what relief does he enjoy, if his discharge do not operate as a bar to this action?

All the former cases on this subject are, as to the effect of a discharge, obtained in one country on an action instituted in another where the debt was contracted. They, therefore, do not decide this point. Here the court is to decide upon the effect of a discharge obtained under the laws of its own State. The question is, whether our own laws or those of England are to be pre-eminent.

LORD KENYON, actuated by a principle which might at least be called contracted and narrow, has decided that a discharge under our insolvent law of 1787 does not bar suit, commenced in Great Britain by a subject of that country, on a cause of action accruing there. (Smith v. Buchanan, 1 East, 6.) So too in New York a similar adjudication has been made. (Van Raugh v. Van Arsdaln, 3 N. Y. T. R. 154.)

But in Pennsylvania a debtor who had been discharged by our laws was protected by an exoneretur. (Miller v. Hall, 1 Dall. 229; Thompson v. Young, 1 Dall. 294; Donaldson v. Chambers, 2 Dall. 100; Harris v. Mandeville, 2 Dall. 256; and a full review of question in East's Reports, ubi supra, 4 Durn. & E. 192, and Cowp. 824.)

Our case is very different. We claim the benefit of our own laws in our own State. However it may be contended, that the plaintiff never gave his assent to this law, and that therefore [262] his claims should not be affected. It is a sufficient answer to say that he comes voluntarily into your courts to demand jus tice, and he must be content to receive it according to the regulations which are prescribed to you by the legislative power.

In the construction of contracts the lex loci where they are executed is observed, but in applying a remedy for a breach, you must be governed by the laws of the place where the suit is brought.

The counsel then read an extract from 2 Huberus B. Tit. 3, pp. 1, 26, translated in 3 Dall. 370, note, on the effect of contracts made in one country and attempted to be enforced in another; and, on the effect of foreign judgments, JUDGE WASHINGTON'S opinion. (Hall L. J. p. 192.)

If the principal were to be brought into court in discharge of

his bail, he would be entitled to a release on common bail. The effect of this application is no more. It is doing the same thing and waiving an idle and nugatory ceremony.

CHASE, C. J.-This is a question about which much diversity of opinion prevails, and I understand that different decisions have been made in the different States. It is a point which is of great consequence to foreign creditors particularly, and therefore it ought to receive a more solemn deliberation than can be had in a mere side-bar motion.

The party should have every opportunity to put facts in issue, and courts will generally endeavor to have facts submitted to a jury. A discharge may be obtained in an improper manner. The certificate is not conclusive. It may be inquired into. This very case shows the necessity of inquiring into it. The defendant was bound to give a true list of all his creditors, but we do not find the plaintiff's name among them.

Justice requires that the property should be divided among all the creditors; but a foreign creditor is not within the law. He cannot claim a dividend, nor can he even come in to allege fraud in prevention of the discharge. Is it honest, then, that a plaintiff so circumstanced should be precluded from every means of recovering a debt?

upon

[203] Let the defendant plead this discharge, if he wish to rely it. I certainly cannot consent to enter an exoneretur. HOUSTON, Justice, thought it unnecessary to give any opinion on the effect of the record of the discharge. The proper course would be to bring it before the court under a plea.

Upon this ground alone he agreed with the Chief Justice, to overrule the motion.

EX PARTE ADAM GILCHRIST ET AL. v. THE COLLECTOR OF THE PORT OF CHARLESTON. [U. S. Circuit Court, District of South Carolina, 1808.-1 Hall L. J. 429.] MANDAMUS TO COLLECTOR OF THE PORT TO GRANT CLEARANCE. - The Circuit Court has power to issue a mandamus to a collector, commanding him to grant a clearance.

CONSTITUTIONAL LAW-INSTRUCTIONS OF EXECUTIVE, LEGALITY OF. - All instructions from the executive, which are not supported by law, are illegal and no inferior officer is bound to obey them.

A motion was made by Mr. Ward for rule on the collector to show cause why a mandamus should not be issued against him, to compel the granting of clearances for the ship Resource, Moreton; ship Two Pollies, Wilder; ship Navigator, Bowden; ship Rising States, Anderson; and ship Lousia Cecilia, Fowler, founded on the following affidavit :

