The English courts of admiralty declined for a long time jurisdiction in what are called petitory suits, in which the mere title to property is in question or litigation. Quite recently this jurisdiction has been restored and exercised; and we have no doubt that formerly suits of this description came before the courts as freely as possessory suits, in which an owner by legal title demands that a possession, which is unjustly withheld, should be restored to him.1 In this country, no such distinction is made, one class of actions being as much within the reach of the court as the other.2 It would seem also, that the courts

"

1 Of this, Kent says, Vol. I. p. 371, "The distinction does not appear to rest on any sound principle, for the question of title is necessarily involved in that of the possession; and the remarks of Sir Wm. Scott, show the great embarrassment in which the court is thrown by this unjust and arbitrary restriction of their jurisdiction. In The Aurora, 3 Rob. Adm. 133, 136, he said: "It is well known that it was formerly held for a very long time, and down to no very distant period, to be within the jurisdiction of this court to examine and pronounce for the title of ships, on questions of ownership. It was not till some time after the restoration, I believe, that it was informed by other courts that it belonged exclusively to them; since that time, the court has been very cautious not to interfere at all in questions of this nature." In The Warrior, 2 Dods. 288, 289, he said: "A question of title may occur incidentally in a cause of possession, and it then becomes necessary for the court to inquire into the title, at least so far as to satisfy itself that it may safely decree possession to the party seeking it. It cannot be laid down that the court is to decline its jurisdiction in a cause of possession, on the mere averment of one of the parties, that there is a conflicting claim of title." In The Pitt, 1 Hagg. Adm. 240, 244, he said: "I may, therefore, lay it down as a rule for the conduct of this court, that it is only in simple cases, in cases which speak for themselves, that it can act with effect; but in those which, being complex, require a long and minute investigation, it cannot proceed with safety." Sir C. Robinson followed these decisions closely in The John, 2 Hagg. Adm. 305; The Fruit Preserver, id. 181. See also, The Martin of Norfolk, 4 Rob. Adm. 293. By 3 and 4 Vict. c. 65, the English court has its ancient power in these cases restored. This act provides that the court "shall have jurisdiction to decide all questions as to the title to, or ownership of any ship or vessel, or the proceeds thereof remaining in the registry, arising in any cause of possession, salvage, damage, wages, or bottomry, which shall be instituted in the said court after the passing of this act." Before this act was passed, it was uniformly held that the court could look only to the legal title, and not to a beneficial or equitable interest. The Sisters, 5 Rob. Adm. 155. Mr. Conkling remarks that "it appears, by a case since decided, that this principle is still adhered to by the court, notwithstanding its enlarged powers and modified constitution." 1 Adm. Juris. 339, citing The Valiant, 1 W. Rob. 64. This case was, however, decided in July, 1839, before the passage of the act in question, which was on the 7th day of August, 1840. We shall consider this subject more fully hereafter. See post, ch. 5, sect. 1.

2 Ward v. Peck, 18 How. 267; New England Ins. Co. v. Brig Sarah Ann, 13 Pet. 387; The Sch. Tilton, 5 Mason, 465; The Friendship, 2 Curtis, C. C. 426; Taylor v. The Royal Saxon, 1 Wallace, Jr. 311.

have jurisdiction over contracts of consortship1 and wharfage2 and towage. But there is no jurisdiction in matters of account between part-owners, although the part-owners sailed the vessel, and the libellant was a carpenter on board. And there is no jurisdiction over an account between the owners of a vessel and their general agent for money paid to their use. And the court has no power to decree the sale of a ship for an unpaid mortgage, nor, on that account, can it declare a ship to be the property of the mortgagees, and decree the possession of it to be given to them.7 And in a late case, where the owners of different vessels agreed to form a line for carrying passengers and freight between New York and San Francisco, they dividing the profits between them, it was held to be but a contract for a limited partnership, and that an action for a breach of it would not lie in admiralty.8

1 Andrews v. Wall, 3 How. 568. The appellees, in this case, had filed a petition in the admiralty court in Florida, setting forth that they were owners of a schooner, which had been consorted with the sloop Globe in the business of wrecking. That while so consorted, the Globe had performed a salvage service, and that payment had been decreed her by the admiralty court, and that a portion of the salvage was due the petitioners by virtue of the consortship, and prayed that the sum due them might be retained by the court and paid to them. Mr. Justice Story, delivering the opinion of the court, held that they had, on general principles, jurisdiction to maintain the suit, that it was to enforce a maritime contract for services to be rendered on the sea, and an apportionment of the salvage earned therein. The jurisdiction was also sustained on the independent ground that the suit was for proceeds in the hands of the admiralty, and that such suits might always be maintained by the parties in interest.

* Ex parte Lewis, 2 Gallis. 483; The Phebe, Ware, 360; Johnson v. The M'Donough, Gilpin, 101. See Ives v. The Buckeye State, 1 Newb. Adm. 69; and Russel v. The Asa R. Swift, id. 553.

3 Ward v. Brig Banner, U. S. D. C., Michigan, 14 Law Reporter, 465.

4 Steamboat Orleans v. Phœbus, 11 Pet. 175. And in a late case where the master of a vessel who was also part-owner, made a contract of affreightment with a lumber company, of which he was also a member, and the cargo was consigned to him, the supreme court refused to take jurisdiction, on the ground that there being a complicated account to adjust, the matter more properly belonged to a court of equity. Grant v. Poillon, 20 How. 162.

