkins, et al., composing the firm of Olyphant and Company, citizens of the State of New York, by a suit in personam for balance of freight, due on a charter party for a voyage from New York to Shanghai, the contract to be executed at the latter port.

   This being a suit in personam, a warrant of arrest and attachment issued in accordance with Rule 11 of the Rules of Practice of the Courts of the United Sates, in cases of Admiralty and maritime jurisdiction and prescribed by the Supreme Court of the United Sates, as follows:

In  suits in personam, the mesne process may be by a simple warrant of arrest of the person of the defendant in the nature of a capoas; or by warrant of arrest in person of the defendant, with a clause therein, that if he cannot be found, to attach his goods and chattels to the amount sued for in the hands of the garnishee named therein; or, by a simple motion in the nature of a summons to appear and answer to the suit, as the ,libellant shall, in his libel, or information, pray for or elect.

Upon this warrant of arrest and attachment, goods of the respondents were duly attached.

    Afterwards, on the day of hearing, the respondents appeared by one of the partners, and by counsel, whereupon a judgment in accordance with the pleadings and on motion of counsel for libellant was taken by consent of respondents for the sum of Taels four hundred and sixty-nine 85/100 (Tls. 469.85.)

   Now the respondents by counsel file a motion asking the court to stay execution until such time has elapsed as may be necessary for the procuring from the United States particulars and evidence of proceedings now pending in the United States for the general liquidation of the respondents' estate, or until the further order of this Court.

   This motion is supported by an affidavit based upon a telegram from New York to the effect that the respondents have made an assignment under the laws of the State of New York for the benefit of insolvent debtors.

   The counsel for the respondents on his argument relied chiefly upon the 55th Rule of the regulations for courts of the United States in China, promulgated April 23rd, 1864, and it is urged that under the wide powers given by that rule, this Court should nor be controlled in its decisions by the ordinary technicalities which control Courts in the United States, but should in the exercise of a wide discretionary power stay execution until it can be ascertained as to the nature of the assignment by the firm in New York to Olmsted, assignee.

   Incidentally, it seemed to be argued by counsel for the respondents that this is not an Admiralty case,

   Counsel for the libellant also argued that this Court never possessed jurisdiction as a Court in Bankruptcy.

   Without stopping to consider at length threes last two propositions, as I do not deem it necessary to decide them upon this motion, it may, however, be remarked that by the uniform decisions of the Supreme Court of the United States such cases as this have been held to be admiralty cases, belonging to the admiralty jurisdiction.  I refer to the learned decision of Mr. Justice Grier, who delivered the opinion of the Court, in 23 Howard, in the case of Morewood at al. v. Euequist, pp. 491-495, cited by Counsel for libellant; and to the later decision of the same Court, in October, 1877, in the case of Ex parte Easton et al., where Mr. Justice Clifford, delivering the opinion, reaffirmed the same doctrine.  Reference is also made to Benedict's Admiralty, pas. 286-287.

 One quotation from Mr. Justice Grier's decision in 23 Howard will suffice.  He says, page 493,

In the argument in this Court, the counsel, without abandoning the original defence, have expended much learning and ingenuity in an attempt to demonstrate that a Court of Admiralty in this country, like those of England, has no jurisdiction over contracts of charter party or affreightment. .  .  .

   We do not feel disposed to be again drawn into the discussion of the arguments which Counsel gave reproduced on this subject.  The case of the New Jersey Steamboat Company v. the Merchants' Bank of Boston (6 How, p. 334) was twice argued (in 1847 and 1848) at very great length.  The whole subject was most thoroughly investigated both by Counsel and Court.  Everything connected with the history of Courts of Admiralty, from the reign of Richard the Second to the present day - everything which the industry, learning, and research of most able Counsel could discover, was brought to our notice.  We then decided that charter parties and contracts of affreightment are 'maritime contracts,' within the meaning and construction of the Constitution and Act of Congress, and cognizable in Courts of Admiralty by process  either in rem or in personam.

   As to the question  of the jurisdiction of this Court in bankruptcy, under the Act of 2nd March, 1867, while not necessarily assenting to the doctrine that during the existence of that Act this Court did not have jurisdiction in Bankruptcy, now that the Act has been repealed it does not seem essential to decide that point.

   Many questions of law were presented by Counsel which I do not think necessary now to consider in order determining this motion.

   Respondents' counsel raises the objection that there are no official advices of the repeal of the Federal Bankruptcy Act, approved March 2nd, 1867.  Of the fact that the Act has been repealed, the Court is bound to take judicial notice.  I shall follow the rule laid down in 1st Greenleaf, pars.  5 and 7:-

In like manner, the law of nations, and the general customs and usage of merchants, as well as the public statutes and general laws and customs of their own country, as well ecclesiastical as civil, are recognised, without proof, by Courts of all civilised nations.  .  .  .

