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Theophilus Parsons.

Laws of business for all the states of the Union : with forms and directions for all transactions. And abstracts of the laws of all the states and territories on the various topics online

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or hearing, to be served by either party upon the other party, and upon the clerk,
and a separate calendar of the same shall be made by the clerk for every Saturday
in the term, on which the cases shall be arranged in the order in which the same
are numbered, according to General Order No. 1.

Passed Feb. 21, A.D. 1868.

Hule 17. The application, under Section 34 of the act, to set aside and an-
nul a discharge, shall be verified by the oath or affirmation of the applicant, and
the answer of the bankrupt to the application shall answer specifically the allega-
tions of the application, and shall be verified in like manner.

Hule 18. The demand in writing for a trial by jury, under Section 41 of the
act, shall be signed by the debtor or his attorney.

Hule 19. All issues, questions, points, and matters stated in writing, under
Rule 11 of the " General Orders in Bankruptcy," or under the 4th Section or the
6th Section of the act, or according to Form No. 50, and adjourned into court for
decision, or stated in a special case for the opinion of the court, shall be certified to
the judge by the register by a certificate, which shall also state briefly the opinion
of the register on the issue, question, point or matter, and shall be delivered or sent
to the clerk ;. and no oral or written argument shall be allowed on any such issue
or question, unless by special leave of the court.

Hule 20. In pursuance of Rule 28 of the " General Orders in Bankruptcy,"
the following National Banks in this district are designated as those in which all
moneys received by assignees or paid into court in the course of any procee;lings in
bankruptcy shall be deposited, namely :

The list of banks is here omitted, as is the list of newspapers in
the next rule ; as they must necessarily be different in the different
States.

All moneys received by the clerk of the court on account of any bankrupt estate,
or paid into court in the course of any proceedings hi bankruptcy (except the sums



304 BANKETJPTCT.

deposited with the clerk under Section 47 of the act), shall be deposited in said
bank in the city and county of New York ; and all sums received by an assignee
on account of any estate of which he is assignee shall be deposited in such one of
said banks as he shall select by a writing to be signed by him, and filed with the
clerk. The check, or warrant, for drawing moneys deposited by the clerk, shall be
signed by the clerk, and countersigned by the judge. The check, or warrant, for
drawing moneys deposited by an assignee, shall be signed by him, and counter-
signed by the register designated to act in the case of the estate on account of
which such moneys were deposited.

Rule 2L The following newspapers are designated as those in which all pub-
lications required by the act, or the " General Orders in Bankruptcy," or these rules,
may be made, namely : (the names of the newspapers are here omitted.)

The marshal and the clerk, and every register or assignee, when required to pub-
lish any notice or advertisement, shall preserve and return to the court a copy, cut
from each newspaper hi which it is published, of each notice and advertisement as
published, with a certificate as to the particulars of the publishing, showing that the
required publication has been made.

Rule 22. In case of the absence of the judge at the time and place noticed
or appointed for any hearing or proceeding before him in bankruptcy, or if the mat-
ter then fails to be called or acted on, the same shall be deemed continued, without
other order, to the next sitting of the court thereafter, at which time the like pro-
ceedings may be had thereupon as if first noticed or appointed for such day.

Rule 23. If the marshal shall, under Rule 13 of the "General Orders in
Bankruptcy," appoint special deputies to act as messengers, he shall, as far as pos-
sible, designate one or more of such special deputies to be attached to the office of
each register, for the purpose of causing the notices to be published and served
which are specified in the warrants issued in the cases referred to such register.

Rule 24. All notices served or sent by mail by the marshal, the. clerk, or an
assignee, shall be so written or printed and folded, that the direction, postage-stamp,
and post-mark shall be upon the notice itself, and not upon an envelope or other
separate piece of paper.

Rule 25. Special cases not comprehended within the foregoing Rules, or
the " General Orders in Bankruptcy," or the Forms, shall be submitted to the
judge.



305



CHAPTER XXIY.

'JL'JdUJ UtA^W OF



SECTION L
WHAT IS MEANT BY THE LAW OF PLACE.

