The

of England is the one uniform rule to deter- stance courts, Mr. Browne presents his readers mine the jurisdiction of our courts; and if any with the general conclusion to which his investribunals whatsoever attempt to exceed the tigations on this head had conducted him, in limits so prescribed to them, the king's courts the following words: "The result of our inof common law may and do prohibit them, and quiries in the present chapter, as to the extent in some cases punish their judges." So far, then, of the jurisdiction of the Instance Court of Adas the opinions of Hale and Blackstone are en-miralty which is at present seemingly allowed titled to respect-so far as the writings and by the common law courts, is, that it is condecisions of the venerable expounders of the fined in matters of *contract to suits for [*402 British constitution to which they refer may be seamen's wages (on all hands admitted to be regarded as authority- the origin and powers an exception to the rule restricting the admiralof the admiralty in England, the subjects per- ty to the sea), or to those on hypothecations. mittted to its peculiar cognizance, the control In matters of tort, to actions for assault, colexerted to restrict it to that peculiar cogni- lision, and spoil and in quasi contracts, to aczance by the common law tribunals, would tions by part owners for security, and actions seem not to be matters of uncertainty. Sir of salvage; but if a party," says he, “institute William Blackstone, too, is a writer of modern a suit in that court on a charter-party, for date, and, as such, his opinions may claim freight, in a cause of average and contribution, exemption from the influence of conflict of or to decide the property of a ship, and be not 401*] *bigotry or prejudice, which the ad- prohibited, I do not see how the court could vocates of the admiralty seem disposed to at- refuse to retain it." In this concluding passage tribute to the opinions or the times of Spel- from Mr. Browne's chapter on the jurisdiction man, of Fortescue, and Coke. of the instance courts, there are two circumPassing from the testimony of the writers stances which impress themselves upon our atalready mentioned, let us call in a witness as tention, as seemingly, indeed palpably, irreconto the admiralty powers and jurisdiction, as cilable with the law or with each other. existing in England for a century past, at least, first is the concession (a concession said to be whom no one will suspect of disaffection to made upon a general survey of the subject) as that jurisdiction. I allude to Mr. Arthur to the limit imposed by the common law tribuBrowne, Professor of Civil Law in the Univer- nals upon the admiralty; the second, tlie opinion, sity of Dublin, in whose learned book scarcely in the very face of this concession, that the adany assertion of power ever made by the ad- miralty, if it should not be actually prohibited, miralty courts, however reprobated and denied if it could only escape the vigilance of the by the common law tribunals, is not com- common law courts, might proceed, might mended, if not justified, and scarcely one re- make an incursion within this established, this trenchment or denial of power to the former is prohibited, nay, conceded boundary. Opinions not as zealously disapproved. Let us hear what like these evince an adherence to the admiralty this witness is compelled, through multo cum apparently extreme, and almost contumacious; gemitu, to admit, with respect to the jurisdic- and it may be owing to this division, that detion of the instance court in cases civil and cisions have been pressed into its support, maritime—cases identical in their character which, to my apprehension, do not come diwith that now under consideration. After directly up to the point they are called to fortify, lating upon the resolutions of 1632, and upon or, if they did, are too few in number and too what by him are designated as the irresistible | feeble to remove the firmly planted landmarks arguments of Sir Leoline Jenkins in favor of the powers of his own court, Professor Browne is driven to the following concessions. Of the common law courts he says (Vol. II., p. 74): "Adhering on their part to the strict letter of the rule, that the business of the admiralty was only with contracts made upon the sea, they here took locality as the only boundary, though in the instances before mentioned, of contracts made on sea, they refused this limit; and having insisted, as indeed Judge Blackstone has even of late done, that contracts upon land, though to be executed on the sea, and contracts at sea, if to be executed on land, were not cognizable by the admiralty, they left to it the idle power of trying contracts made upon the sea to be also executed upon the sea, of which one instance might not happen in ten years." Again (p. 85), speaking of what he characterizes as "the torrent of prohibitions which poured forth from the common law courts," he tells us, that "little was left for the authority of the admiral to operate upon, in the subject of contracts, amidst those curbs so eagerly and rapidly thrown upon him in the last century, save express hypothecations of ship or goods made at sea or in foreign ports, and suits for seamen's wages." At the close of this chapter on the jurisdiction of the in

