land, relative to the legal rate of interest. He said that if Mr. Robertson's bond had been the only security his defense would have been good, because, as no place of payment was mentioned, the legal construction of the contract was that the money was to be paid to Mr. Chapman where he resided. "It is an established principle," said the chancellor, "that the construction and validity of a contract, which is purely personal, depends upon the laws of the place where the contract was made, unless it was made in reference to the laws of some other place or country, where, in the contemplation of the parties, it was to be carried into effect. On the other hand, it appears to be equally well settled by the laws of every country that the transfer of lands, or the creation of any interest in, or lien or incumbrance upon, lands, must be made according to the local law of the place where the lands are situated." The court accordingly made a decree in Mr. Chapman's favor.

In all such cases, however, as will appear more fully when we come to consider USURY, the contract to be upheld should be honestly made, and not a contrivance to make the law of one place a mere cover to an evasion of the law of another.

If the rate of interest has been changed since the liability upon which interest is claimed was incurred, the interest must be calculated according to the law previously existing.

The question has arisen, where interest was due for a long time at a low rate under an agreement, and the agreement being broken, it became due after that time as damages, whether the debtor was bound to pay damages at the full legal rate, or only at the rate stipulated in the con

tract?

A case which occurred in South Carolina a number of years ago will serve to illustrate this.

Mr. John Gaillard was appointed as a trustee for receiving some legacies, which had been bequeathed to certain children, to keep for them until they became of age. When the money was put into his hands he gave a bond, that when each child became of age he would pay to him or her the proportion of the legacies assigned to them, and that meanwhile he would pay 4 per cent interest. One of the children having become of age, Mr. John Gaillard failed to pay the amount due according to his contract in the bond. He meantime died, having appointed Mr. Theodore Gaillard his executor. Mr. Ball, the person whose legacy was unpaid, applied to the executor for its payment, and demanded interest, at the rate of 7 per cent, since the time when it ought to have been paid over according to the undertaking of Mr. John Gaillard. The executor admitted that the principal was due, but he said that only 4 per cent interest could be claimed, and he refused to pay any more than that. Mr. Ball then brought a suit against him, to compell him to pay 7 per cent interest from the time he came of age. The reader who understands the distinction between the two grounds of claim to interest will anticipate the decision. This suit was successful. The court decided that the agreement to take 4 per cent expired at the time when the money ought to have been paid. "The law which the parties had made for themselves having ended at that time, the contract was governed by the law of the land afterwards."

JOURNAL OF MERCANTILE LAW.

LIENS UNDER GENERAL MARITIME LAW OF THE UNITED STATES-JURISDICTION OF OUR COURTS.

In United States District Court, (Missouri.) In Admiralty-September adjourned term, 1856. Decision of Judge Wells :

In this case certain of the libelants had liens under the general maritime law of the United States, and others had liens under the statute of Missouri, entitled an act concerning boats and vessels," (Digest laws of Missouri, 1845, page 180.) Those having liens under the general maritime law furnished supplies in Cincinnati, Ohio, where they resided at the time, and whilst the boat was owned in Missouri; others resided in Missouri, and furnished supplies whilst the boat was owned in Ohio.

Those having liens under the State law resided in Missouri, and furnished the supplies there, the boat at that time being also owned in Missouri.

After the supplies were furnished, the boat was sold under the provisions of the above-cited statute of Missouri; and the question now raised for the consideration of the Court is, were these material men divested of their several liens by not intervening in the State Court, or by the proceedings in the State Court? It is a question of delicacy, as the decision of it may conflict with State laws; but I am compelled to decide it.

The provisions of the statute of Missouri make no distinction in terms between vessels owned by citizens or subjects of foreign nations, or citizens of other States of the Union, and those owned by citizens of Missouri.

They apply to "every boat or vessel navigating the waters of this State;" see the act, section 1, and to "contracts made within this State with boats used in navigating the waters of this State." See the case of James, respondent, vs. the steamboat Pawnee, 19 Missouri Rep., 517.