IP either of the parties to a contract is not at home, or if both are
not at the same home, when they enter into the contract, or if it is
to be executed abroad, or if it comes into litigation before a foreign
tribunal, then the rights and the obligations of the parties may be
affected either by the law of the place of the contract, or by the law
of the domicil or home of a party, or by the law of the place where
the thing is situated to which the contract refers, or by the law of
the tribunal before which the case is litigated. All of these are
commonly included in the Latin phrase lex loci, or, as the phrase is
translated, the Law of Place.

It is obvious that this law must be of great importance wherever
citizens of distinct nations have much commercial intercourse with
each other. In this country it has an especial and very great im-
portance, from the circumstance that, while the citizens of tbe whole
country have at least as much business connection with each other
as those of any other nation, our country is composed of thirty-six
separate and independent sovereignties, which are, for most com-
mercial purposes, regarded by the law as foreign to each other.



SECTION n.

THE GENERAL PRINCIPLES OF THE 11A.W OF

THE general principles upon which the law of place depends are
four. First, every sovereignty can bind, by its laws, all persons and



306 THE LAW OB PLACE.

all things within the limits of the State. Second, no law has any force
or authority of its own, beyond those limits. Third, by the comity or
courtesy of nations, aided in our case, as to the several States, by
the peculiar and close relation between the States, and for some pur-
poses by a constitutional provision, the laws of foreign States have
a qualified force and influence.

The fourth rule is perhaps that of the most frequent application.
It is, that a contract which is not valid where it is made is valid
nowhere else ; and one which is valid where it is made is valid
everywhere. Thus a contract made in Massachusetts, and there
void because usurious, was sued in New Hampshire and held to be
void there, although the law of New Hampshire would not have
avoided it if it had been made there. But courts do not take notice
of foreign revenue laws, and will enforce foreign contracts made in
violation of them. If contracts are made only orally, where by law
they should be in writing, they cannot be enforced elsewhere where
writing is not required ; but if made orally where writing is not re-
quired, they can be enforced in other countries where such contracts
should be in writing. The rule, that a contract which is valid
where it is made is valid everywhere, is applicable to contracts of
marriage.

As contracts relate either to movables or immovables, or, to use
the phraseology of our own law, to personal property or to real
property, the following distinction is taken. If the contract refers
to personal property (which never has a fixed place, and is there-
fore called, in some systems of law, movable property), the place of
the contract governs by its law the construction and effect of the
contract. But if the contract refers to real property, it is construed
and applied by the law of the place where that real property is
situated, without reference, so far as the title is concerned, to the
law of the place of the contract. Hence, the title to land can only
be given or received as the law of the place where the land is situated
requires and determines. And it has been said that the same rulo
may properly apply to all other local stock or funds, although of a
personal nature, or so made by the local law, such as bank stock,
insurance stock, manufacturing stock, railroad shares, and other
incorporeal property, owing its existence to, or regulated by, pecu-



THE PLACE OF THE CONTRACT. 307

liar local laws ; and therefore no effectual transfer can be made of
such property, except in the manner prescribed by the local regu-
lations.

As to the capacity of a person to enter into contracts, it is undoubt-
edly the general rule, that this is determined by the law of his
domicil ; and whatever that permits him to do he may do anywhere.



SECTION IIL
THE PLACE OF THE CONTRACT.

A CONTRACT is made when both parties agree to it, and not before.
It is therefore made where both parties agree to it, if this is one
place. But if the contract be made by letter, or by separate signa-
tures to an instrument, the contract is then made where that
signature is put to it, or that letter is written, which in fact com-
pletes the contract. But this rule is subject to a very important
qualification, when the contract is made in one place, and is to be
performed in another place ; for then, in general, the law of this last
place must determine the force and effect of the contract, for the
obvious and strong reason, that parties who agreed that a certain
thing should be done in a certain place intended that a thing should
be done there, which was lawful there, and therefore bargained with
reference to the laws of the place, not in which they stood, but in
which they were to act. This principle has been applied to an
antenuptial contract, and it was held, that when parties marry in
reference to the laws of another country as their intended dornicil,
the law of the intended domicil governs the construction of their
marriage-contract as to the rights of personal property.