of the law. Thus the case of Menetone v. Gibbons, 3 T. R. 267, is cited as authority that the admiralty has cognizance over contracts, though executed on land and under seal. This case, it is true, is somewhat anomalous in its features, but yet it is thought that no fair exposition of it can warrant the conclusions attempted to be deduced from it. Notwithstanding some expressions which may have fallen from some of the judges arguendo, it is certainly true that every justice who decided that case put his opinion essentially upon these foundations: that the case was one of a hypothecation of the ship, in the course of a foreign voyage, by the master, who had a right to hypothecate; that the contract provided for or gave no remedy except in rem, whereas the common law courts proceed against the parties only; that if the court should decide against the admiralty jurisdiction (and this, too, after a sentence of condemnation and sale of the ship), being unable to give any redress under the contract by proceeding in rem, the party making the advances would be irreparably injured. This case should be expounded, too, in connection with that of Ladbroke v. Crickett, decided by the same judges twelve months previously (2 T. R. 649), in which a [*403 natural distinction is taken between the extent

of the right to prohibit the jurisdiction of the of the suit, and not at the end of it." The admiralty before sentence, and the right to case of Smart v. Wolff, then, is assuredly no impeach its proceedings after they are con- direct authority, if authority at all, to summated and carried into execution without sustain the theory or the partialities of interference. In the latter case, Buller, whose Professor Browne. Indeed, the utmost that remarks have been quoted from Menetone v. can be drawn from this case in favor Gibbons, says (p. 654): "There is a great of those theories is an expression of bedifference between applications to this court for lief, by Justice Buller, that my Lord Coke prohibitions to the admiralty pending the suit entertained not only a jealousy of, but an enand after sentence: in the first case, this court mity against, the admiralty; a belief which, will examine the whole case, and see the whether well or ill founded, must be equally grounds of the proceedings in the admiralty: unimportant-equally impotent to impugn an but the rule is quite the reverse after sentence inveterate, a confirmed, nay, an admitted is passed: in such a case, they will not look out course and body of jurisprudence. Upon a reof the proceedings; for the party who applies view of all the authorities to which I have for a prohibition after sentence must show a had access, the conclusion of my mind is cernullity of jurisdiction on the face of the pro-tain and satisfactory, that, with some tempoceedings; therefore the plaintiff in this case rary deviations or irregularities, such as the could not go into evidence at the trial to im- resolutions of 1632, the jurisdiction of the peach the decree of the Court of Admiralty. Instance Court of the Admiralty, both by the The case states, in general terms, that that common law and by the statutes of 13 and 15 court did pronounce a decree for the sale of Richard II., down to the period at which, durthe ship in question, and that a warrant issued ing the reign of the present queen, that jurisout of that court for seizing and selling the diction was enlarged, was, in matters of conship. So that we must take it that they had tract (with the known exception of seamen's jurisdiction, for nothing appears on the face of wages), limited to maritime contracts made the decree to show that they had not." Show- and to be executed upon the high sea, and to ing, conclusively, that this case determined cases of hypothecation of the ship upon her nothing as to the original legitimate powers voyage; and in matters of civil tort, to cases either of the common law or admiralty tri- also occurring upon the sea, without the body bunals, but positively refusing to institute a of the country. But this restriction upon the comparison between them. The next case ad- jurisdiction of the instance courts of England, duced by Mr. Browne, and the last which I so uniformly maintained by the common law shall notice, is that of Smart v. Wolff, 3 T. courts of that country-acknowledged, howR. 323. The first remark which is pertinent ever condemned, by Mr. Browne, and admitted to this case is, that it was a case of prize, one in argument in this case-it is contended, does of a class universally admitted to belong pe- not apply to the powers and jurisdiction of the culiarly and exclusively to a court of ad- like courts in the United States, and did not miralty; and the question propounded in it, and apply at the period when the federal Constituthe only question, was as to the proceeding tion was adopted, but that a jurisdiction more practiced by the court for carrying into effect varied and enlarged, as practiced in the British this, its undoubted jurisdiction. There the colonies in North America, and under the goods had been, by an interlocutory order, de- general confederation at the adoption of the livered to, the captors, upon a stipulation to Constitution, was in the contemplation of the respond for freight, if allowed on the final de- framers of this Constitution, and must therecree; and the amount of freight ultimately al- fore be referred to as the measure of the lowed being greater than that covered by the powers conferred in the language of the second stipulation, the court, by a proceeding sub-section of the third article "all cases of adstantially in rem, ordered the captors to bring miralty and maritime jurisdiction." In testing in so much of the cargo as would be equal to the accuracy of these positions, it would be askthe excess of the allowances beyond the amounting too much of this court to receive as bindof the stipulation. A rule for a prohibition obtained from the King's Bench was, upon full argument, discharged, and the grounds of the court's decision are fully disclosed in the opinion of all the judges, in accordance with the reasoning of Mr. Justice Buller, who is here particularly quoted because he has been referred to as favorable to the doctrines of Mr. Browne, and who thus expresses himself: "Every case that I know on this subject is a 404*] *clear authority to show that questions of prize and their consequences are solely and exclusively of the admiralty jurisdiction. After the cases of Lindo v. Rodney, Le Caux v. Eden, and Livingston v. McKenzie, it would only be a waste of time to enter into reasons to show that this court has no jurisdiction over those subjects. Still less reason is there for saying, that the admiralty shall be prevented from proceeding after it has made an interlocutory decree; because that would be to say, that the admiralty has jurisdiction at the beginning

