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Holmes v. Lansing.

The remedy still exists, in force and effect.

That general prohibition cannot be understood to apply to all the detail of municipal regulations, rendering more easy, or less incon. venient, the process and proceedings for the recovery of debts. The manner of arresting and holding to bail; the proceedings in a suit to judgment; the time and mode of taking out execution; the regulation of sales on execution; the discharge of persons in execution, after 30 days or after 3 months, on terms; the establishment and regulation of the liberties of jails, are provisions, which have most of them been made or amended since the the constitution of the United States; and are all, more or less, liable to the same objection. The constitution could not have an eye to such details, so long as contracts were submitted, without legislative interference, to the ordinary and regular course of justice, and the existing remedies were preserved in substance, and with integrity.(6)

(b) In Mason v. Haile, (12 Wheaton, 370, 378,) Mr. Justice Thompson who delivered the prevailing opinion, said, “Can it be doubted but the legislaturus of the States, so far as relates to their own process, have a right to abolish imprisonment for debt altogether, and that such a law might extend to present, as well as future imprisonment? We are not aware that such a power in the States has ever been questioned. And if such a general law would be valid under the constitution of the United States, where is the prohibition to be found, that denies to the State of Rhode Island, the right of applying the same remedy to individual cases? This is a measure which must be regulated by the views of policy and expediency entertained by the State legislaLures. Such laws act merely upon the remedy, and that in part only. They do not take away the entire remedy, but only so far as imprisonment forms a part of such remedy. The doctrine of this Court in the case of Sturges v. Crowninshield, (4 Wheat. Rep. 200,) applies with full force to the present case. •Imprisonment of the debtor,' say the Court, may be a punishment fur not performning his contract, or may be allowed as a mean for inducing him to perform it. But a State may refuse to inflict this punishment, or may withhold it altogether, and leave the contract in full force. ImprisonInent is no part of the contract, and simply to release the prisoner, does not impair its obligation.” In Reed v. Fullum, (2 Pickering R. 158,) it was held that a bond for the debtors' liberties restrains the debtor within the liberties established by law for the line being. And it was held, that the statute of the 10th of February, 1823, narrowing the liberties in Suffolk after the 15th of May following, was not unconstitutional as applied to a bond given before

Holmes v. Lansing.

As to the interpretation of this act, I remain of the opinion which was given by the late Ch. J. in the case of Dole, Sheriff, fc. V. Moulton and others, (2 Johns. Cases, 205,) that on tender of the bond prescribed, it was made the sheriff's duty to grant the prisoner the liberties; that the words "shall permit," &c. "provided,” &c. are imperative, on the condition being performed, and that by the sound construction of the act, the bonds to be taken were only for the sheriff's indemnity. If this be the true construction of the act, it must follow, that the sheriff might waive his indemnity, and grant the liberties without such bond. The jails were to be considered as *enlarged from the (*76) four walls of the ancient law, to the assigned limits; and so long as the prisoner was within those limits, so long was he to be considered, in judgment of law, as in prison. The act of 30th March, 1799, has put this construction beyond doubt, by a declaratory section.

The court are, therefore, of opinion, that judgment must be for defendant.

Judgment for the defendant.(c)

the passing of the act, but that the principal in such bond, having after the 15th of May made use of the liberties in their former extent, was guilty of an escape. (see also Walter v. Bacon, 8 Mass. R. 468 ; Gray v. Munroe, 1 M'Lean, 528 ; Woodfin v. Hooper, 4 Humphrey, 13; Fisher v. Lucky, 6 Blackford, 373. Story's Comm. on the Const. vol. 3, p. 251, § 1379; Fitck 5. Badger, 1 Root, 72.

(c) (Old note.) See 4 Jobns. Rep. 45. 5 Johns. Rep. 89, 182. 6 Johns. Rep. 121. 7 Johns. Rep. 165, 168, 175, 289.

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Where a vessel was seaworthy at the time she sailed, and on the morning of

the next day, suddenly sprung a leuk and was lost, without any stress of weather, or other visible cause, to which the leak could be ascribed, it was held, that the loss was to be imputed to some latent and inherent defect in the vessel, which rendered her unworthy, and for which the insurer was not liable.

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This was an action on a policy of insurauce, dated the 31st December 1796, on a vessel called the Peggy, at and from Turk's Island to New-York. The cause was tried at the New York circuit, the 8th April, 1801, before Mr. Justice Kent, when the jury, without going from the bar, found a verdict for the plaintiff.

