U. S. District Court.-Gaines v. Travis.

(Act May 8, 1792. 1 Stats. U. S. 276, §2.) The act of May 19, 1828, is to the same effect, in respect to States admitted into the Union since 1789, (4 Stats. U. S. 278,) and § 3 of the latter act, which directs executions and final process issued on judgments and decrees rendered in any of the courts of the United States, to conform to those of the State, plainly limits the decrees to those made by courts of equity. (10 Wheat. 473, Manro vs. Almeida, 5 Peters 298. Hind vs. Vettis.) Power is given the courts, by these acts, to vary their processes at discretion, and so as to render them operative entirely beyond like process issued by State courts, (10 Wheat. 51, U. S. vs. Halstead,) unless Congress has regulated the subject by specific enactments (7 Peters, 209. Duncan vs. Darst.)

It is manifest upon this succinct summary of the acts of Congress and decisions of the United States Courts, that the State statute referred to has no application to arrests and imprisonments under process from courts of admiralty. Their practice remains as it was declared by the acts of 1789 and 1792, and as altered by the courts under the authorization of those acts and a more recent one, to be adverted to hereafter. (MSS. decisions Jany. 1848. Gardner vs. Isaacson.

On the 12th of April, 1848, the legislature of New-York passed an act to simplify and abridge, the Practice, Pleadings and Proceedings of the courts of this State."

By Sec. 153 of that act it is declared, that, "No person shall be arrested in a civil action, except as prescribed by this act," and then proceeds to specify the cases in which a defendant may be arrested, none of which include suits on contracts, without fraud or deceit.

A libel and warrant of arrest in personam in admiralty is a civil action, within the fair and proper classification of remedies, and this interdiction of arrest in connection with the act of 1841 would give to defendants in admiralty the same exemption from arrest, as defendants have under processes from the courts of law and equity.

There is no doubt that Congress may, by clear enactment adopt the prospective legislation of the States and impart to it the effect of an act of Congress. (U. S. v. Paul, 10 Peters, R. 150.) Upon the same principles Congress can confer on the U. S. Courts power to regulate process or practice in conformity to existing State laws, or direct it to be conformed to future legislation of the State upon the subject. (13 Peters 45, Ross vs. Duval.

All regulations relating to processes of courts are regulations of practice (10 Wheat. 1.) In this the United States jurisprudence is wholly distinct and independent of that of the States, and accordingly the local methods of proceeding govern the United States Courts, only in so far as they are sanctioned by authority of Congress or the courts. This authority is expressed as well by rules which the courts are empowered to adopt as specifically by statutory enactment.

The acts of Congress to abolish imprisonment for debt, assume to act only over process and are merely provisions regulating the practice of the United States courts. They are not placed on high principles

U. S. District Court.-Gaines v. Travis.

of humanity or public policy. They profess no more than a purpose to conform to the processes employed by the States where the courts exercise jurisdiction, forbidding the imprisonment of debtors when not allowed by the laws of one State, and permitting it whenever authorized by the laws of others.

Accordingly if the legislature of New-York at its present session should rescind the Code of Practice promulgated the last, this provision, which is supposed to stand in connection with the act of Congress of May 14, 1841, would eo instante cease to have influence over. the proceedings of the United States Courts.

It becomes necessary, therefore, to examine a subsequent act of Congress, to see whether this matter has not been otherwise disposed of so as not to fall within the regulation of the State legislature enacted posterior to that statute.

The act of August 23, 1842, (4 U. S., 518 $6) confers upon the Supreme Court "full power and authority to prescribe and regulate, and alter the forms of writs and other process to be used and issued in the district and circuit courts of the United States, and generally to regulate the whole practice of said courts."

In January Term, 1845, the Supreme Court adopted a body of rules governing the United States Courts in admiralty proceedings, and the portions of those rules before cited, fully authorize the form of process used in this case.

The question then is, does the existing law of New-York in connection with the act of Congress of May 14, 1841, prevent the operation of the act of August 23, 1842, and the rules of the Supreme Court established under its provisions.

It seems to me that a common principle of construction must be applied to this varied legislation.

In my view of the subject the act of Congress of May 14, 1841, standing by itself, must have taken effect the same as if it had incorporated the State enactment of 1848 in its provisions, and that so composed, it would interdict suits in admiralty as civil actions, being prosecuted to arrest and imprisonment in matters of contract and debt.

