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case in admiralty does not, in fact, on the general government, can be arise under the constitution or laws of deposited. They are incapable of the United States. These cases are receiving it. They are legislative as old as navigation itself; and the courts, created in virtue of the general law, admiralty and maritime, as it has right of suvereignty which exists in existed for ages, is applied by our the governinent, or in virtue of that courts to the cases as they arise. It clause which enables congress to make is not, then, to the 8th section of the all needful rules avd regulations, reterritorial law, that we are to look for specting the territory belonging to the the grant of admiralty and maritime United States. The jurisdiction with jurisdiction, to the territorial courts. which they are invested, is not a part Consequently, if that jurisdiction is of that judicial power which is defined exclusive, it is not made so by the in the 3d article of the constitution, reference to the district court of Ken- but is conferred by congress, in the tucky.

execution of those general powers It has been contended, that by the which that body possesses over the constitution, the judicial power of the territories of the United States. AlUnited States extends to all cases of though admiralty jurisdiction can be admiralty and maritime jurisdiction; exercised in the states in those courts, and that the whole of this judicial only, wbich are established in pursupower must be vested in one supreme ance of the 3d article of the constitucourt, and in such inferior courts as


the same limitation does not congress shall from time to time or- extend to the territories. In legisladain and establish.” Hence it has ting for them, congress exercises the been argued, that congress cannot vest combined powers of the general, and admiralty jurisdiction in courts created of a state government. by the territorial legislature.

We think, then, that the act of the We have only to pursue this subject territorial legislature, erecting the one step further, to perceive that this court by whose decree the cargo of the provision of the constitution does not Point a Petre was sold, is not inconapply to it. The next sentence de sistent with the laws and constitution clares, that "the judges, both of the of the United States,” and is valid. supreme and inferior courts, shall hold Consequently, the sale made in purtheir offices during good behaviour." suance of it, changed the property, The judges of the superior courts of and the decree of the circuit court, Florida hold their offices for four years. awarding restitution of the property These courts, then, are not constitu- to the claimant, ought to be affirmed, tional courts, in which the judicial with costs, power conferred by the constitution

Humphrey Fullerton & al. vs. the Bank of the United States.

In this case, a question arose as to shall be lawful for such bank or banker the admissibility of certain testimony to bring a joint action against all the in the Circuit Court of the United drawers or endorsers, in which action States, under an act of the Ohio le- the plaintiff or plaintiff's may declare gislature of February 18th, 1820, of against the defendants jointly for the following description :

money lent and advanced, and may The 8th section of the act provides, obtain a joint judgment and execution “That when any sum of money due and for the amount found to be due; and owing to any bank or banker, shall be each defendant may make the same secured by endorsements on the bill, separate defence against such action, note, or obligation for the same, it either by plea or upon trial, that lre

could have made against a separate objected, as evidence of a several conaction; and is in the case herein pro- tract of the drawer and each of the vided for, the bank or banker shall in- endorsers on the note, and not of any stitute separate action against drawers joint undertaking or liability of the and endorsers, such bank or bankers defendants, which objection was overshall recover no costs. Provided al- ruled by the court, and the note perways, that in all suits or actions pro- mitted to be read in evidence, under secuted by a bank or banker, or per- the act of the general assembly of sons claiming as their assignees or Ohio, entitled, “An act to regulate juunder them in any way for their use dicial proceedings, where bank and or benefit, the sheriff, upon any execu- bankers are parties, and to prohibit tion in his hands in favour of such bank the issuing of bank bills of certain or banker, their or his assignee as descriptions,' passed 18th of February, aforesaid, shall receive the note or 1820, to which decision the counsel notes of such bank or banker, from the excepted." defendant, in discharge of the judg- Cook, it appears, was originally ment; and if such bank or banker, made a party defendant to the action, their or his assignee or other person but died pending the suit; the plainsuing in trust for the use of such bank tiff suggested his death on the record, or banker, shall refuse to receive such and went to trial against the remainnote from the sheriff, the sheriff shall ing three defendants. not be liable to any proceedings what. in order to understand the bearing ever at the suit or upon the complaint which the instruction moved for has of the bank or banker, their or bis as- upon the cause, it is necessary to resignee as aforesaid."

mark, that the state of Ohio was not Mr. Leonard argued the cause in received into the Union until 1802; behalf of the plaintiffs, and Mr. Ser- so that the process act of 1792, which geant for the defendants in error. is expressly confined in its operation

Mr. Justice Johnson delivered the to the day of its passage, in adopting opinion of the Court, from which we the practice of the state courts into extract the following-being all which the courts of the United States, could relates to the admissibility of the evi- have no operation in that state. But dence.

the district court of the United States, The errors assigned arise upon va

established in the state in 1803, was rious bills of exception, the first of vested with all the powers and juriswhich was taken to the evidence of. diction of the district court of Kenfered to maintain an action, in these tucky, which exercised full circuit words, “The plaintiff, in support of court jurisdiction, with power to create his action, offered in evidence the fol. a practice for its own government. lowing promissory note, drawn by The district court of Ohio, it apIsaac Cook, and endorsed by Hum- pears, did not create a system for itphrey Fullerton, John Waddle, and self, but finding one established in the John Carlisle."