   In fine, Courts will generally take notice of whatever ought to be generally known, within the limits of their jurisdiction.  In all these and the like cases, where the memory of the judge is at fault, he resorts to such documents of reference as may be at hand, and he may deem worthy of his confidence.

   It is a matter of universal notoriety that the Act of Congress, March 2nd, 1867, to "establish a uniform system of Bankruptcy," was repealed at the second session of the 45th Congress, the repeal to take effect on the 1st day of September, 1878.

   And I may mention incidentally that I happened to be in Washington   during the prolonged discussion concerning the Act, and at the time of its repeal.  The solid interests of the country demanded its repeal, and for reasons similar to those now being brought forward in England against the Bankruptcy Laws of that country.

   There being then no longer a uniform system of Bankruptcy throughout the United States, all proceedings in insolvency must necessarily be under the various insolvent acts of the several States.  The affidavit then with reference to Olmstead, assignee, can have no other meaning than that proceedings in liquidation have been instituted by Olyphant and Company, as citizens of New York, under the insolvency law of that State, and upon this state of the law and facts, I am asked to stay execution in this case, in an action in admiralty between the Vesuvius belonging to the State of Maine, and Olyphant and Company, merchants, citizens of New York.

   Concerning the 55th Rule, upon the wide discretionary powers of which the learned counsel so strenuously insists in support of the motion, I must say that I think that rule ought not to be too liberally construed.  In my judgment, the Court should follow in the paths marked out and defined by the expounders of law.  The statutes, the common law, admiralty, and equity, all given to the Court by the Act of Congress, are ample in law ands conscience for all needful authority without having recourse to capricious dicta based upon extreme views of power under the 55th Rule.

   Counsel for the respondents cites a case in this Court, Vol. 16, p. 97, North China Herald, in which the Court granted a stay of proceedings upon a certificate of bankruptcy of the defendants, issued by the United States District Court of Massachusetts, under the Act of Congress, and it is urged that the precedent then established in such cases should not now be set aside.  But there was then a uniform system of bankruptcy in operation, under the Act of Congress; that Act is now repealed, and there is no bankrupt law necessarily operative as between citizens of different States.  The state of the law is wholly different in the two cases.

   It is insisted by counsel for the libellant that an attachment in Admiralty for freight is a secured lien, and would be allowed as a preferred claim in Bankruptcy.  It was held in the "Young Mechanic," 2 Curt., 404  s.c., Ware 535, that "a maritime lien is a jus in re, constituting an incumbrance on the property, and it is not divested by the death or insolvency of the owner."

   But the more precise question involved in this motion, viz., that the insolvent laws of one State cannot discharge the contracts of citizens of other States, has been frequently decided by the Supreme Court of the United States, and must now be considered as settled.  The libellant belong to the State of Maine, the respondents as citizens of the State of New York have instituted proceedings of assignment under the insolvent laws of that State; the contract was made in New York between citizens of different States, and it was to be executed in a foreign country, i.e., Shanghai.

   Judge Story, in his "Conflict of Laws," par.   280,   says:-

The rule was fully recognised ands acted on in a recent case by the Supreme Court of the United Sates, when the Court said that the general principle relative to contracts made in one place to be executed in another was well settled; that they are to be governed by the laws of the place of performance.

There being no Federal Bankruptcy Law in operation, it cannot be said that the insolvent laws of the State of New York are imported into the contract here at the place of its performance.

   The subject as to the effect of the insolvent laws of a State, between citizens of different States was elaborately reviewed by the Supreme Court in the vase of Baldwin versus Hale, 1st Wallace, p. 223, cited by counsel for libellant.  Mr. Justice Clifford, in  delivering thebe opinion, among other things said:-

Controversies involving rhea constitutional effect and operation of State insolvent laws, have frequently been under consideration in this court, and unless it be claimed that constitutional questions must always remain open, it must be considered, we think, that there are some things connected with the general subject that ought to be regarded as settled and forever closed.

   State legislatures have authority to pass a bankrupt or insolvent law, provided there be no Act of Congress in force establishing a uniform system of bankruptcy conflicting with such law; and provided the law itself be so framed that it does not impair the obligation of contracts.  Such was the decision of this Court in Sturgess v. Crownshield, 4 Wheat., 122, and the authority of that decision has never been successfully questioned.

   Eight years later, the question in all its phases was again presented to this Court in the case of Ogden v. Saunders, 12 Wheat., 213, and was very fully examined.  Three principal points were ruled by the Court.