But, for many commercial transactions, both of these rules seem
to be in force ; or rather to be blended in such a way as to give the
parties an option as to what shall be the place of the contract, and
what the rule of law which shall apply to it. Thus, a note written in
New York, and expressly payable in New York, is, to all intents and
purposes, a New- York note ; and if more than seven per cent interest
was promised, it would be usurious, whatever was the domicil of the
parties. If made in New York, and no place of payment is exp i-'j?s<jd,



808 THE LAW OF PLACE.

it is payable and may be demanded anywhere, bat would still be a
New- York note. But if made in New York, but expressly payable
in Boston (where any amount of interest may be agreed for), and
promised to pay ten per cent interest, when payment of the note was
demanded in Boston, the promise of interest would be held valid.
So, if the note were made in New York, payable in Boston, and
promising to pay ten per cent interest, it would not be usurious.,

In other words, if a note is made in one place, but is payable in
another, the parties have their option to make it bear the interest
which is lawful in either place.

If the contract be entered into for money, and is made in one place
but is payable at another place on a day certain, and no interest be
stipulated, and payment be delayed, interest by way of damages shall
be allowed, according to the law of the place of payment, where the
money may be supposed to have been required by the creditor for
use, and where he might be supposed to have borrowed money to
supply the deficiency thus occurring, and to have paid the rate of
interest of that country. If a note made in New York and payable
in Massachusetts were demanded in Massachusetts and unpaid, and
afterwards put in suit in Massachusetts, and personal service made on
the promisor there, I should say that any interest which it bore should
be recovered, provided it were lawful in Massachusetts. And indeed,
generally, that such a note, being made in good faith, might always
bear any interest lawful where it was payable. But a note made in
a State where the law permitted only a low interest, and intended
in fact to be paid in that State, but written payable in some State
permitting higher interest, merely to get this higher interest, could
not by this trick escape the usury laws of the State where it was
made, and get the higher interest.



SECTION rv.



DOMICEL.

IT is sometimes very important to determine where a person
has his domicil, or HOME. In general, it is his residence ; or that



DOMICIL. 309

country in which he permanently resides. He may change it by a
change of place both in fact and in intent, but not by either alone.
Thus, a citizen of New York, going to London and remaining there
a long time, but without the intention of relinquishing his home in
New York, does not lose that home. And, if he stays in New York,
his intention to live and remain abroad does not afiect his domicil
until he goes in fact.

He may have his legal domicil in one place, and yet spend a very
large part of his time in another. But he cannot have more than
one domicil. His words or declarations are not the only evidence
of his intent ; and they are much stronger evidence when against
his interest, than when they are in his favor. Thus, one goes from
Boston to England. If he goes intending not merely to travel, but
to change his residence permanently, and not to return to this coun-
try unless as a visitor, he changes his domicil from the day that he
leaves this country. Let us suppose, however, that he is still
regarded by the assessors as residing in Boston, although travelling
abroad, and is heavily taxed accordingly. If he can prove that lie
has abandoned his original home, he escapes from the tax which he
must otherwise pay. Now, his declarations that he has no longer a
home here, and that his residence is permanently fixed in England,
and the like, would be very far from conclusive in his favor, and
could indeed be hardly received as evidence at all, unless they were
confirmed by facts and circumstances. But if it could be shown
that he had constantly asserted that he was still an American, that
he had no other permanent residence, no home but that which he
had temporarily left as a traveller, such declarations would be
almost conclusive against him. In general, such a question would
be determined by all the words and acts, the arrangement of proper-
ty at home, the length and the character of the residence abroad,
and all the acts and circumstances which would indicate the actual
intention and understanding of the party.

