The respondents deny that they compose the Company, and that Flitner acted as their agent, &c.; and they say that the lumber was shipped on account of the said vessel and of said Company, the said vessel being interested in said Company, and that the transaction was a partnership one, and not a subject of jurisdiction in this court; that Flitner, named as a libelant, was and is interested, and one of the parties in the "Constellation Lumber Company," and is a proper party respondent herein; that the subject matter of the suit is not within the admiralty or maritime jurisdiction of this court, and of which it has no cognizance.

It was agreed that ten persons named-about the 22d of September, 1849—of whom William L. Flitner was one, constituted the Lumber Company, each individual taking one share, not to exceed in value $500, with the exception of Flitner, who took two shares, and Hicks and Bailey also took two. That Flitner was the agent of the Company and the consignee, a commission of five per cent. to be paid to him; that the ship Constellation belonged to the libelants, and that Flitner was master and part owner; that the Lumber Company purchased the cargo, and it was shipped the 12th November, 1849, and a bill of lading was signed by Flitner.

The proof shows that the lumber was sold at San Francisco for the prices stated, and that the proceeds of the sale, after deducting commissions, fell short of paying the freight, the sum named.

The principal question is, whether the case made is within the admiralty jurisdiction. That it would not be within the admirality jurisdiction in England is clear. In general, contracts upon land, though to be executed on the sea, and contracts at sea, if to be executed on the land, are not cognizable by the English admiralty. There are some exceptions to this rule in that country; but none, it is believed, which affect the question now before us. There are conflicting decisions as to the admiralty jurisdiction in England, and also in this country. It may be difficult, if not impracticable, to state with precision the line of this jurisdiction, but we may approximate it by consulting the decisions of our own courts.

In the case of Willard v. Dorr, 3 Mas., 91, it was held, "no suit for services performed by the master, as a factor, or in any other character than that of master, is cognizable in the admiralty." And again, in Plummer v. Webb, 4 Mas., 380, it was said, "a contract of a special nature is not cognizable in the admiralty, merely because the consideration of the contract is maritime. The whole contract must, in its essence, be maritime, or for compensation for maritime service." In 11 Peters, 175, The Steamboat Orleans v. Phabus, it was said the adiniralty has no jurisdiction in matters of account between part owners. And further, *the jurisdiction of courts of admiralty, in case of part owners, having unequal interests and shares, is not, and never has been, applied to direct a sale upon any dispute between them as to the trade and navigation of the ship engaged in maritime voyages, properly so called. Ib.

The jurisdiction of courts of admiralty is

limited, in matters of contract, to those, and to those only, which are maritime. 1b.

An agreement by the master of a vessel to pay wages, may be sued upon in the admiralty; but a stipulation in the same contract to pay a sum of money in case the voyage should be altered or discontinued, can be enforced only at common law. L. Arina v. Manwaring, Bee, 199. The admiralty jurisdiction of the District Courts of the United States, being exclusive, cannot be extended to cases of law or equity, cognizable by the Circuit and State courts, under the 11th section of the Judiciary Act. 1 Baldwin, 544.

A contract between two persons, one of whom had chartered a vessel, whereby he was to act as master, and the other as mate of the vessel, and the two were to share equally in the profits of the contemplated voyages, was held not to be within the admiralty jurisdiction. The Crusader, 1 Ware, 437. A distribution cannot be claimed in the admiralty, except by those who have a lien. 1 Pet. Adm., 223.

The Lumber Company was formed to engage in an enterprise of shipping lumber to San Francisco. Twelve shares were taken by the Company, consisting of ten persons, each hav ing one share of the value of $500, and two of them had two shares each, one of them being the master of the vessel. He was also a part owner of the vessel, the consignee of the cargo, and had a right of primage. As part owner of the vessel, he was entitled to his share of freight; and as being a member of the Lumber Company, having two shares in it, he was proportionately liable for the freight. In his capacity as master he was entitled to primage, and as consignee he was also entitled to compensation. Now, this individual, in interest, is both plaintiff and respondent, and has claims in his capacities of master, consignee and agent. The proceeds of the sale of the cargo, after paying commissions, left a balance due for freight of $2,449.09.

Here is a complicated account to adjust, apportioning the loss between the members of the Lumber Company, exacting from them what may be necessary, not only to pay the balance or freight due, but whatever may be required to discharge what may be due to the master as part owner of the ship, as master, consignee or agent, at the same time holding him liable, as having two shares in the Lumber Company. And in an enterprise in which the whole of the capital has been sunk, leaving a large sum due for freight, it would seem that some inquiry might reasonably be made into the conduct of the master in the various capacities in which he acted. And it is probable that, to settle the controversy, a procedure against the members of the Lumber Company may become necessary, to compel them to contribute respectively and equally what may be necessary to meet the exigency. It is clear that the exercise of the powers indicated do not belong to a court of admiralty, but are appropriate to a court of chancery.

The decree of the Circuit Court is affirmed, with costs.

Cited 6 Ben., 257; Taney, 588; 1 Cliff., 53.

JOHN E. HYDE AND JOS. H. OGLESBY, a Commercial Firm trading under the Name and Style of HYDE & Oglesby, Piffs. in Er.,

v.