"Adam Gilchrist and J. S. Barker, of Charleston, merchants, being severally sworn according to law, depose, that the American register ship Resource arrived from a foreign voyage in the port of Charleston about six months since, owned one half by the deponent, J. S. Barker, residing in Charleston, and the other half by American citizens residing in Baltimore; that the deponent representing the owners aforesaid, apprehensive that the bottom of the ship might, by her being detained here during the embargo, be totally destroyed by worms, did for that reason determine on sending her to Baltimore and regularly advertised for freight to said port of Baltimore; that having obtained the promise and actually engaged the freight [430] of about six hundred bales of cotton, it became requisite to ship either ballast or heavy freight, so as to enable the said ship to be navigated with safety; the ballast not being obtainable, these deponents, about three weeks since, agreed to carry to Baltimore about two hundred barrels of rice, freight free, and that the same was shipped by permit from the custom house, and under the inspection of a revenue officer about two weeks since; that on application for a clearance of the said ship and her cargo to Simeon Theus, collector of the port of Charleston, duly commissioned and authorized to exercise and perform the duties of said public office of collector of the port aforesaid, he hath refused to grant a clearance to said vessel and cargo, alleging that although he hath no suspicion that the clearance demanded is to cover an ostensible voyage to Baltimore, or to infringe or evade the existing laws relative to the embargo, and although he admits that the said ship was laden previously to his receipt of the act of Congress, respecting the embargo, under date of the 25th April, ult., yet that he is bound to refuse such clearance, under the directions of the executive of

the United States, which he conceives he is bound to obey; that these deponents have just right under the law to obtain from said Simeon Theus, collector as aforesaid, the clearance so withheld and refused to be granted.

"ADAM GILCHRIST,

"J. SANFORD BARKER.

"Sworn before me this 24th of May, 1808.

"JOHN WARD, Q. U."

Upon the return of the rule the defendant showed the following

cause:

United States, South Carolina District, Federal Circuit Court. Ex parte Simeon Theus, Esquire, Collector of the Port of Charleston.

Rule to show cause why a mandamus should not issue, requir ing him to grant clearances of certain vessels.

Simeon Theus, collector of the port aforesaid, on whom a copy of the above rule has been served for cause, showeth :

[431] "That in and by a certain act of Congress of the said United States, passed the 25th day of April, 1808, it is, in the eleventh section thereof, amongst other things, enacted: 'that the collectors of the customs be, and they are hereby respectively authorized, to detain any vessel ostensibly bound with a carge to some other port of the United States, whenever, in their opinion, the intention is to violate or evade any provisions of the acts laying an embargo, until the decision of the President of the United States be had thereupon.' Also, that in and by a certain circular letter from the treasury department of the United States, dated the 6th of May, 1808, and addressed to the said Simeon Theus, as collector aforesaid, he is instructed as follows: [Here follows the circular instructions of Mr. Gallatin.] That the said Simeon Theus, collector as aforesaid doth not detain the vessels as aforesaid, under the act aforesaid, because in his opinion there is no intention in the parties aforesaid to violate or evade any of the provisions of the acts laying an embargo, but that he detains them under the instructions he has received in the letter aforesaid, and which as a public officer he thinks he is bound to obey. That being unwilling, on the one hand, to injure individuals, and, on the other, equally so, to commit a breach of his duty, he submits the question to the court, upon the cause above shown. "SIMEON THEUS, Collector."

The case was then submitted without argument.

JOHNSON, J.-"The affidavit, upon which this motion is founded, states that the ship Resource is ballasted with one hundred and forty barrels of rice, under a load of cotton, and is destined for the port of Baltimore. The collector, in his return to the rule, acknowledges that he believes the port of Baltimore to be her real destination; and that, if he had no other rule of conduct but the eleventh section of the act supplementary to the embargo act, he would not detain her; but urges in excuse, for refusing her a clearance, a letter from the secretary of the treasury. It is not denied that if the petitioners be legally entitled to a clearance, this court may interpose its authority, by the writ of [432 mandamus, to compel the collector to grant it. The only questions, therefore, will be whether the section of the act alluded to authorizes the detention of the vessel; and if it does not, whether the instructions of the President, through the secretary of the treasury, unsupported by act of the Congress, will justify the collector in that detention. On the latter question there can be no doubt. The officers of our government, from the highest to the lowest, are equally subjected to legal restraint; and it is confidently believed that all of them feel themselves equally incapable, as well from law as inclination, to attempt an unsanctioned encroachment upon individual liberty. In the letter alluded to, Mr. Gallatin speaks only in the language of recommendation, not of command; at the utmost the collector could only plead the influence of advice, and not the authority of the treasury department in his justification.

"In the act of Congress there is no ambiguity. The object is to prevent evasions of the embargo act, by vessels which sail ostensibly for some port in the United States, when their real destination is to some other port or place. The granting of clearances is left absolutely to the discretion of the collector; the right of detaining in cases which excite suspicion is given him, with a reference to the will of the executive. Congress might have vested this discretion in the President, the secretary of the treasury, or any other officer, in which they thought proper to vest it; but, having vested the right of granting or refusing in the collector, with an appeal to the President only in case of