ing authority the decisions of *tribunals [*405 inferior to itself, farther than they rest upon indisputable and clear historical truths in our colonial history; truths, too, which shall sustain a regular and recognized system of jurisdiction. It will not be sufficient to allege some obscure, eccentric, or occasional exertions of power, if they could be adduced, and upon these to attempt to build up an hypothesis or a system-nay, more, to affirm them to be conclusive proofs of a system established, general, well known to and understood by the framers of the Constitution, and therefore entering necessarily into their acceptation of the terms "admiralty and maritime jurisdiction." The danger of yielding to such scanty and inadequate testimony must be obvious to every mind. The still greater danger of theorizing upon words not of precise or definite import, freed from the restraints of settled acceptation, has been exemplified in our own time and country, in an able, learned and ingenious ef

fort to confer on the admiralty here powers not effort to assert, through the colonial vicemerely co-extensive with the most ambitious admiralty courts, powers which did not regupretensions of the English admiralty at any larly inhere in their constitution; powers period of its existence, but powers that may which, down to the date of the quarrel with be derived from the laws and institutions of the mother country, were never bestowed on almost every community of ancient or modern them by statutory authority; powers which to Europe, and covering, not only seas and navi- their superior-from whom they emanated, gable waters, but men and their transactions and to whom they were inferior and subordihaving no necessary connection with waters nate, the High Court of Admiralty-had long of any description, viz., shipwrights, material been conclusively denied, as has been already men and insurers (vide 2 Gall. 397); and this abundantly shown. With respect to the estabupon the assumption, that the term "mari- lishment and powers of these courts, we are intime" implied more than the word "admiralty," formed by Browne (2 Civ. and Adm. Law, 490), when unassociated with it, and this was so that "all powers of the vice-admiralty courts understood by the framers of the Constitu- within his majesty's dominions are derived tion, who designed it as an enlargement of the from the high admiral, or the commissioners admiralty power. Yet if we turn to the lan- of the admiralty of England, as inherent and guage of Mr. Justice Blackstone (Vol. III., p. incident to that office. Accordingly, by virtue 106), he tells us that the courts maritime are of their commission, the lords of the adthe admiralty courts, using the terms "mari- miralty are authorized to to erect vice-adtime" and "admiralty" as convertible; and that miralty courts in North America, the West the injuries triable in the admiralty (or mari- | Indies, and the settlements of the East India time causes) are such as are of common law Company;" "and in case any person be agcognizance, yet, being committed on the high grieved by sentence or interlocutory decree seas, are therefore to be tried by a peculiar court. Again (p. 68) he says: "The maritime courts, or such as have power and jurisdiction to determine all maritime injuries arising upon the seas, or in parts out of the reach of the common law, are only the Court of Admiralty and its courts of appeal." So, likewise, Sir Matthew Hale (p. 50), in characterizing maritime contracts to be those made and to be executed upon the sea, certainly excludes any implication beyond these; and this must be taken as the English interpretation of the term "maritime," by which it is understood as identical with "admiralty."