Upon the same principle the rules of the Supreme Court of 1845 are to be regarded as passing into and taking the force of the provision of the act of Congress of August 23, 1842. Manifestly, then that act so modified, or rather completed, would operate as a suspension of the act of 1841, the provisions in the two, standing in direct contradiction in this particular; the latter statute having prescribed a different method of regulating the processes of admiralty courts and their force and effect and the criterion which should determine whether imprisonment for debt should continue to be enforced on this peculiar process. Nor is this result avoided by the circumstance that the law of New-York is posterior to the act of 1842. It does not possess the quality of bringing down to its period of enactment the antecedent act of 1841, but upon all sound principles of construction, so much of that act as might in any way intercept the full effect as

Blackstone's Commentaries.-Use of Port Wine.

the act of 1842, was suspended or repealed by the latter. So long as this last one continues in force it must supply the absolute law on the subject. From the time the rules of the Supreme Court were adopted, the act of 1842 must therefore be construed to embody those rules in its provisions, and thus empower the arrest of respondents on process issuing from courts of admiralty, and the act of 1841 must accordingly be interpreted in subordination to it and so as not to impugn that power, by subjecting it to be controlled by the after legislation of the States. (11 vol. Decisions, MSS. Gardner vs. Isaacson.

I do not enter into the discussion, whether upon this construction of the act of 1842, the Supreme Court may not also extend to courts of law and equity, the same power to arrest and imprison on process that is given in admiralty causes. The point is not before me for adjudication, and although that is a legitimate and forcible consideration, on weighing the probable intent and meaning of Congress in the entire provision, it is not in my judgment of such force as to justify me in holding that the Supreme Court had misinterpreted their powers under the statute in relation to the admiralty practice, or that the act of 1841 should be expounded to draw within its provisions cases clearly not covered by it at its enactment, and brought into existence by State legislation subsequent to the act of 1842 and the rules of the Supreme Court promulgated under the authority of the latter act.

The practice of the admiralty courts continuing the arrest of parties under their process subsequent to the acts of Congress of 1839 and 1841, is strong evidence of the acquiesence of Congress and the public in the exposition put upon those statutes, and more especially since the promulgation of the rules of the Supreme Court in 1845, when the authority to arrest and imprison on admiralty process was solemnly recognised and declared by that high tribunal, and the courts having proceeded openly under those rules to arrest and imprison parties on mesne and final process, must it be accepted that the intent and meaning of Congress in the act of 1842 was to place the regulation of this subject, so far as respects the U. S. Courts, under the direction of the Supreme Court, and not, leave it subject to the changeable legislation of the States.

I accordingly pronounce against the motion on all the points raised; but they being of novelty and importance, the decision is without

costs.

BLACKSTONE'S COMMENTARIES-USE OF PORT WINE.

DR. SCOTT (Lord Stowell) talked of its having been said that Addison wrote some of his best papers in the Spectator when warm with wine: Dr. Johnson did not seem willing to admit this. Dr. Scott, as a confirmation of it, related that Blackstone, a sober man, composed his "Commentaries" with a bottle of port wine before him and found his mind invigorated and supported in the fatigues of his great work by a moderate use of it. BOSWELL's Life of Johnson, by Croker, p. 67.

N. Y. Court of Appeals.-Leavitt v. Blatchford and others.

N. . Court of Appeals.

[State of New-York.]

Before FREEBORN G. JEWETT, Chief Judge, and Judges GREEN C. BRONSON, ADDISON GARDINER, and CHARLES H. RUGGLES, and ex-officio Judges JAMES G. HOYT, WILLIAM H. SHANKLAND, SELAH B. STRONG and DANIEL CADY.*

DAVID LEAVITT, Receiver, Appellant, v. RICHARD M. BLATCHFORD and JAMES B. MURRAY, Trustees, and PALMERS & Co., of London, and others, Respondents.

APPEAL FROM A DECREE OF THE SUPREME COURT.

Banking corporations under the General Bank Law of 1838, are expressly prohibited by the act passed May 14th, 1840, from issuing any bill or note not payable on demand and without interest-the prohibition applies alike to all bills and notes issued by a banking association payable on time or payable with interest.

The statute contains no qualification, that the prohibition applies only to notes and bills capable of circulating as money-the prohibition is in terms general and comprehensive"no banking association shall ISSUE, or put in circulation any bill or note unless payable on demand, and without interest."