If I understand correctly the language of Judge Story, he entertained the opinion that similar provisions in the statutes of the State of New York, could not properly be construed to apply to any but domestic boats or vessels—that is, those owned in New York. (The bark Chusan, 2 Story's Reps., 461-2.) But the Supreme Court of Missouri makes no distinction between foreign and domestic vessels. (James vs. the Pawnee, supra.)

The case now under consideration differs from that of the "Henrietta," decided by this Court at the March term, 1856. In that case the boat was owned in Missouri, and the supplies were furnished in Illinois. I held that the case did not come within the provisions of the steamboat law of Missouri, because the vessel was not, at the time the contract was made for the supplies, "navigating the waters of this State;" nor was the contract made or supplies furnished" within this State," and, therefore, the lien, obtained in Illinois under the general maritime law, was not divested by the sale in Missouri. But much of the reasoning in that case is applicable to this case, and will not be here repeated.

Is the admiralty and maritime jurisdiction in rem. exclusively in the United States Courts? When I wrote the opinion in the case of the Henrietta, I had never known it questioned; but in a recent decision by the Supreme Court of Ohio, it is questioned and denied. (See Thompson vs. steamer G. D. Morton, 2 Warden's Ohio State Reports, 26.) That Court appears to think that the provisions of the 9th section of the judiciary act of Congress makes the jurisdiction of the District Courts exclusive only as relates to the Circuit Courts of the United States. In that opinion I cannot concur.

The 9th section of the judiciary act (1789) declares that the District Courts of the United States shall have, in certain cases specified-1st. Jurisdiction (or cognizance) exclusive of the Courts of the several States. 2d. In other cases, jurisdiction concurrent with the Courts of the several States, or the Circut Courts

of the United States, as the case may be. 3d. And in other cases, exclusive original cognizance, without mentioning any other Courts, either Federal or State; and this last includes all civil causes of admiralty and maritime jurisdiction, including certain seizures on water, “saving to suitors, in all cases, a common law remedy, where the common law is competent to give it ;" and a like cognizance in other cases of seizure, without any saving.

In the first class of cases, as I have arranged them, the jurisdiction is not declared to be exclusive, except as to the State Courts; and there is, therefore, an implied exception as to the jurisdiction of the Circuit Courts of the United States.

In the second class, the grant is not declared to be exclusive, but concurrent, and the jurisdiction both of the Courts of the several States and the Circuit Courts of the United States is excepted.

In the third class there is no exception of the exclusiveness as to either the Courts of the several States or the Circuit Courts of the United States, except as to the common law remedy in the first branch of that class, and without that exception as to the other branch.

So that, in the third class, which includes the admiralty and maritime jurisdiction, there is no exception, except that of the common law remedy, as to the exclusiveness of the original jurisdiction in the District Courts. It is absolute, unconditional, and exclusive. But the grant of exclusive original jurisdiction to the District Courts does not exclude the appellate jurisdiction of the Circuit Courts, which is also provided for in the 21st section of the same act. This seems to me conclusive.

Again; as to all other matters mentioned in the third class, there never has been any doubt as to the jurisdiction being exclusive as to the State Courts. Why, then, is it not exclusive as to the admiralty and maritime jurisdiction? The same language is used as to all.

The Supreme Court of the United States, (Judge Marshall delivering the opinion,) in the case of Slocum vs. Mayberry, 2 Whea. R., 9, expressly decided that the jurisdiction of the United States Courts, as to seizures on land and water, is exclusive of the Courts of the several States; this is embraced in the second branch of the third class above. In the case of Galston vs. Hoyt, (3 Whea R., 246,) the question in the Supreme Court of the United States is put beyond all dispute. The Court is discussing the question of the exclusive jurisdiction of the United States Courts as it regards the State Courts, and declares that “by the judiciary act of 1789, ch. 20, sec. 9, the District Courts are invested with exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, and of all seizures on land and water, and of all suits for penalties and forfeitures incurred under the laws of the United States."