*

having the force of a sentence, he may appeal to the High Court of Admiralty." Blackstone, also, says (Vol. III., p. 68): "Appeals from the vice-admiralty courts in America, and our other plantations and settlements, may be brought before the courts of admiralty in England, as being a branch of the admiral's jurisdiction." Stokes, in his View of the Constitu- [*407 tion of the British colonies in North America, speaking of the vice-admiralty courts, says (chap. 13, p. 271): "In the first place, as to the jurisdiction exercised in the courts of viceadmiralty in the colonies, in deciding all maritime causes, or causes arising on the high seas, I have only to observe, that it proceeds in the same manner that the High Court of Admiralty in England does." Again (p. 275) he says: "From the courts of vice-admiralty in the colonies, an appeal lies to the High Court of Admiralty in England." Mr. Browne, in his

And here it seems proper to remark, that I cannot subscribe to the opinion, either from the bench or the bar, that the decisions of inferior courts, which it is not merely the right, 406*] but the duty, of this tribunal to revise, should, by their intrinsic authority as decisions, be recognized as binding on the judg-second volume of Civ. and Adm. Law, p. 491, ment of this court. They are entitled to that respect to which their accuracy, when examined, may give them just claims; but it is surely a perversion of our judicial system to press them as binding merely because they have been pronounced. If these decisions can be appealed to upon the mere force of their language, I would quote here the words of Judge Washington, in the case of The United States v. Gill, 4 Dall. 398, where he declares, that the words of the Constitution must be taken to refer to the admiralty and maritime jurisdiction of England, from whose code and practice we derive our systems of jurisprudence, and obtain the best glossary." Nor am I disposed to consider the doctrine of the civil law which has been mentioned, to escape from the silence of our own code or that of England upon the subject.

accounts for the jurisdiction of the viceadmiralty courts in America, in revenue causes, by tracing it to the statute of 12 Charles II., commonly called the Navigation Act, and to statutes 7th and 8th of William III., c. 22, and designates this as totally foreign to the original jurisdiction of the admiralty, and unknown to it. With this view of the origin and powers of the vice-admiralty courts of the colonies, showing them to be mere branches, parts of the admiralty, and emanating from and subordinate to the latter, it would seem difficult to perceive on their part powers more comprehensive than those existing in their creator and superior, vested, too, with authority to supervise and control them. existence of such powers certainly cannot rest upon correct logical induction, but would appear to be at war equally with common apI do not contest the position, that the estab- prehension and practical execution. Power can lished, well defined, regular, and known civil never be delegated which the authority said to jurisdiction of the admiralty courts of Eng- delegate itself never possessed, nor can such land, or of the vice-admiralty courts of the power be indirectly exercised under a pretext American colonies, was in the contemplation of of controlling or supervising those to whom it the men who achieved our independence, and could not be legitimately delegated. The was adopted by those who framed the Consti- colonial vice-admiralty courts, as regular parts tution. I willingly concede this position. of the English admiralty, created by its auThat which I do resist is what seems to me anthority, could by their constitution, therefore,

The

and worthy to be repelled even by an appeal to arms. It would seem, then, reconcilable neither with reason nor probability, that the men who made these solemn protests-that a community still warm from the contest induced by them-should, upon their emancipation from evils considered intolerable, immediately, by a species of political suicide, rivet those same evils indissolubly upon themselves. Much more reasonable does it appear to me, that the statesmen who framed our national charter, when conferring the admiral- [*409 ty and maritime jurisdiction, had in their contemplation that jurisdiction only which was familiar to themselves and their fathers, was venerable from time, and in practice acceptable to all; they could not have intended to sanction that whose very existence they denied. This view of the question is further fortified by the opinion of two able American jurists, both of them contemporaneous with the birth of our government. I allude to the opinion of Chancellor Kent, expressed at page 377 of the first volume of his Commentaries, 5th edit., and to that of Mr. Dane, found in volume sixth of his Abridgement, p. 353. It is in close conformity to, and congenial with, the seventh amendment of the Constitution, and with the saving in the Judiciary Act of the right to a remedy at common law, wherever the common law should be competent to give it. An able illustration of the construction here contendion of the late Justice Baldwin in the case of Bains v. The Schooner James and Catharine (Baldwin's Reports, 544), where the learned judge, in support of his conclusions, with great strength of reasoning, and upon author