state, in the true spirit of the policy “ Cincinnati, February 1st, 1820. pursued by the United States, proceed$4000

ed to administer justice according to Sixty days after date, I promise to the practice of the state courts ; or, in pay John Carlisle, or order, at the of. effect, adopted by a single rule, the fice of discount and deposit of the bank state system of practice, in the same of the U. States at Cincinnati, four mode in which this court, at an early thousand dollars, for value received. period, adopted the practice of the

(Signed) Isaac Cook. King's Bench in England. So that Endorsed John Carlisle, John Wad- when tho seventh circuit was esta.

dle, Humphrey Fullerton." blished, in the year 1807, the judge of "To the introduction of this evi. this court, who was assigned to that donce, the defendant, by his counsel, circuit, found the practice of the state

courts adopted in fact into the circuit positive rules of their own making. court of the United States.

Such we understand has been the It has not been deemed necessary course of the United States court in to make any material alterations since; Ohio, for twenty-five years past. The but as far as it was found practicable practice may have begun and probaand convenient, the state practice has, bly did brgiu in a mistakey construcby a uniform understanding, been tion of process act. and then it parpursued by that court without having takes of the anthority of adjudication. passed any positive rules upon the But there was a higher motive for subject. The act of the 18th February, adopting the provisions of this law, 1820, alluded to in the bill of excep into the practice of that court; and tions, was a very wise and benevolent this bill of exceptions brings up one of law, calculateci principally, to relieve those difficult questions, which must the parties to promissory notes froin olien occur in a court in which the accumulated expenses; its salutary remedy is prescribed by one sovereign, effects produced its immediate adop- and the law of the contract by another. tion into the practice of the circuit It is not easy to draw the line between court of the U. States; and from that the remedy and the right, where the time, to the present, in innumerable remedy constitutes so important a instances, suits have been there pro part of the right ; nor is it easy to resecuted under it. The alteration in duce into practice the exercise of a practice (properly so called) produced plenary power over contracts, without by the operation of this act, was very the righi to declare by what evidence inconsiderable, since it only requires contracts shall be judicially establishnotice to be given of the cause of ac ed. Suppose the state of Ohio had tion, by endorsing it on the writ, and declared ihat the undertaking of the filing it with the declaration, after drawer and endorser of nole, shall which the defendants were at liberty be joint, and not several or contingent; to manage their defence, as if the note and that such note shall be good evihad been formally declared upon in dence to maintain an action for money the usual manner.

lent and advanced; would not this be It is not contended that a practice, come a law of the contract 1 Where as such, can only be sustained by writ then would be the objection to its beten rules; such must be the extent to ing acted upon in the courts of the which the argument goes, or certainly United States? Would it have been it would not be supposed, that a party prudent or respectful, or even legal, pursuing a former mode of proceed to have excluded from all operation ing, sanctioned by the most solemn in the courts of the United States, an acts of the court, through the course act which had so important a bearing of eight years, is now to be surprised upon the law of contracts, as that now and turned out of court, upon a ground under consideration ? An act in its which has no bearing upon the merits. provisions so salutary to the citizen,

But we are decidedly of opinion, and which, in the daily administration the objection cannot be maintained. of justice in the state courts would Written rules are unquestionably to be not have been called upon otherwise preferred, because their commence than as a law of the particular conment, and their action, and their tract ; a law, which as to promissory meaning, are most couveniently de notes introduced an exception into termined; but what want of certainty the law of evidence, and of actions. can there be, where a court, by long It is true, the act, in some of its proacquiescence, has established it to be visions, has inseparably connected the the law of that court, that the state mode of proceeding, with the right of practice shall be their practice, as far recovery. But what is the course of as they have the means of carrying it prudence and duty, where these cases into effect, or until deviated from by of difficult distribution, as to power


and right, present themselves ? It is of legislative power over existing conto yield rather than encroach ; the duty is reciprocal, and will, no doubt, But what right is violated, what he inet in the spirit of moderation hardship or injury produced, by the and coniity. In the conflicts of power operation of this act? It was passed and opinion, inseparable from our for the relief of the defendant, and very peculiar relations, cases may is effectual in relieving him from a occur, in which the maintenance of weight of costs, since it gives to the principle, and the administration of plaintiff no more than the costs of a justice according to its innate and in- single snit, if he should elect to bring separable attributes, may require a several actions against drawer and endifferent course; and when such cases dorser. Nor does it subject the dedo occur, our courts must do their sendants to any inconvenience, from duty ; but until then, it is administer- a joint action; since it secures to ing justice in the true spirit of the each defendant, every privilege of constitution and laws of the United pleading and defence, of which he States, to conform, as nearly as prac- could avail himself, if severally sued. ticable, to the administration of jus- The circuit court has incorporated the tice in the courts of the state.