Similar phraseology is used in the 11th section of the judiciary act, which gives the Circuit Court "exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except where this act otherwise provides, or the laws of the United States shall otherwise direct "-without mentioning the State Courts; yet no one has ever doubted that the jurisdiction here given was exclusive of the State Courts. See also 1st Conklin's Ad., 349.

The opinion (excepting so much as regards the effect of the 9th section of the judiciary act) given by the Supreme Court of the State of Ohio in the case above cited, and the opinion expressed by that Court in the case of Keating vs. Spaik, (3 Warden & Smith's Ohio Rep.,) do not apply to the case I am considering, although they deny exclusive jurisdiction in rem. to the United States Courts in admiralty causes. The cases in which those opinions were delivered arose and had to be decided under the act of Congress of the 26th February, 1845, (5 Lit. and B., 726,) which applies only to the lakes and their connecting rivers, and which not only saves the common law remedy, but also "any concurrent remedy which may be given by the State laws."

1st. Let us now see how the matter stands. The Courts of the United States have cognizance of all civil causes of admiralty and maritime jurisdiction, and

have it exclusive of the Courts of the several States, except as to the common law remedy.

2d. This is a civil cause of admiralty and maritime jurisdiction.

3d. The libelant has a lien given by the general maritime law of the United States; it is as much a vested right as that of a mortgage. It is a contract which the Legislature of a State can pass no law to impair. (Bronson vs. Kinzie, 1 How. R., 311.)

4th. The party having this lien is entitled to sue in the United States Court, in admiralty, to enforce it. This right is given by the laws of the United States. 5th. The laws of the United States are supreme over State laws.

6th. A State law comes in and declares that the party having this lien shall either sue in the State Courts, under the "act concerning boats and vessels," or lose his lien.

Can it be possible such State law is valid? The United States law and the State law cannot both be enforced. The first gives the party a right to sue in United States Courts, and there to establish his claim and obtain the enforcement of his lien; the second declares that if he does not sue in the State Court-that is, if he sues in the United States Court, he shall get nothing.

I refer to the case of Shelby vs. Bacon, et al., (9 How. R., 69, 70, 71,) to show that where a person has a right to sue in the Courts of the United States, no State law, and the proceedings of no State tribunal, can deprive him of that right. It is substantially as follows:-The Bank of the United States, after obtaining a charter from the State of Pennsylvania, failed. It made assignments of its assets under the laws of that State. The assignees, according to those laws, were to receive and collect the assets, and allow debts and pay creditors; all under the control and jurisdiction of the Court of Common Pleas of that State. If creditors did not exhibit their claims and get them allowed, they obtained no part of the assets of the bank.

A creditor who resided in Kentucky brought suit in the Circuit Court of the United States. The assigness pleaded to the jurisdiction of the Court. The case went to the Supreme Court of the United States. That Court held that the plaintiff, as a citizen of another State, had a right to sue in the Courts of the United States, and the State law couid not deprive him of that right. The Court says:"To establish this claim as against the assignees, the complainant has a right to sue in the Circut Court, (of the United States,) which was established chiefly for the benefit of Lon-residents." On the most liberal construction, favorable to the exercise of the special jurisdiction, the rights of the plaintiff, in this respect, could not, against his consent, be drawn into it." "Citizens residing, perhaps, in a majority of the States of the Union, are debtors or creditors of the bank. It is difficult to perceive by what mode of procedure the State of Pennsylvania can obtain and exercise an exclusive jurisdiction over the rights of persons thus situated."

It appear to me that if a person, having a lien under the general maritime law, cannot resort to this Court-a Court of exclusive jurisdiction in admiralty cases ---because of the provisions of the State laws and proceedings under them, then the whole subject is reversed, and the State Courts have the exclusive jurisdiction; and in that way the entire jurisdiction, in all cases, of the Courts of the United States might be absorbed by the State Courts. I am speaking of the effect of such laws, not of the motives or intentions of the Legislature in passing them; for, to do the Legislature of Missouri justice, the steamboat laws were enacted some sixteen years before it was understood that the United States Courts had jurisdiction of cases arising out of our inland navigation upon the public rivers of the United States.