be invested only with the known and restricted jurisdiction of the former. If a more extended jurisdiction ever belonged to, or be claimed for, these colonial tribunals, it must rest on some peculiar and superadded ground, which it is incumbent on the advocates of this jurisdiction clearly to show. Has anything of the kind been adduced in the argument of this cause? Beyond the provisions of the statutes of Charles II. and William III., relative to cases of revenue, has there been shown any enlargement by statute of these vice-admiralty powers, any alteration by judicial decision in England of the constitution and powers of the viceadmiralty courts, as emanating from, and limited by, the jurisdiction of the admiralty in the mother country? Strongly as authority for the affirmative of these inquiries has been challenged, nothing satisfactory to my mind, nothing, indeed, having the appearances of authority, has been adduced; because, I take 408*] it *for granted, from the distinguished ability of the counsel, such authority was not attainable. The learned and elaborate investigations of the counsel for the appellants have brought to light a series of proofs upon the jurisdiction of the vice-admiralty courts, all in strict accordance with the positions laid down in Blackstone, Stokes, and Browne, and exemplifying beyond these the actual and practical extent and modes to which and in which that jurisdiction was permitted and carried into operation in the colonies. These develop-ed for may also be seen in the elaborate opinments are valuable as illustrations of our early history, but they are still more so to the jurist seeking to ascertain the boundaries of right amidst contested limits of power. A recapitulation of them here would require an inconvenient detail. They well deserve, neverthe-ity, expounds the term "suits at common law,' less, to be preserved and remembered, as showing incontestably, with the exception of revenue cases arising under the statutes of Charles and of William, and designated on all hands as "totally foreign to the original jurisdiction of the admiralty, and unknown to it," that the constitution and functions of the vice-admiralty courts, from the earliest notices of their existence, in the American colonies, were modelled upon and strictly limited to those of the mother country (of which they were branches or portions); that, so far from there having grown up a more enlarged and general jurisdiction in the colonial viceadmiralty courts-a jurisdiction known and acquiesced in-every effort on their part to transcend the boundary prescribed to their superior in the mother country was watched with jealously by the common law tribunals, and by them uniformly suppressed. Coming down to the periods immediately preceding the Revolutionary conflict, and embraced by the war, and during the existence of the Confederation, the volumes of testimony poured forth in the forms of essays, speeches, and resolutions, prove that the pretensions then advanced by the British government, through the medium of the admiralty jurisdiction, extended that jurisdiction beyond its legitimate province as an emanation from the admiralty at home, so far from being regarded as pertaining to a known and established system, were received as novelties and oppressions-as abhorrent to the genius of the people, to the British constitution itself,

in the seventh amendment of the Constitution, and the phrase "the right to a common law remedy where the common law is competent to give it," contained in the saving in the ninth section of the Judiciary Act, showing their just operation in limiting the admiralty within proper bounds. I deem it wholly irregular to attempt to adduce general admiralty powers from the cognizance vested in the courts as to seizures; these are purely cases of revenue, are treated in England as anomalous, and as not investing general admiralty jurisdiction, but as unknown to it; or jurisdiction in cases of contract, as between private persons. This interpretation disposes at once of all the conclusions which it is attempted to draw from the several cases of seizure decided in this court. The obiter dictum in the case of The General Smith ought not to be regarded as authority at all, much leess as laying the foundation of a system. From the best lights I have been able to bring to the inquiry before us, reflected either from the jurisprudence of the mother country, from the history of the colonial government, or the transactions of the general Confederation, I am satisfied that the civil, admiralty, and maritime jurisdiction conferred by the second section of third article of the Constitution was the restricted jurisdiction known to be that of the English admiralty, insisted upon and contended for by the North American colonies, limited in matters of contract (seamen's wages excepted) to things agreed upon and to be performed upon the sea, *and [*410

