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United States v. Holmes

v. Schooner Paryntha Davis

98 532

CIRCUIT COURT OF THE UNITED STATES.

MAINE DISTRICT.

APRIL TERM, 1858.

DAVID CARTER, Libellant, v. THE SCHOONER BYZANTIUM, TRUE

W. TOWNSEND, Claimant and Appellant.

A lien for repairs and supplies furnished at Norfolk, Virginia, on a ship owned in Maine, is

not lost by the creditor taking bills of exchange on one of the owners, which bills were

produced in court to be surrendered or cancelled. How far, according to the law of Maine and Massachusetts, the taking of a promissory

note, by a simple creditor, is an extinguishment of the original debt.

This was an admiralty appeal. The schooner Byzantium, owned by parties residing in the State of Maine, arrived at Norfolk, Virginia, in need of repairs and supplies in order to enable her to proceed in safety to her port of destination.

At the request of the master, the libellant furnished the necessary supplies and materials and paid for the repairs. When the vessel was refitted, the master drew two bills of exchange on one of the owners in Maine, in favor of the libellant, for the amount then due him, which bills were accepted by the drawee, but were afterwards dishonored. Suit was commenced on the bills, but was never entered in court.

It was in evidence that the taking of such bills of exchange, in the absence of a special agreement, was not considered, according to the custom of merchants at Norfolk, as a waiver of the maritime lien on the vessel for repairs, materials, and supplies.

In the libellant's account with the schooner, she was credited with the drafts, and appended to the description of them was a re

Carter v. Townsend.

cital in the nature of a receipt, as follows, -“Which when paid will be in full of account."

Upon the arrival of the vessel in Maine, a libel in rem was filed, claiming to recover on the original account, and the drafts were produced at the trial, and offered to be surrendered. After a hearing, the district judge decreed that the libellant recover the full amount of his account with interest. From this decree the claimants appealed.

Deblois and Jackson, for libellant.
John Rand, for claimant.

CLIFFORD, J. It is insisted by the respondent that the bills of exchange were received by the libellant in payment of the debt contracted for the repairs and supplies, and that the effect of the transaction, under the law of Maine, was to extinguish the original debt, and of course to discharge the maritime lien upon the vessel. The proposition assumes that the transaction is governed by the law of Maine, where the bills were accepted, and not by the law of Virginia, where they were drawn and received by the libellant. When a party, bound to a simple contract debt, gives his own negotiable security for it, whether a bill of exchange or promissory note, the law of Maine, as expounded in the decisions of her courts, presumes as a matter of fact, in the absence of any circumstances to indicate a contrary intention of the parties, that the bill or note was given and received in satisfaction and discharge of the pre-existing debt. That rule was adopted in Massachusetts before Maine was admitted as an independent State, and has since been followed by the tribunals of both States in repeated decisions. Thacher et al. v. Dinsmore, 5 Mass. 302; Varner v. Nobleboro, 2 Greenl. R. 121. Very little embarrassment results from the rule, when its application is kept, as it should be, within the bounds of the principle which the rule itself announces. It is merely a presumption of fact, and may be controlled by circumstances indicating a contrary intention. No such presumption arises at common law, or in Virginia, where the bills were drawn and received. One of the principal reasons assigned for the rule by the courts of Maine and Massachusetts is, that if an action may be maintained for the original debt, the

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