Barnard v. Adams. 10 H. each class of cases. There must be intent and act, prompted by, and tending to, a practicable, or at least a probable result, and not mere endurance or submission to uncontrollable necessity in either case. Thus, says Benecke, "when a vessel is purposely run ashore, p. 143, and afterwards got off with damage; the question [* 310 ] * whether repairs of such damage belong to general or particular average depends entirely upon the circumstances of the case. If the situation of the vessel were such as to admit of no alternative; so that, without running her ashore she would have been unavoidably lost, and that measure were resorted to for the purpose of saving the lives or liberty of the crew, no contribution can take place, because nothing, in fact, was sacrificed. But if the vessel and cargo were in a perilous, but not a desperate situation, and the measure of running her ashore deliberately adopted, as best calculated to save the ship and cargo; in that case the damage sustained, according to the fundamental rules, constitutes a claim for restitution." And Mr. Phillips, in his work on Insurance, vol. i. p. 338, and in a note to Stevens on Average, p. 81, lays down the law, both in England and in the United States, to be this; that "the voluntary stranding of the ship is general average; but not the mere steering her to a less dangerous place for stranding, when she is inevitably drifting to the shore." I am wholly unable to perceive how, in conformity with the rules and principles above cited as constituting the foundation of general average, contribution could justly be claimed in this instance for the loss of the ship. For there is not a scintilla of proof in this cause tending to show a design to sacrifice the ship, or any thing else, nor tending to prove that the course pursued was one which, under any circumstances, could possibly have been avoided. On the contrary, the testimony establishes, as far as it is possible to establish any facts, that the stranding was the effect of the vis major, of an inevitable necessity,- that every effort was made to avoid this necessity, and that the only act of the mind apparent in the case was the determination, to repeat the language of Mr. Phillips, already quoted, " merely to steer her to a less dangerous place for stranding, when she was inevitably drifting to the shore;" a determination not less for the benefit of the ship than for that of the cargo, and one falling within the general scope of the duty and discretion of every master or seaman. There is no contrariety in the testimony in this case. The single witness, the mate, who was examined, states most explicitly the hopeless and desperate condition of the vessel;-she had lost all her anchors, was in the midst of a hurricane, and drifting to the shore Henderson v. Tennessee. 10 H. under a force which the witness explicitly says nothing could resist. He therefore did not elect to run her ashore, or to make her a sacrifice for the general good; he only sought to save her as far as possible from danger or injury. It appears to me to be no slight paradox to assert, that a man is the positive and controlling agent in * the accomplishment of an effect which he merely suffers, [* 311 ] and which is forced upon him by a power that he is wholly unable to resist or influence, and that it is equally paradoxical to declare that we elect and seek a sacrifice or a peril from which we are most anxiously fleeing. The cases at nisi prius in the federal courts, and in the courts of the States referred to, leave this matter pretty much in equipoise, if indeed they do not incline to the side of the question here maintained. We have Story and Washington and Tilghman opposed to Kent and Gibson and Kennedy; with this consideration attending the decisions of the supreme court of Pennsylvania, that they are the most recent, and have been made upon an examination and review of the cases which they have overruled. Repeating the assurance of entire deference entertained for the opinions of my brethren, and of the sincerest diffidence of the conclusions of my own mind, yet, being unable to concur in those opinions, I have no claim to share in their merits if they are right, and if they are incorrect, my position with respect to them should be equally understood. THOMAS HENDERSON and THOMAS CALLOWAY, Plaintiffs in Error, v. THE STATE OF TENNESSEE. 10 H. 311. An outstanding title in a third person, alleged to have been derived under a treaty, set up by the defendant to defeat an action of ejectment, in a state court, will not enable him to have a writ of error under the twenty-fifth section of the judiciary act of 1789, (1 Stats. at Large, 85;) to give jurisdiction to this court, the party must claim the right for himself, and not for a third person in whose title he has no interest. THE case is stated in the opinion of the court. Bibb and Eaton, (with whom was Green,) for the plaintiff. Andrew Erving and Stanton, contrà. * TANEY, C. J., delivered the opinion of the court. [ *322 ] The first question to be decided in this case is, whether the court has jurisdiction. The case is brought before us by a writ of error to the supreme court of the State of Tennessee. It appears by the record, that Henderson v. Tennessee. 10 H. the decision turned upon the title of Andrew Miller to the lands in question, under the treaties of 18171 and 1819,2 with the Cherokee nation. Andrew Miller was the head of an Indian family, when the first treaty was made, and it was insisted at the trial that the title to this land was in his heirs, by virtue of the reservations contained in these treaties. The decision was against the validity of this title, and the question is, whether the plaintiffs in error claimed under it. If they did not, this court has no power to revise the judgment of the state court. It was an action of ejectment. The plaintiffs in error were permitted by the court to appear as defendants. They were not the tenants in possession when the suit was brought. The process was served on other persons named in the proceedings, and the record does not show in what character, or upon what ground, the plaintiffs in error were permitted to appear and defend the suit. Andrew Miller died in 1818, and the land in dispute was held for his children until 1822, when the State took possession of it, claiming title. The widow of Miller removed to the Cherokee nation, in their new settlement on the west of the Mississippi, soon after his death, and the children followed her when the State took possession of the land; and they have all remained there ever since. The right to this property appears to have been continually