HENRY L. STONE.

(See 8. C., 20 How., 170-176.) Jurisdiction of U. S. courts cannot be impaired by state law or practice-admissions of indorser, evidence to charge him-effect of such evidence is question for jury.

The jurisdiction of the courts of the United States over controversies between citizens of different

States cannot be impaired by the laws of the States, which prescribe the modes of redress in their courts, or which regulate the distribution of their judicial power.

The decision of the 5th District Court of New Orleans, transferring the suit, commenced by the plaintiff on his bill against the defendants, in that court, and directing it to be cumulated with the proceedings in bankruptcy which were pending in another court of the State, did not disable the plaintiff from commencing a suit in the Circuit Court, nor can it form a proper declinatory excep

tion to its jurisdiction.

A plaintiff may prove, by admissions of a defendant, that all the steps necessary to charge him as an indorser or drawer of a bill of exchange have been taken. Proof of an acknowledgment of his liability to pay the bill, is competent evidence to go to a jury as evidence of notice of dishonor. The effect of such evidence in the particular case must be determined by the jury, and their decision cannot be reviewed by an appellate court. Argued Feb. 3, 1858. Decided Feb. 15, 1858. THIS action was commenced by the plaintiff, Stone, in the Circuit Court of the United States for the Eastern District of Louisiana, upon a bill of exchange and protest, of which the following are copies:

The defendants excepted to the right of the plaintiff to maintain his action against them, on the ground that the court had no jurisdiction and that the matter was res adjudicata.

The case was tried in the Circuit Court upon a statement of facts, which is substantially as follows:

The plaintiff, Stone, began his action on a bill of exchange in the 5th District Court of New Orleans, on March 1, 1853. The defend ants filed exceptions to the jurisdiction of the court, upon the ground that they had made a surrender of the property to creditors in the 3d District Court of New Orleans, which surrender has been accepted, and all proceedings stayed against them, and that plaintiff was put upon their schedules as a creditor. The defendants prayed that the suit be transferred and cumulated with the insolvency proceedings in the 3d District Court of New Orleans. The 5th District Court decided that the exceptions be maintained. In the petition filed by the plaintiff in the 5th District Court of New Orleans, it was alleged that H. L. Stone resided in New Orleans, and on the trial of the exceptions it was proved that H. L. Stone was a member of the firm of H. L. Stone & Co., of New Orleans, and that that firm had carried on business in New Orleans during the last eight years, and was composed of H. L. Stone, who was absent from New Orleans during the sum mer months, and John A. Roberts, who was the resident partner.

On the trial, it was proved that H. L. Stone had always been a resident of Massachusetts.

The bill of exchange sued on was drawn and indorsed by defendants, and protested for nonpayment at maturity. The plaintiff performed no act to make himself a party to the insolvency proceedings in the 3d District Court of New Orleans, and no notice of the said proceedings had ever been served on the plaintiff.

The defendants, through error in regard to who was the true legal owner of the bill, placed the same on their schedule of insolvency as a debt due to H. L. Stone & Co., of New Or leans, when, in fact, it was held and owned by H. L. Stone, of Massachusetts.

Judgment was rendered in the Circuit Court for the plaintiff.

The defendants brought the case here on a writ of error.

Mr. J. P. Benjamin, for plaintiff in error: 1. The defendants are discharged from responsibility as drawers and indorsers of the bill by reason of the laches of the holder in failing to give notice of non-payment.

ference exclusively to protests made by notaries The law of Louisiana on this subject has refof that State.

Acts of 1855, p. 48.

The protest of a foreign bill of exchange is not legal evidence of any other fact than that of presentment and refusal to pay. A statement by the notary that he put into the postoffice a notice of protest to the drawer, is not evidence of the fact.

Even if the law of Louisiana were applicable,

the protest shows that it is not such a protest as is alone permitted by that law to be received as proof of notice. It is not signed by two wit nesses.

McAfee v. Doremus, 5 How., 53.

2. In the absence of proof of notice, an attempt is made to fasten responsibility on defendants by proof of waiver of notice.

The waiver is said to result from acknowlledgment of the debt set forth in the 8th article of the statement of facts.

To this presumption of waiver there are two fatal objections.

The first is, that it is nowhere stated at what date the acknowledgment was made. If the schedule of insolvency was filed before the maturity of the bill (and there is no proof of the contrary), it was still the duty of the insolv ents to place the bill on their schedule as a debt due by them.

Bainbridge v. Clay, 3 Martin's N. S., 262; Deslix v. Schmidt, 18 La., 466.

The second is, that an acknowledgment of indebtedness, as a waiver of laches, is confined to cases where the party making the acknowledgment knew of the laches.

Story on Notes, sec. 363, and notes; Story, Bills, sec. 320; Chit. Bills, p. 500, Am. ed., 1842: Thornton v. Wynn, 12 Wheat., 183.

In Louisiana, the doctrine is extremely rigid. See the cases and principles collected in Hennen's Digest, Verbe, Bills and Notes, XI. If the court holds that the proof justifies the judgment of the lower court in holding that the defendants received notice, or waived notice of the dishonor of the bill, still the defendants are protected by insolvency proceedings in Louisiana and the plaintiff's acts there.