Negotiable promissory notes and bills of exchange, payable at a future day, when issued by a bank in good credit, may perform the office of a circulating medium-the issue of such paper belongs to mercantile and commercial transactions, and not to the business of banking. The prohibitions of the safety fund statute of 1829, and of the act of May, 1840, extend to negotiable promissory notes and bills of exchange, payable at a future day. The issue of the 48 notes, being prohibited by law, the notes themselves are void-to hold that such notes can be enforced against the bank would defeat the end the legislature had in view. Certificates of deposit would have been negotiable promissory notes, coming within the prohibition of the statute, and would be equally void.

A prior debt cannot, nor can any other good consideration support a new contract, which is in itself, contrary to law.

A promise forbidden by law, although founded on a good consideration, is void.

A legal end cannot be obtained by illegal means.

A trust created, to secure the performance of an illegal promise, cannot be supported.

If parties mistake the law in making an agreement, a court of equity cannot grant relief, by making a new contract for them. Hunt v. Rousmauiere, (2 Mason, 342, S. C. 8 Wheat., 174, 3 Mason, 294, 1 Peters, 1,) cited and approved.

This was an APPEAL from a decree of the Supreme Court, made at the New-York General Term of November, 1848.

The bill was filed by David Leavitt, as Receiver of the North American Trust and Banking Company, a banking corporation under the general bank law of 1838.

The main object of the bill was to set aside, as illegal, a trust deed made by said bank, and dated November 30th, 1840. This deed conveyed to Blatchford and Murray, as trustees, bonds and mortgages amounting to $327,000. (A copy of this deed will be found at the end of the case.) The bank was the party of the first part to the deed-Blatchford and Murray parties of the second part-and Palmers & Co., of London, were parties of the third part.

* Mr. Justice Cady was absent, having previously given an opinion in the case.

N. Y. Court of Appeals.-Leavitt v. Blatchford and others.

The deed recited, that the bank had therefore granted a credit to Thomas E. Davis, upon Palmers & Co., and that thereupon Davis had drawn bills of exchange on Palmers & Co., for £46,875 sterling; that such credit had been created exclusively for the benefit of the bankand that the proceeds of the bills of exchange had been paid over by Davis, to the bank; that the bank was desirous that the credit or exchange thus created, should rest upon the bank, and that Davis should be discharged, and that Palmers & Co., should make claim for the amount, only against the bank and against the securities thereby agreed to be deposited for their indemnity; and that the bank had on that day caused the bonds and mortgages, &c., mentioned in the schedule thereto annexed, to be assigned to Blatchford and Murray, as trustees, for the purposes aforesaid, and as thereinafter more particularly expressed; and that the bank had on that day caused to be executed and delivered, their CERTIFICATES OF DEPOSIT to Messrs Palmers & Co., amounting to the whole amount of said credit and interest and expenses thereon; and that said certificates of deposit were payable in twelve months from date, with interest, with the understanding that they were to be renewed, at the option of the bank, for six months longer; and that the covenants and agreements therein contained should be entered into between the parties to the said deed.

The first trust declared in the deed, was, that the trustees should hold the assigned securities in trust for the bank, until default should be made in the payment of the certificates of deposit: the second trust was, that the trustees should, after default in the payment of said certificates of deposit, hold the assigned securities in trust for the "holders of the said certificates of deposit," and should pay over the money by them realized unto the said "Palmers, Mackillop, Dent & Co., or any other parties who may then be the holders of said certificates of deposit."

It was proved in the case that certificates of deposit in form were never issued; but promissory notes were issued. The notes issued were all in the form following:

"£1000 St'g.

No.

NEW-YORK, Nov. 30, 1840. Twelve months after date, the North American Trust and Banking Company, promise to pay to the order of Wm. R. Cooke, for value received, the sum of one thousand pounds sterling, with interest thereon, at the rate of seven per centum per annum, payable at the banking house of Messrs. Palmers, Mackillop, Dent & Company, THOS. G. TALMAGE, President.

London.

WALTER MEAD, Cashier.

This note is issued in pursuance of a deed of trust executed between the company, and Richard Milford Blatchford and James B. Murray, Trustees, and the payment of the same is guaranteed by the securities thereby transferred.

(Endorsed by Cooke in blank.)"

It was also proved in this case, that by an order entered by the