The deposition of Joseph Millett, mate of the Peggy, taken at Baltimore under a commission, was read in evidence. He deposed that the Peggy arrived at Turk's Island on the 8th November, 1796, and remained there till the 12th, when she went to sea, tight, staunch and strong, and competent, in point of strength and ability, to perform the voyage, and having on board a full cargo of salt, bound to New-York; that in the evening of the same day, the Severn, a British ship of war, pressed three of the crew, The master of the Peggy waited till 8 o'clock in the evening, to endeavour to get back his men, but they not returning, and the Severn having made sail, the Peggy put about, in order to return to Turk's Island to obtain three seamen, to supply the places of

those that had been taken out, which was a measure [*77] "absolutely necessary, as the remainder of the crew

were not sufficient for the navigation of the vessel. About one o'clock the same night, the man at the helm called out to the witness, that the Peggy was waterlogged, and he went on deck and sounded, and found that she had three and a half feet water in her hold, which she must have made after 12 o'clock, at which time the pumps were tried and the vessel was found tight. They tried, but could not

Patrick v. Hallett.

keep her free, and, the next day, being in sight of Turk's Island, they quitted her in the boat, and she was wrecked on one of the islands. The witness further deposed that the loss of the Peggy was occasioned by the sudden spring. ing of a leak, in the manner before mentioned, and not by any storms, violent winds, currents or accidents of the sea. That he himself, the captain and some of the crew made a protest concerning the manner of the loss of the Peggy on Turk's Island, which had been lost in Baltimore, in July last, with his pocket-book, but which protest was substantially the same with what the witness stated in his deposition.

Christopher Miller, a sea captain, testified that he thought a vessel might be lost by many ways, within a day or two after she sailed, and yet be seaworthy, and mentioned several instances in which it might happen, such as where the fluke of an anchor strikes in she ship's bottom, or a stone is forced in while the ship lies aground in a dry dock. He knew an instance of a fish having twice forced its horn through a vessel's bottom, which made her leak; but in that case the ship's crew lightly felt the shock. That at Turk's Island the water was seven fathoms deep, and there were no dry docks.

Hugh Stocker, a sea captain, also sworn as a witness for the plaintiff, was of opinion that a vessel might spring a leak and be lost, immediately after her sailing, and yet be seaworthy, and mentioned nearly the same instances as Miller, the other witness; but being asked whether such a case as this could happen, unless it was owing to (178) some desect in the timbers or plank of the vessel, both witnesses answered, that it might have happened from a butt starting, which had not been so well fastened, or from some such trifling defect. Both witnesses declared that new vessels, perfectly seaworthy, and on their first voyages, sometimes foundered at sea, from causes not visible or known. Four out of six of the underwriters on the policy had settled the loss, on the first production of the protest and other papers. The judge stated the law to be, that if the vessel VOL. III.


Patrick v. Hallett.

was not seaworthy, whether the assured knew it or not, the
policy was void.

The cause was argued by
Pendleton, for the defendant, and
Troup and Hamilton, for the plaintiff.

Per Curiam. On the facts stated in the case, we are of opinion, that the law will intend a want of seaworthiness, because no visible or rational cause, other than a latent and inherent defect in the vessel, can be assigned for the loss ; and insurers do not insure against latent defects. The verdict was, therefore, against the conclusion, legally to be drawn from the facts, and there ought to be a new trial, on payment of costs.

New trial granted.(a)()

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(a) Old note.) This cause, aster a second trial, came before the court again, on a demurrer to the evidence, which was substantially the same as stated in this case, and Mr. Justice LIVINGSTON, in delivering the opinion of the court, (KENT, Ch. J. dissenting,) laid down the doctrine, that is a vessel be seau orthy at the timo of her sailing, and, afterwards, suddenly spring a leuk and founder, without any stress of weather or apparent cause,

it is a loss by the perils of the sea, and the plaintiff was entitled to recover. (1 Johns. Rep. 241.) But in Talcot v. The Commercial Insurance Company, (2 Johns. Rep. 124,) the court adhered to the doctrine laid down in the above case, and by Marshall, Park, Valio, Emerigon, and other foreign writers on insurance, " that if iho ship becomes ivnavigable, the presumption shall be, that it proceeded from the age and rottenness, or other defect of the ship, unless it be made to appear to have been occasioned by sea damage, or some unforeseen accident;" (Marshall, 2d edit. 156. Pothier, Trait. des Ass. n. 66 Emerig. vol. I, p. 575, 677, 580,) and Mr. Justice Spencer, in delivering the opinion of the court in that case, considered that this legal presumption was countervailed by peculiar circumstances in the case of Patrick v. Hal. lett & Bowne, which distinguished that case from the one then before the court. (See also, Barnewell v. Church, 1 Caines' Rep. 217, 245, 246.1 Binney, 592.)

(b) Mr. Phillips lays it down, that " is a vessel spring a leak, or become disabled, or some essential defect is discovered, soon after the risk commen: ces, without any apparent cause from the perils within the policy; or, rather, when it satisfactorily appears that no accident can have happened to occasion the damage or delect, it is inferred that she was defective at the begin. ning of the risk, and not seaworthy.” (1 Phillips on Ins. ed. 1840, p. 324.) Thus where a vessel sailed from London 10 Portsniouth, where her timbers

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