United States v. Jacob Barker.

or the face of the bill; and that the jury should disregard the rate of exchange in the said city in specie. To this opinion the counsel for the plaintiff in error excepted.

The Court for the correction of errors of the state of NewYork, having decided that the holder of a bill of exchange is entitled to recover at the rate of exchange at the time of notice of the protest's being given,-this must be considered as the law of the land; and it is hardly necessary for this Court to examine whether the decision be correct or not, or whether a better rule might not have been adopted. The only proper inquiry now to be made is, whether this rule has been observed on the present occasion; for let any rule whatever be prescribed, it will not always produce equality or justice between the parties.

Considering how long a settlement at par had been practised on, at least in all the Courts of this state, I can discover no very good reason for substituting in its place, the one which has now become law. The present one is more uncertain, liable to rather more difficulty in its application, and proceeds on a supposition which will not in all cases be true, that the holder of a bill of exchange will always want another bill to replace the one which has been protested. One advantage of settling at the par of exchange, is, that the purchaser of a bill can always know beforehand exactly what he is to receive if it be dishonoured, and contracts of that kind will savour less of gambling than they now do; but after all, it is of more importance, that some certain rule be laid down, by which an adjustment is to take place, than that it should be the best rule which could have been possibly devised, about which there will always exist a difference of opinion.

Without pursuing then any further, the speculations which were indulged in at the bar, on this part of the case, this Court will proceed to inquire whether, keeping in view the

United States v. Jacob Barker.

measure of damages introduced by the Court of Errors, the exception now under consideration was well taken. This involves the question, how the rate of exchange in the present case was to be ascertained? Was it to be by the standard of the bank paper then current in this city; or by that of specie? This being an action in which the United States have a right to recover gold and silver, and to receive nothing else in payment, unless it be as has been suggested, treasury notes, it would seem almost necessarily to follow, that in settling so important a question as that of the rate of exchange, no other medium but that of the precious metals could be resorted to, without the most serious injustice to the plaintiff in error. To say because bills are selling for depreciated paper not recognised as a legal currency at one hundred per cent. advance, that twice the amount of the bill shall be recovered to enable the plaintiff in such an action to buy another bill of the same amount with the first, and then to compel the defendant to pay that sum in specie, which will buy a bill of more than double the amount of the one protested, is a course of proceeding not entitled to much fa

vour.

The past moderation and forbearance of government towards its debtors, have been referred to as furnishing evidence that the plaintiff in error will not be required to pay any thing but bank paper, or treasury notes. What the government may do, can be no rule of decision. The Court can only know what they have a right to do, and decide accordingly.

As to the right of paying in treasury notes, the Court cannot know that this will be any relief to the party-their value being altogether fluctuating and contingent. As an article of commerce, they may be worth more or less than specie, when the plaintiff in error is called on for payment.

United States v. Jacob Barker.

Nor can this Court take notice of bank paper being in fact current by common consent, and answering all the purposes of life. It can only take notice of the law, which compelled no man to take it for a debt, and it can notice another fact, not only because of its notoriety, but because of its appearing on the record, that at the time we are speaking of, this paper had undergone a very great depreciation; owing no doubt, in part, to a refusal of the banks to pay specie for their bills. But it is supposed that the difference between bank paper and specie was occasioned by an appreciation of the latter, and not by a depreciation of the former. It is needless to pursue this inquiry, because it is enough for the purpose of the plaintiff in error that a difference in fact existed, and that bills of exchange could be bought on better terms for gold and silver than for paper. This being the case, and specie being the only known legal tender for a debt, it is the opinion of this Court that the District Court erred in rejecting the testimony which was offered to show that bills on London could be bought at the times referred to at fifteen per cent. discount in specie. This testimony should have been received, and been the basis of the assessment of damages, and not the par of exchange, merely because bills were bought at that value if paid for in a depreciated and dishonoured currency for this error the judgment of the District Court is reversed, and a venire facias de novo awarded.

T. A. EMMET, J. O. HOFFMAN, and J. WELLS for the plaintiff.

R. TILLOTSON, D. A. and C. BALDWIN for the defendants.

CIRCUIT COURT OF THE UNITED STATES,

NEW-YORK, APRIL TERM, 1822, AT NEW-YORK.

BEFOR Hon. BROCKHOLST LIVINGSTON, Associate Justice of the Su

preme Court.

Hon. WILLIAM P. VAN NESS, District Judge.

THE SHIP MARY.

No rule has ever been adopted by the maritime law, either of England or this country, prescribing the time within which mariners should proceed to enforce their lien for wages. Necessity of some rule.

The lien of mariners has no analogy to common law liens, as regards the possession of the subject.

A forbearance by seamen to libel a vessel at a port where they are discharged, before the end of the voyage, does not amount to a waiver of their lien, as against a subsequent bona fide purchaser. Difference between a bottomry lien and a lien for wages as respects delay in enforcing it.

A vessel sailed with a cargo on a voyage from New-York to New-Orleans and back. She remained at New-Orleans more than a year after her arrival, waiting for freight. Not obtaining any, the master discharged the seamen, whom he persuaded to return with him in another vessel to New-York, to get their wages. Afterwards, while the vessel was at New-Orleans, she was sold, and went a voyage to Liverpool, and thence to New-York. Holden, that the seamen could libel her on her arrival at New-York, and that they were entitled to their full wages to the time of their return to that city.

THIS was an appeal from a decree of the District Court for the Southern District of New-York, sustaining a libel for seamen's wages.

The Ship Mary.

The respondents shipped on board the Mary, as mariners, in June, 1818, on a voyage from New-York to New-Orleans and back to New-York, or such other port as the ship might take freight for. Freight was earned to New-Orleans, but the ship remained at that port, after her arrival, until August, 1819, without obtaining freight for any other port, when the master, in pursuance of what he deemed his duty, discharged the seamen and left the ship himself. In October following, the present claimant purchased the ship, and sent her the next March on a voyage to Liverpool, and thence to New-York, at which latter place she arrived in July, 1820, and was soon after libelled by the respondents. The respondents were dissuaded from libelling the ship at New-Orleans, by the master, who informed them, that if they would come on with him to NewYork, he would see them paid. The District Court allowed. full wages until the return of the seamen to New-York.

W. SLOSSON and J. BULKLEY for the appellant, contended,

That, as the vessel did not earn freight after her arrival in New-Orleans, the seamen were not entitled to full wages; freight being the mother of wages.a

And that, not having libelled the vessel in New-Orleans, where they might have done it, but having elected to return to New-York and look to the owners or master, they had either waived their remedy against the ship, or been guilty of such laches, that they could not proceed against her, in the hands of a bona fide purchaser."

a 3 John. Rep. 154. 518. 9 Id. 350. 11 Id. 279. Abbott on Shipping, 430. 434. 483.

b Code du Commerce, art. 191. 196. Abbott on Shipping, 465. 470. n. 1 East Rep. 4. 7ld. 5. Doug. Rep. 101. 2 Emerigon, 230. 1 Valin, 362. 4 Cranch Rep. 328. 4 Rob. Rep. 245.