5 Kellum v. Emerson, 2 Curtis, C. C. 79.

6 Minturn v. Maynard, 17 How. 477.

7 Bogart v. Steamboat John Jay, 17 How. 399. In Schuchardt v. Ship Angelique, 19 How. 239, it was held, where a mortgage existed upon the moiety of a vessel which was afterwards libelled, condemned and sold by process in admiralty, and the proceeds brought into the registry of the court, that the mortgagee could not file a libel against a moiety of the proceeds, but that his proper course should have been either to have appeared as claimant when the first libel was filed, or to have applied to the court by petition for a distributive share of the proceeds.

8 Vandewater v. Mills, 19 How. 82.

It has also been determined that the admiralty has no jurisdiction over a preliminary agreement to execute a maritime contract, and Mr. Justice Story has said, that, "if there were a contract to build a ship, or to sign a shipping paper, or to execute a bottomry bond, and the party refused to perform it, it has never been my impression that the enforcement of such a contract belonged to the admiralty." 1

1 Andrews v. Essex F. & M. Ins. Co., 3 Mason, 6, 16. See also, The Sch. TribSumner, 144.

une,

CHAPTER II.

OF THE JURISDICTION OF THE SEVERAL COURTS OF ADMIRALTY IN THIS COUNTRY.

SECTION I.

THE SUPREME COURT OF THE UNITED STATES.

THIS court has no original jurisdiction in admiralty, but receives appeals from the circuit court, where the matter in dispute, exclusive of costs, exceeds the sum or value of two thousand dollars. But no appeal lies from the district court to the supreme. And to give the right of appeal to the libellant, the damages claimed in the libel must exceed two thousand dollars, and interest is not to be added in computing the amount, unless it is specially claimed in the libel.3

There is also jurisdiction where the decree in the circuit court was rendered pro forma because the presiding judge had been of counsel in the case. But the court will not take jurisdiction by agreement of parties, if the amount in dispute, however agreed by counsel, is shown by the case, not to be sufficient, or

1 Act of March 3, 1803, ch. 40, § 2, 2 U. S. Stats. at Large, 244.

2 The Sloop Sally v. The United States, 5 Cranch, 372.

3 Udall v. Steamship Ohio, 17 How. 17; Olney v. Steamship Falcon, 17 How. 19. See Godfrey v. Gilmartin, 2 Blatchf. C. C. 340.

Steamer Oregon v. Rocca, 18 How. 570.

5 Mordecai v. Lindsay, 19 How. 199. In Gruner v. The United States, 11 How. 163, the vessel was seized for a violation of the registry laws, and while the suit was pending in the district court, a written agreement was filed by the district attorney and the proctor for the claimant, that the vessel should be sold and the proceeds paid into the registry of the court, to abide the ultimate decision of the suit, the rights of neither party to be prejudiced by the sale. The vessel was sold for $850, and was afterwards condemned. There was an agreement on record signed by

if the case is not of a maritime nature. The appeal must also be from a final decree of the circuit court.2

3

Some controversy has arisen as to what is a final decree, but the following points may now be considered as settled. If the court decree that the libellant is entitled to recover damages, and the cause is sent to an assessor to determine the amount, this decree is not final; and, generally, if a case is sent to a master, the decree is not final. So if the property libelled is ordered to be restored with costs and damages, no appeal lies until the amount of the damages is ascertained.5 The word "final" has been defined by the Supreme Court of the United States to apply to all judgments and decrees which determine the particular cause; and it is not necessary that the subject matter in dispute should be finally decided. Thus, if after the decree is pronounced, merely ministerial duties are to be performed, as the sale of mortgaged property on a decree ordering a sale, the decree is considered as final. And if the jurisdiction of the inferior court is objected to, it would seem that the decis

the attorneys of the parties admitting that the vessel was worth over two thousand dollars. The court held that the admission of the parties would be evidence of the value if nothing more appeared in the record, but that the consent of the parties could not give the court jurisdiction, and that as it appeared on the face of the record that the sum in controversy was below two thousand dollars, the appeal must be dismissed. 1 Cutler v. Rae, 7 How. 729.

2 See Canter v. American Ins. Co., 3 Pet. 307, 317. Mr. Justice Story in this case said: "It is of great importance to the due administration of justice, and is in furtherance of the manifest intention of the legislature, in giving appellate jurisdiction to this court upon final decrees only, that causes should not come up here in fragments, upon successive appeals."

8 Chace v. Vasquez, 11 Wheat. 429. In Mordecai v. Lindsay, 19 How. 199, the case was decided in favor of the libellants in the district court, and then ordered to be sent to an assessor to report the amount. Without further proceedings being had, the respondents appealed to the circuit court, where the case was heard on its merits, and the decree of the district court reversed. The libellants then appealed to the supreme court, where the counsel moved that they might be permitted to amend the record by consent, by inserting in it what might be agreed upon by them as a final decree. But the court held, that as the case never came properly before the circuit court, it could not come before the supreme court, and the case was sent back to the circuit court that the appeal might be dismissed by it for want of jurisdiction, leaving the parties to obtain the final decree in the district court.

4 Beebe v. Russell, 19 How. 283; Farrelly v. Woodfolk, 19 How. 288.