A creditor or citizen in one State will be bound by the insolvent laws of another State.

Clay v. Smith, 3 Pet., 411.

The plaintiff has actually made himself a party to the insolvency, and has attained a judgment allowing him to participate in the insolvent fund.

Mr. Miles Taylor, for defendant in error: 1st. The judgment on the exceptions filed in the case in the 3d District Court of New Orleans, in the State of Louisiana, was not a final judgment, and is no bar to any other proceedings on the cause of action set up in the case. 2d. The fact that H. L. Stone, the plaintiff in the court below, was a citizen of Massachusetts, proved on the trial, and that the bill of exchange sued on was bought by him individually and with his personal funds, as shown by the statement of facts agreed to and signed by the parties, gave the Circuit Court of the United States, jurisdiction.

Constitution U. S.

3d. The defendant in error, H. L. Stone, performed no act to make himself a party to the proceedings in insolvency in the 3d District Court of New Orleans.

Statement of Facts, No. 7, Record, p. 6. 4th. The plaintiffs in error are legally bound to pay H. L. Stone the amount of the bill of exchange sued on, because, first, legal notice of its protest for non-payment was given them; and second, they acknowledged it to be due and owing by them in their schedule filed in the proceedings in their insolvency.

Shed v. Brett, 1 Pick., 401.

Mr. Justice Campbell delivered the opinion of the court:

The defendant in error instituted his suit in the Circuit Court, as the indorsee of a bill of exchange, payable in Boston, of which the plaintiffs in error were drawers, payees and indorsers, and which bears date at New Orleans.

The defendants answered the petition, and averred that the plaintiff was a citizen of Louisiana, and the said bill of exchange a Louisiana contract, and governed by the law of that State. That the plaintiff resided in Louisiana when the defendants surrendered their property in involvency in the Third District Court of New Orleans, and to the proceedings therein the plaintiff became a party. That, subsequently thereto, the said plaintiff instituted a suit on the said bill of exchange in the Fifth District Court of that city, and, on an exception filed by the defendants, informing that court of those facts, the same was sustained. and the said suit was transferred to the Third District Court of New Orleans, and made part of the aforesaid insolvent proceedings therein; by which the right of plaintiff to have and maintain this action in the Circuit Court is barred, and the question has become res judicata.

With this exception to the jurisdiction of the court, the defendants filed a general denial of their indebtedness to the plaintiff. The cause was submitted to the Circuit Court upon an agreed statement, and judgment was rendered for the plaintiff without the intervention of a jury.

From that statement it appears that the bill

notary in Boston certifies, "I sent notice of the non-payment to the drawers and first indorsers, requiring payment of them, by mail, to the New Orleans on the day of the protest. That the plaintiff has always been a citizen of Massachusetts; that his family resided there, and he had a commercial establishment there; that he is a partner in a commercial establish ment at New Orleans, and generally spent a portion of the winter months in that city, and then returned to Massachusetts; and that this bill was purchased in the City of New Orleans, on his own account. It further appears that the plaintiff, before the commencement of this suit, sued the defendant in the Fifth District Court of New Orleans, on this bill; that the defendant appeared and answered that the Fifth District Court had no jurisdiction, because the defendant had made a surrender of his property to his creditors in the Third District Court of New Orleans, which surrender had been accepted, and all proceedings stayed against him; and that the plaintiff was put upon his schedule as a creditor; and he prayed that the suit of the plaintiff be transferred and cumulated with the insolvency proceedings in the Third District Court in New Orleans; that thereupon the Fifth District Court, before the commencement of the present suit, decreed that the exception herein filed be maintained, and the costs paid out of the mass of the property surrendered. It further appears that the plaintiff performed no act to make himself a party to the proceedings in insolvency in the Third District Court, and that no notice of those proceedings had ever been served on him; but that the bill of exchange described in his petition was enumerated among his debts, and the firm of H. L. Stone & Co., of New Orleans, which was supposed to be the holder of the bill, was placed on the schedule among the other creditors of the insolvents.

The question whether a foreign bill of exchange, sold by a merchant in New Orleans to a person who has a commercial house there, but whose domicil is at the place where the bill is payable, and where he resided when the proceedings in insolvency were instituted, is affected by them when he does not make himself a party to those proceedings, is not involved in this case. The defendant did not plead the pendency of those proceedings, or the decree of the Third District Court, as a bar to the present suit, or afford any proper description of them to raise that question. The exception of the defendant is, that certain proceedings pending in the Third District Court were successfully pleaded in the Fifth District Court of New Orleans, as a cause for the removal of a suit commenced by the plaintiffs against the defendants in that court to the other, and that the decision of the Fifth District Court upon that plea ought to preclude the plaintiff from maintaining this suit in the Circuit Court of the United States. But this court has repeatedly decided that the jurisdiction of the courts of the United States over controversies between citizens of different States cannot be impaired by the laws of the States which prescribe the modes of redress in their courts, or which regulate the distribution of their judicial power. In many cases, state laws form a rule of decis