Two cases have occurred in the city of Boston, which illustrate
this question. In one, a citizen of Boston, who had been at school
in the city of Edinburgh when a boy, and formed a predilection for
that place as a residence, and had expressed a determination to re-
side there if he ever should have the means of so doing, removed



310 THE LAW OF PLACE.

with his family to that city, in 1836, declaring, at the time of his
departure, that he intended to reside abroad, and that, if he should
return to the United States, he should not live in Boston. He
resided in Edinburgh and vicinity, as a housekeeper, taking a lease
of an estate for a term of years, and endeavored to engage an Amer-
ican to enter his family for two years, as instructor of his children.
Before he left Boston, he made a contract for the sale of his man-
sion-house and furniture there, but shortly afterward procured said
contract to be annulled (assigning as his reason therefor, that, in
case of his death in Europe, his wife might wish to return to Bos-
ton), and let his house and furniture to a tenant. Held, that he
had changed his domicil, and was not liable to taxation as an inhab-
itant of Boston in 1837. In the other case, a native inhabitant of
Boston, intending to reside in France, with his family, departed for
that country in June, 1836, and was followed by his family about
three months afterwards. His dwelling-house and furniture were
leased for a year, and he hired a house for a year in Paris. At the
time of his departure he intended to return and resume his residence
in Boston, but had not fixed on any time for his return. He re-
turned in about sixteen months, and his family in about nine
months afterwards. Held, that he continued to be an inhabitant of
Boston, and that he was rightly taxed there, during his absence,
for his person and personal property. This last case was distin-
guished from the former, by the different intent of the parties upon
their departure from home.

It is a general rule, that, if one has a domicil, he retains it until
he acquires another. Thus, if a seaman, without family or prop-
erty, sails from the place of his nativity, which may be considered
his domicil of origin, although he may return only at long intervals,
or even be absent for many years, yet, if he does not, by some actual
residence or other means, acquire a domicil elsewhere, he retains his
domicil of origin. ,

It seems to be agreed that one may dwell for a considerable time,
and even regularly during a large part of the year, in one place, or
even in one State, and yet have his domicil in another.

A woman marrying takes her husband's domicil, and changes it
with him. A minor child has the domicil of his father, or of his



THE OWNERSHIP AND TKANSFEK OF SHIPS. 311

mother if she survive his father ; and the surviving parent, with
whom a child lives, by changing his or her own domicil in good
faith, changes that of the child. And even a guardian has the same
power.



CHAPTER XXV.

THE 3L.A.W CXF 1 8HH?I>riVO.



SECTION I.

TUB OWNERSHIP AND TRANSFER OF SHIPS.



THE Law of Shipping may be considered under three divisions.
First, as to ownership and transfer of ships. Second, as to the em-
ployment of ships as carriers of goods, or of passengers, or both.
Third, as to the navigation of ships. I begin with the first topic.

Ships are personal property ; or, in other words, a ship is a chat-
tel ; and yet its ownership and transfer are regulated in this country
by rules quite analogous to those which apply to real property.

The Constitution of the United States gives to Congress the power
to enact laws for the regulation of commerce. In execution of this
power, acts were passed in 1792, and immediately after, which fol-
lowed substantially the Registry and Navigation Laws of England,
some of which had been in force about a century and a half. The
English laws were intended to secure English commerce to English
men and English ships ; and it was supposed that the commercial
prosperity of England was in a great measure due to them.

To secure the evidence of the American character of a vessel, the
statute of 1792 provides for an exact system of registration in the
custom-house. There is no requirement of registration. The law
does not say that a ship shall or must be registered, but that certain



312 THE LAW OP SHIPPING

ships or vessels may be ; and, if they are registered, they shall ha^e
certain privileges. And the disadvantage of being without registry
operates as effectually to make registration universal, as a positive
requirement with a heavy penalty could do.