es

cases of hypothecation, and in civil torts to the peculiar position he occupies with respect injuries occurring on the same theatre, and ex- to the public, giving the right to redress to all cluded as to the one and the other from con- who may suffer from the violation or neglect of tracts made, or torts committed, within the these public obligations. Such are the inbody of a county. stances of attorneys, surgeons, common carIt has been urged in argument, that the re-riers, and other bailees. The wrong in these striction here proposed is altogether unsuited instances is rather the infringement of these to and unworthy the expanded territory and public and general obligations, than the violaalready great and increasing commerce of our tion of the private direct agreement between country. To this may be replied the fact, that the parties; and agreement, contract, is not the it was thought sufficiently broad for a nation foundation of the demand, nor can it be properadmitted even at this day to be the most ly taken as the measure of redress to be adcommercial on the globe. In the next place, I judged; for I presume it is undeniable, that, am by no means prepared to concede that the if the relations of the parties are the stipuinterests of commerce, and certainly other lations of their contract exclusively or great interests in society, are to be benefited sentially, their remedies must be upon such by incursions upon the common law juris- stipulations strictly. Secondly, they are cases prudence of the country. Recurring, as a test, in which a kind of quasi tort is supposed to to the institutions and to the condition of arise from a violation of the contract imvarious nations, a very different and even mediately between the parties. These cases, opposite conclusion would be impressed by it. although they are torts in form, are essentially But even if it be admitted that a power in the cases of contract. The contract, therefore, admiralty such as would permit encroachments must be referred to, and substantially shown, upon the venerable precincts of the common to ascertain the rights of the parties, and to law would be ever so beneficial, the reality of measure the character and extent of the redress such advantage, and the right or power to au- to either of them. It can in no material thorize it, are essentially different concerns. feature be departed from. This I take to be An argument in favor of power founded upon the rationale of the practice, and the view here calculations of advantage, in a government of taken appears to be sustained by authority. strictly delegated powers, is scarcely legitimate Thus, in Boorman v. Brown, 3 Adolph. & Ellis, when addressed to the Legislature; addressed 525, New Series, Tindal, Ch. J., delivering the to the judiciary, it seems to be especially out opinion of all the court, says: "That there is of place. In my view, it is scarcely reconci- a large class of cases in which the foundation lable with government in any form, so far as of the action springs out of the privity of conthis term may signify regulated power, and tract between the parties, but in which ought to have influence nowhere. If a re- nevertheless, the remedy for the breach or nonstricted admiralty jurisdiction, though ever so performance is indifferently in assumpsit, or impotent for good or prolific of inconvenience, in case upon tort, is not disputed." ~ Again has been imposed by the Constitution, either (p. 526), the same judge says: "The principle or both those evils must be of far less magni- in all these cases would seem to be, that the tude than would be attempts to remedy them contract creates a duty, and the neglect to perby means subversive of the Constitution itself, form that duty, or the nonperformance, is a by unwarranted legislative assumption, or by ground of action upon tort.' In the case of violent judicial constructions. The pressure Winterbottom v. Wright, 10 Mees. & Wels. of any great national necessity for amend- 114, Lord Abinger thus states the law: ments of that instrument will always insure "Where a party becomes responsible to the their adoption. public by undertaking a qublic duty, he is To meet the objection urged in this case to liable, though the injury may have arisen from the jurisdiction deduced from the character the negligence of his servant or agent; so, in of the contract sued on, it has been insisted cases of public nuisances, whether the act was that the foundation of this suit may be treated done by the party or a servant, or in any other as a marine tort, which, having been committed capacity, you are liable to an action at the on Long Island Sound, and therefore not with- suit of any person who suffers. These, howin the body of any county, is exempt from ob-ever, are cases *where the real ground [*412 jection on the score of locality. If the pleadings and proofs in this cause presented a case of simple or substantial tort, occurring without the body of a county, no just objection could be made to the jurisdiction. It is, therefore, proper to inquire whether a case of marine tort, in form or in substance, is presented upon this record. There is a class of cases known to the common law, in which a plaintiff having a 411*] *right of action arising upon contract may waive his remedy directly upon the contract in form, and allege his gravamen as originating in tort, produced by a violation or neglect of duty. The cases in which this alternative is permitted are, in the first place, those in which, independently of the rights of the plaintiff arising from express stipulations with the defendant, there are duties or obligations incumbent on the latter resulting from

of the liability is the public duty, or the commission of the public nuisance. There is also a class of cases, in which the law permits a contract to be turned into a tort; but unless there has been some public duty undertaken, or public nuisance committed, they are all cases in which an action might have been maintained upon the contract; but there is no instance in which a party who was not a privy to the contract entered into with him can maintain any such action." And Alderson, Baron, in the same case says: "The only safe rule is, to confine the right to recover to those who enter into the contract. If we go one step beyond that, we may go fifty." So, too, in Tollit v. Sherstone, 5 Mees. & Wels. 283, a case in tort, Maule, Baron, says: "It is clear that an action of contract cannot be maintained by a person who is not a party to the contract; and