in dispute since the treaties above mentioned, and after the removal of Miller's children the possession changed hands several times before this suit was brought. The bill of exceptions states that Henderson, one of the plaintiffs in error, got possession for the heirs of Andrew Miller in 1837 or 1838, under which title it was held down to the commencement of this suit. But it is not stated that he or Calloway had [*323] any authority from the heirs of Andrew Miller. On the contrary, it is expressly stated that they set up no title in themselves, but relied for their defence on an outstanding title in the heirs of Andrew Miller. Now, in the language of ejectment law, an outstanding title means a title in a third person, under which the tenant in possession does not claim. And as no one has a right to enter upon the land and eject the tenant but the person holding the legal title, if the tenant can show that the title was in a third person it defeats the action, although the tenant sets up no title in himself. This was the defence in the case before the court. If they had been in possession under the heirs of Miller, as tenants holding under their authority, then the title of the heirs would have been 17 Stats. at Large, 156. 2 Ib. 195. Henderson v. Tennessee. 10 H. the title of the tenants, and they could have defended their possession, by showing title in themselves derived from the heirs. For although the landlord may appear and defend on account of his own interest, yet his appearance is not necessary for the protection of the tenant. The tenant may show the title of the landlord, and his own right derived from him. And if the plaintiffs in error had made this defence, they would evidently have claimed a right to the possession under a treaty of the United States; and as the decision was against the right, this court would have jurisdiction, and might reverse the judgment if they deemed it erroneous. But they claimed no right to the possession under this title. They set it up as a title in a third person, not to show a right in themselves, but that the lessor of the plaintiff had none, and therefore had no right to enter upon them. They might have been mere trespassers or intruders, without any authority from the legal owner, and yet this defence would have been a good one, if the outstanding title was superior to that produced by the lessor of the plaintiff. The right to make this defence is not derived from the treaties, nor from any authority exercised under the general government. It is given by the laws of the State, which provide that the defendant in ejectment may set up title in a stranger in bar of the action. It is true, the title set up in this case was claimed under a treaty. But to give jurisdiction to this court, the party must claim the right for himself, and not for a third person in whose title he has no interest. The case in 5 Cranch, 344, Owings v. Norwood's Lessee, is in point. And the same doctrine was reaffirmed in Montgomery v. Hernandez, 12 Wheat. 129; Fulton v. McAffee, 16 Pet. 149, and Udell v. Davidson, 7 How. 769. The heirs of Miller appear to have no interest in this suit, nor can their rights be affected by the decision. The judgment in this case is no obstacle to the assertion of their title* in an- [* 324 ] other suit, brought by themselves or any person claiming a legal title under them. And in such a suit this court would have jurisdiction upon a writ of error, whether the judgment was in a circuit court of the United States or in a state court. But this writ of error must be dismissed for want of jurisdiction. WOODBURY, J., dissented from the opinion delivered by the court. My view of the present case is, that this tribunal has jurisdiction over it, and, also, that the judgment below ought to be reversed. In order to enable us to exercise jurisdiction in this class of causes, it need only appear, that in the state court some right or title set up under a treaty with the United States was drawn in question and Henderson v. Tennessee. 10 H. overruled. The title set up below by the defendants seems very clearly to have been one of this character. The record states that "it was proved by sundry witnesses that Andrew Miller was the head of an Indian family; resided in the Cherokee nation east of the Mississippi at the date of the treaty of 1817, between the United States and the Cherokee nation; that from the spring of 1818 till his death in July or August of the same year, he resided on the land in dispute, claiming the same as a reservation, where he said he intended to live and die; and that the land in dispute was not ceded by the treaty of 1817, but was by that of 1819." Now, on such facts it is averred and admitted that the court instructed the jury, “ that although the ancestor, Andrew Miller, registered his name for the place in dispute, and took possession thereof in the spring of 1818, and died upon the place in July or August of the same year, and before the treaty of 1819, no title vested in him, Andrew Miller, and consequently none could vest or descend to his heirs." It is difficult to conceive how it is possible to say, that a title under a treaty was not thus set up or drawn in question, and was not overruled by the state court, so as to give to this court jurisdiction to revise any error committed. Such a title seems to have been the only one interposed against a recovery, and was the only one decided on below, and was there explicitly overruled. The sole argument offered here to obviate this conclusion does not appear to have been there presented or relied on. It is, that though Miller's title was there set up and overruled, it was not set up as existing in the tenants, or as the title under which they entered or claimed. [*325] *But the judiciary act, in order to give to this court jurisdiction under the twenty-fifth section, does not in terms require that such title should have been entirely vested in the tenants. It seems sufficient if it was drawn in question, or was set up, and could legally be set up, in defence, and was overruled. 1 Stats. at Large, 85. What is drawn in question in any case depends on the facts and the law applicable to that particular case. Here the title of Miller's heirs under the treaty, I have already shown, was certainly drawn in question, and as certainly was overruled by the judge. But it is argued, that the defendant must have had a right under the United States to make the defence, or we have no jurisdiction, That, however, is begging the question on the merits. It seems quite sufficient to have him set up such a right and to have it overruled. Here, too, the court below seemed to concede, that Henderson |