The ships which may be registered are those already registered,
31 December, 1792, under the act of September, 1789 ; those built
within the United States, and owned wholly by citizens thereof ; and
those captured and condemned as prizes, or adjudged forfeited by
violation of law, if at the time of registry they are owned wholly
by citizens of this country. No ship can be registered, if an owner
or part-owner usually reside abroad, although he is a citizen, unless
he is a consul of the United States, or agent for, and a partner in,
a mercantile house established and doing business here ; nor if the
master be not a citizen of the United States ; nor if the owner or
part-owner be a naturalized citizen, and reside in the country
whence he came more than a year, or in any foreign country more
than two years, unless he be consul or public agent of the United
States. But a ship which has lost the benefits of registry by the
non-residence of an owner, in such a case may be registered anew
if "she become the property of a resident citizen, by bond fide pur-
chase ; nor can a ship be registered which has been, at any time,
the property of an alien, unless she becomes the property of the
original owner or his representative.

Sometimes Congress, by special acts, permits the registration, as
an American ship, of a vessel which has become, by purchase,
American property. If a registered American ship be sold or trans-
ferred, in whole or in part, to an alien, the certificate of registry
must be delivered up, or the vessel is forfeited ; but if, in case of a
sale in part, it can be shown that any owner of a part not so sold
was ignorant of the sale, his share shall not be subject to such for-
feiture. As soon as a registered vessel arrives from a foreign
port, her documents must be deposited with the collector of the port
cf arrival, and the owner, or, if he does not reside within the dis-
trict, the master, must make oath that the register contains the
names of all persons who are at that time owners of the ship, and
at the same time report any transfer of the ship, or of any part, that
has been made within his knowledge since the registry; and also



THE OWNERSHIP AND TRANSFER OP SHIPS. 313

declare that no foreigner has any interest in the ship. If a register
be issued fraudulently, or with the knowledge of the owners, for a
ship not entitled to one, the register is not only void, but the ship is
forfeited. If a new register is issued, the old one must be given
up ; but where there is a sale by process of law, and the former
owners withhold the register, the Secretary of the Treasury may
authorize the collector to issue a new one. If a ship be transferred
while at sea, or abroad, the old register must be given up, and all
the requirements of law, as to registry, &c., must be complied with,
within three days after her arrival at the home port.

Important exclusive privileges have been granted to regis-
tered vessels of the United States. By the statute of 1817, it is
provided, that no merchandise shall be brought from any foreign
country to this, except in American vessels, or in vessels belonging
to that'country of which the merchandise is the growth. Also, that
no merchandise shall be carried from port to port in the United
States, by any foreign vessel, unless it formed a part of its original
cargo.

A ship that is of twenty tons' burden, to be employed in tho
fisheries, or in the coasting-trade, need not be registered, but must
be enrolled and licensed accordingly. If under twenty tons' bur-
den, she need only be licensed. If licensed for the fisheries, she
may visit and return from foreign ports, having stated her intention
of doing so, and being permitted by the collector. And if regis-
tered, she may engage in the coasting-trade or fishery, and if licensed
and enrolled, she may become a registered ship, subject to the regu-
lations provided for such cases.

A ship that is neither registered nor licensed and enrolled can
sail on no voyage with the privilege or protection of a national char-
acter or national papers. If she engages in foreign trade, or the
coasting-trade, or fisheries, she is liable to forfeiture ; and if she
have foreign goods on board, must at all events pay the tonnage-
duties leviable on foreign ships. In these days, no ship engaged in
honest business, and belonging to a civilized people, is met with on
the ocean, without having the regular papers which attest her na-
tionality, unless she has lost them by eome accident.



\

314 THE LAW OF SHIPPING.



SECTION H.
THE TRANSFER OF PROPERTY IN A SHIP

THE Statute of Registration provides, that, " in every case of sale
or transfer, there shall be some instrument in writing, in the nature
of a bill of sale, which shall recite at length the said certificate ;
otherwise the said ship or vessel shall be incapable of being
registered anew." It follows, therefore, that a merely oral transfer,
although for valuable consideration, and followed by possession, gives
the transferee no right to claim a new register setting forth his
ownership. But this is all. There is nothing in this statute to
prevent the property from passing to and vesting in such transferee.
It is, however, unquestionably a principle of the maritime law



Online LibraryTheophilus ParsonsLaws of business for all the states of the Union : with forms and directions for all transactions. And abstracts of the laws of all the states and territories on the various topics → online text (page 32 of 70)