   First, the Court held that the power of Congress to establish uniform laws on the subject of bankruptcies throughout the United States did not exclude the right of the States to legislate on the same subject, except when the power had been actually exercised by Congress, and the State laws   conflicted with those of Congress.

   Secondly, that a Bankrupt or insolvent law of any State which discharges both the person of the  debtor and his future acquisition of property, was not a law impairing the obligation of contracts so far as respects debts contracted subsequent to the passage of such law.

   Thirdly, but that a certificate of discharge under such law cannot be pleaded in bar of an action brought by a citizen of another State in the Courts of the United States, or of any other State than that where the discharge was obtained.

   Taken altogether, these several explanations ought to be regarded as final and conclusive.  Assuming that to be so, then, it was settled by this'd Court, in that case (Cook v. Moffat et al., 5 How. 310) -

  1. That the power given to the United States is not exclusive.
  2. That the fair and ordinary exercise of that power by the States does not necessarily involve a violation of the obligation of contracts, multo fortiori, of posterior contracts.
  3. But, when in the exercise of that power, the States pass beyond their own limits and the rights of their own citizens, and act upon the rights of citizens of other States, there arises a conflict of sovereign power and a collision with the judicial powers granted to the United States, which renders the exercise of such a power incompatible with the tights of other States, and with the constitution of the United States.

   Defendant pleaded his discharge under the insolvent law of New York, passed prior to the date of the contract.  Evidently, therefore, the question presented was, whether a discharge of a debtor under a State insolvent law was valid as against a creditor or citizen of another State, who had not subjected himself to the State laws otherwise than by by origin of the contract, and the decision in express terms was that such a proceeding was incompetent to discharge a debt due a citizen of another State.

    Judge Story says, in the case of Springer v. Foster et al., 2 Story, C.C. 387, that "the settled doctrine of the Supreme court is that no State insolvent law can discharge the obligation of any contract made in the State, except such contracts are made between citizens of that State." He refers to the case of Ogden v. Saunders to support the proposition, and remarks, without qualification, that the doctrine of that case was subsequently affirmed in Boyle v. Zacharie, where there was no division of opinion. In the last mentioned case he gave the opinion of the Court, and he there expressed substantially the same views.  Confirmation of the fact that such was his opinion may be found both in his Commentaries on the Constitution, and in his treatise entitled "Conflict of Laws." His view as to the result of the various decisions of this Court is, that they establish the following propositions:-

  1. That State insolvent laws may apply to all contracts within the States between citizens of the State.
  2. That they do not apply to contracts made within the State to contracts made within the State between a citizen of the State and a citizen of another State.
  3. That they do not apply to contracts not made within the State:" (2 Story on Const., sec. 1390 (3rd ed.), p. 281: Story on Confl. L., sec 341, p. 573).

   Chancellor Kent also says "that the discharge under a State law in not effectual as against a citizen of another State who did not make himself a party to the proceedings under the law.  Insolvent systems of every kind partake of the character of a judicial investigation.  Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right must first be notified.  Common justice requires that no man shall be condemned in his person or property without notice and opportunity to make his defence." (Nations et al. v. Johnson et al., 24 How., 203, Boswell's Lessee v. Otis et al., 9 Howard 350;l Oakley v. Aspinwall, 4 Const., 514),  "Regarded merely in the light of principle, therefore, the rile *(in Scribner at al. v. Fisher,  Massachusetts State Court) is one which could hardly be defended, as it is quite evident that the Courts of one State would have no power to require the citizens of other States to become parties to any such proceedings." (Sugdam et al. v. Broafdna et  al., 14 Pet. 75).  "But it is unnecessary to pursue the inquiry, as decisions of this Court are directly the other way, and so are most of the decisions of the State Courts."  (Donelly v. Corbett, 3 Seld., 5900; Poe v. Duck, 5 me., 1, Anderson v. Wheeler, 25 Com., 607; Felch v. Bugbee et al., 48 me., 9; Demerret v. Exchange  Bank, 10 Law rep. U.S. 600; Woodhull v. Eagner, Bald. C.C. 300.)

Insolvent laws of one State cannot discharge the contracts of citizens of other States, because they have no extra-territorial operation and consequently the tribunal suiting under them, unless in cases where a citizen of such other State voluntarily becomes a party to the proceedings, has no jurisdiction in the case.  Legal notice cannot be given, and consequently there can be no obligation to appear, and of course there can be no legal default.

   There can be no mistake about the rule here laid down.  I would gladly aid the old and honored house of Olyphant and Company by allowing this motion, could I do so; but I am bound by these decisions of the Supreme Court.  The motion is overruled.

   In the present state of the practice in this Curt, I do not feel fully warranted in taxing Counsel fees for the libellant.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School