The act of Congress, section 9, above referred to, saves to suitors the right of a common law remedy, when the common law is competent to give it. It is a common law remedy, as distinguished from a remedy in the Admiralty or in Chancery.

This common law remedy existed before the constitution and act of 1789, and is, by the latter, saved, not given. (2 Brown's Civil and Admiralty Law, 111, 112.)

But a common law remedy is a remedy by action at common law, and is not a proceeding in rem., or against the vessel itself. (Ibid, and note, 53 to page 111.) Courts of common law do not proceed in rem. (Percival vs. Hickey, 18 Johns. R., 292; Waring vs. Clarke, 5 How. R., 461; Clarke vs. New Jersey Steam Navigation Company, 1 Story's R., 538-9; 1 Kent's Com., 378, 2d edition.) Opinion of Mr. Justice Catron in Waring vs. Clarke, supra., and therefore a proceeding in rem. cannot be a common law remedy.

The common law is competent to give a remedy in many cases which are cases of admiralty and maritime jurisdiction. Thus a metrical man may proceed in admiralty either against the vessel in rem., or against the owners in personam, or against the master in personam. He has also his remedy at common law, which would be an action of debt or assumpsit against the owners, or a like action against the master for the value of the supplies furnished.

In some, if not all cases of collision, where a party injured could maintain a suit in rem. in the admiralty, he could also maintain an action of trespass at common law. (Percival vs. Hickey, supra.)

So an action of trover will lie in many cases of a wrongful dispossession of vessels, although there is a remedy also in the admiralty.

Why are suitors, not suing in the admiralty but in the State Courts, limited to a common law remedy, and are not authorized to proceed in rem.?

The proceedings against ships and vessels affect the citizens and subjects of foreign nations, as well as the citizens of the several States; and it is important that the principles and rules for determining rights and injuries, and the courts to administer them, should be those known to the law of nations; and those principles and rules should be uniform throughout the United States-so also of the remedies.

If the courts and officers, including justices of the peace and constables, of the several States can proceed in rem. against the vessels of other States, so they can against foreign ships and vessels, and thus ships would be seized, voyages would be broken up, the United States involved in difficulties and reclamations with foreign nations; a multiplicity of laws, rules, and proceedings, contradictory and inconsistent with each other, in the several States, be introduced; and thus the exclusive right and jurisdiction of the United States over our foreign relations, and over the commerce and navigation of the United States, both foreign and domestic, would be interfered with and rendered impracticable. And the States themselves would soon get into conflicts of jurisdiction and laws, and resort to laws retaliatory and vexatious upon the shipping of each other, as was the case before the adoption of the federal constitution.

It must be remembered also, that the navigable rivers of the United States are not the exclusive property of any State or States, but are common to all. (Benedict's Ad., 114.) And that vessels navigating those rivers are enrolled and licensed by the United States, and that such license imports full power and authority to navigate them; and no other authority is necessary.

In relation to the authority of the United States Courts and the State Courts in admiralty cases, see the Spartan, (Wares' Reps., 147.) Certain logs of mahogany, (2 Sumner's Reps., 592.) Wall vs. the Royal Saxon, (2 American Law Register, 324.) (1 Haggart's Ád. R., 298.) The Flora vs. the Globe, (American Law Journal for February, 1851.)

I do not find any reported case in which is satisfactorily discussed and decided the question how far, under the 9th section of the judiciary act, the Courts of the several States have jurisdiction to proceed in rem. against ships and other vessels enrolled or registered and licensed under the laws of the United States. I find cases decided, which arose under the act of 1845, extending a quasi admiralty jurisdiction to the lakes and their connecting rivers; which are, as already shown, not applicable to the commerce and navigation on other rivers. Some other cases speak of a concurrent remedy at common law, and say that the jurisdiction of the Courts of the United States is not exclusive.

This is all true, because the common law remedies are saved; but they do not