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may legislate in the absence of Congressional regulations. Sturgis vs. Crowinshield, 4 Whea. 193, Houston vs. Moore, 5 Whea. 1, Wilson vs. Blackbird Creek Co., 2 Peters, 251.

The diversities of opinion, therefore, which have existed on this subject, have arisen from the different views taken of the nature of this power. But when the nature of a power like this is spoken of, when it is said that the nature of the power requires that it should be exercised exclusively by Congress, it must be intended to refer to the subjects of that power, and to say they are of such a nature as to require exclusive legislation by Congress. Now the power to regulate Commerce, embraces a vast field, containing not only many, but exceedingly various subjects quite unlike in their nature; some imperatively demanding a single uniform rule, operating equally on the Commerce of the United States in every port; and some, like the subject now in question, as imperatively demanding that diversity, which alone can meet the local necessities of navigation.

Either absolutely to affirm, or deny that the nature of this power requires exclusive legislation by Congress, is to lose sight of the nature of the subjects of this power, and to assert concerning all of them, what is really applicable but to a part. Whatever subjects of this power are in their nature national, or admit of only one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress. That this cannot be affirmed of laws for the regulation of pilots and pilotage is plain. The act of 1789 contains a clear and authoritative declaration by the first Congress, that the nature of this subject is such, that until Congress should find it necessary to exert its power, it should be left to the legislation of the States; that it is local and not national; that it is likely to be best provided for, not by one system or plan of regulations, but by as many as the legislative discretion of the several States should deem applicable to the local peculiarities of the ports within their limits.

Viewed in this light, so much of this act of 1789 as declares that pilots shall continue to be regulated "by such laws as the States may respectively hereafter enact for that purpose." instead of being held to be inoperative, as an attempt to confer on the States a power to legislate, of which the Constitution had deprived them, is allowed an appropriate and important signification. It manifests the understanding of Congress, at the outset of the government, that the nature of this subject is not such as to require its exclusive legislation. The practice of the States, and of the national government, has been in conformity with this declaration, from the origin of the national government to this time; and the nature of the subject when examined, is such as to leave no doubt of the superior fitness and propriety, not to say the absolute necessity, of different systems of regulation, drawn from local knowledge or experience, and conformed to local wants. How then can we say, that by the mere grant of power to regulate Commerce, the States are deprived of all power to legislate on this subject, because from the nature of the power the legislation of Congress must be exclusive. This would be to affirm that the nature of the power is in any case, something different from the nature of the subject to which, in such case, the power extends, and that the nature of the power necessarily demands, in all cases, exclusive legislation by Congress, while the nature of one of the subjects of that power, not only does not require such exclusive legislation, but may be best provided for by many different systems enacted by the States, in conformity with the circumstances of the ports within their limits. In constructing an instrument designed for the formation of a government, and in determining the extent of one of its important grants of power to legislate, we can make no such distinction between the nature of the power and the nature of the subject on which that power was intended practically to operate, nor consider the grant more extensive by affirming of the power, what is not true of its subject now in question.

It is the opinion of the majority of the court that the mere grant to Congress of the power to regulate Commerce, did not deprive the States of power to

regulate pilots; and that although Congress has legislated on this subject, its legislation manifests an intention, with a single exception, not to regulate this subject, but to leave its regulation to the several States. To these precise questions, which are all we are called on to decide, this opinion must be understood to be confined. It does not extend to the question what other subjects, under the commercial power are within the exclusive control of Congress, or may be regulated by the States in the absence of all Congressional legislation; nor to the general question how far any regulation of a subject by Congress, may be deemed to operate as an exclusion of all legislation by the States upon the same subject. We decide the precise questions before us, upon what we deem sound principles, applicable to this particular subject in the state in which the legislation of Congress has left it. We go no further.

We have not adverted to the practical consequences of holding that the States possess no power to legislate for the regulation of pilots, though in our apprehension these would be of the most serious importance. For more than sixty years this subject has been acted on by the States, and the systems of some of them created, and of others essentially modified during that period. To hold that pilotage fees and penalties demanded and received during that time, have been illegally exacted, under color of void laws, would work an amount of mischief which a clear conviction of constitutional duty, if entertained, must force us to occasion, but which could be viewed by no just mind without deep regret. Nor would the mischief be limited to the past. If Congress were now to pass a law adopting the existing State laws, if enacted without authority, and in violation of the Constitution, it would seem to us to be a new and questionable mode of legislation.