action, with all its incidents, into its In the present instance, the act was course of practice ; and having full conceived in the true spirit of distri- power by law to adopt it, we see no butive justice ; violated no principle; legal objection to its doing so, in the was easily introduced into the practice prosecution of that system, upon which of the courts of the United States ; it has always acted. It cannot be has been there acted upon through a contended that the liabilities of the period of eight years; and has been defendants, under their contract, have properly treated as a part of the law been increased, or even varied; and of that Court. But, it is contended, as to change, in the mere form of the that it was improperly applied to the remedy, the doctrine cannot be mainpresent case, because the note bears tained, that this is forbidden to the date prior to the passage of the law; legislative power or to the tribunal and this certainly presents a question itself, when vested with full power to which is always to be approached regulate its own practice. with due precaution, to wit, the extent Judgment affirmed with costs.

Thompson Wilson & al. vs. The Black.Bird Creek Marsh Company.

This was on a writ of error, from a sloop called the Sally, of 95 tons, rethe High Court of Errors and Appeals gularly licensed and enrolled, broke, of the state of Delaware. The de- and injured the dam, for which an acfendants were incorporated by an act tion of trespass, vi et armis, was instiof the legislature passed in 1822, and tuted against them in the Supreme the owners of the low grounds lying Court of Delaware. on both sides of Black-Bird Creek, The declaration being filed, the debetween Mathew's landing and the fendants below pleaded that the place river Delaware, were authorized to where the trespass was committed construct a dam across the creek, was a part of the said creek : it being wherever a majority of them chose, a public and common navigable creek, and also to bank the low grounds, &c. in the nature of highwa in which The company afterwards proceeded the tides have always flowed and reto erect a dam in the creck, obstruct flowed, and where the citizens of Deing the navigation, and also to embank laware, and of all the United States, the creek.

had a right to navigate, and to pass The plaintiffs in error, being owners of and repass at pleasure. It then aver



red the bank and dam to be wrong- The plea does not controvert the exfully erected, so that without pulling istence of the act, but denies its capaup and destroying the piles, &c., the city to authorize the construction of a said defendants could not pass with dam across a navigable stream, in the said sloop, along the said creek, which the tide ebbs and flows; and in and that the said defendants, in order to which there was, and of right ought remove the said obstructions, pulled up, to have been, a certain common and &c. as in the declaration mention- public way in the nature of a highed, doing no unnecessary damage, &c. way. This plea draws nothing into

To this plea the plaintiffs below de. question but the validity of the act; murred, and the court sustained the and the judgment of the court must demurrei. This judgment was affirm- have been in favour of its validity. ed in the Court of Appeals, and the re- Its consistency with, or repugnancy to cord remanded for assessment of dain, the constitution of the United States, ages. Final judgment was entered necessarily arises upon these pleadon the verdict, and it was again carried ings, and must have been determined. to the Court of Appeals where it was This court has repeatedly decided in affirmed, and the cause

favour of its jurisdiction in such a case. brought before this court for review. Martin vs. Hunter's lessee, Miller vs.

The cause was argued on the part Nicholls, and Williams vs. Norris, of the plantiffs in error, by Mr. Coxe, are expressly in point. They esta and by the Attorney General, for the blish, as far as precedents can establish defendants.

any thing, that is not necessary to state Chief Justice Marshall delivered in terms on the record, that the conthe opinion of the court.

stitution or a law of the United States The defendants in error deny the was drawn in question. It is sufficient jurisdiction of this court, because, they to bring the case within the provisions say, the record does not show that the of the 25th section of the judicial act, constitutionality of the act of the le. if the record shows, that the constitugislature, under which the plaintiff tion, or a law, or a treaty of the United claimed to support his action, was States, must have been inisconstrued, drawn into question.

or the decision could not be made. Undoubtedly the plea might have Or, as in this case, that the constitu. stated in terms that the act, so far as tionality of a state law was questionit authorized a dam across the creek, ed, and the decision has been in fawas repugnant to the constitution of vour of the party claiming under such the United States; and it might have law. been safer, it might have avoided any The jurisdiction of the Court being question respecting jurisdiction, so to established, the more doubtful question frame it. But we think it impossible is to be considered, whether the act to doubt that the constitutionality of incorporating the Black-Bird Creek the act was the question, and the only Marsh Company is repugnant to the question, which could have been dis. constitution, so far as it authorizes a cussed in the state court.

dam across the creek.

The plea tion must have been discussed and de- states the creek to be navigable, in the cided.

nature of a highway, through which the The plaintiffs sustain their right to tide ebbs and flows. build a dain across the creek by the The act of assembly by which the act of the assembly. Their declara- plaintiffs were authorized to construct tion is founded upon that act. The their dam, shows plainly that this is injury of which they coinplain is to a one of those many creeks, passing right given by it. They do not claim through a deep level marsh adjoining for themselves any right independent the Delaware, up which the tide flows of it. They rely entirely upon the act for some distance. The value of the of assembly.

property on its banks must be en

That ques

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