If the grant of commercial power in the Constitution has deprived the States of all power to legislate for the regulation of pilots, if their laws on this subject are mere usurpations upon the exclusive power of the general government, and utterly void, it may be doubted whether Congress could, with propriety, recognize them as laws, and adopt them as its own acts, and how are the legislatures of the States to proceed in future, to watch over and amend these laws, as the progressive wants of a growing Commerce will require, when the members of those legislatures are made aware that they cannot legislate on this subject without violating the oaths they have taken to support the Constitution of the United States.

We are of opinion that this State law was enacted by virtue of a power, residing in the State to legislate; that it is not in conflict with any law of Congress, that it does not interfere with any system which Congress has established by making regulations, or by intentionally leaving individuals to their own unrestricted action; that this law is therefore valid, and the judgment of the Supreme Court of Pennsylvania in each case must be affirmed.

LOSS OF A BAGGAGE CHECK BY A PASSENGER DOES NOT RELIEVE A RAILROAD COMPANY FROM LIABILITY.

In the First District Court, (New York City, 1852.) Judge Green presiding. Patrick Cass vs. The New York and New Haven Railroad Company.

This was an action to recover $100 00, the value of a trunk and contents placed in possession of the baggage-keeper, in June last, but not delivered. It appears that Bedura Ann Kelley took the cars at Stamford, Connecticut, for New York, gave her trunk to the agent of the cars and received a check for it, but lost the check on the road; and the agent on the arrival of the cars at Canal street, refused to deliver the trunk to her, although she pointed it out to him and told him she had lost the ticket; also, that she could not read and did not know the number of the ticket. She again demanded the trunk, but he refused, and she asked him to keep it for her till she called for it. She being sick was subsequently taken to Bellevue Hospital, and did not leave there for five months. When she came out she sold and assigned the trunk and contents to plaintiff, who went with her to the depot and demanded the trunk of the managing agent, but on search being made it could not be found.

The Judge held that in common law, the railroad company is liable for the loss of baggage intrusted to their care, and the giving a check to a passenger designating the number of the baggage was intended to furnish the passenger with additional security, and the loss of the check does not relieve the company from liability, unless some other person presents the check, and in good faith and without notice the baggage is delivered to the party so offering the check, Nothing of the kind was shown here, and the plaintiff is entitled to judgment for $100 (being amount of claim) and costs.

ACTION FOR BREACH OF CONTRACT TO DELIVER PART OF A CARGO OF GUM. When a contract is made between two firms to purchase goods on joint account, but bought in the name of only one of them, the original terms of purchase cannot be varied without consent-and the silent party is entitled to his proportion of the gross bulk, at the price and upon the terms originally contracted for.

Court of Common Pleas, New York, before Judge Woodruff, May, 1852. Davenport vs. Tilden and Blodgett, in action for a breach of contract to deliver to plaintiff part of a cargo of gum copal.

The transaction occurred in September, 1850, at which time a cargo of gum copal, belonging to Grinnell, Minturn & Co., was on board the ship Emily, lying at this port. The defendants and a Mr. Gillespie, agent for the plaintiff, both wished to purchase it, and thinking it might be got on better terms if but one of the parties offered for it, the defendants entered into a written contract with the plaintiff, through his agent, Gillespie, by which they agreed that, if they bought the cargo, they would sell to Davenport & Co. from 30,000 lbs. to 40,000 lbs. of it, at the same price, and on the same terms and proportion, as they would pay for it themselves. From the evidence for the defendants, it appeared that when Gillespie was negotiating the contract for the plaintiff, he informed the defendants that Davenport & Co. were a house in this city, which was not the fact, Mr. Davenport having no partner, nor ever intimated that he had one. As the parties did not wish Grinnell & Co. to know that the cargo was purchased on their joint account, it was agreed that the plaintiff should not be delivered his part of it on shipboard, and the whole cargo was brought on shore and stored by the defendants. From the time the purchase was thus consummated by the defendants, until early in the following December, various interviews took place between the plaintiff and defendants in relation to his claim for half the cargo, which the defendants would not deliver, except on terms which the plaintiff would not accede to. The defendants alleged that they had contracted to sell the gum not to the plaintiff alone, or on his credit only, but to the firm of Davenport & Co., and that they would not take his paper for it. The defendants also alleged that in their bargain with Grinnell, Minturn & Co., although they were to have a credit of six months, they also had the option of paying cash and receiving a discount, and that they would pay cash, and the plaintiff must do so also. After various negotiations on the subject, the defendants, early in December, notified Davenport & Co., that they were ready to deliver the gum on received approved paper for it, and if Davenport & Co. did not comply with this offer, they would consider the contract at an end. The defendants purchased the gum at 10 cents, and it appeared that from September to February good gum could be purchased for 94 cents, at six and eight months, but shortly after it rose 10 per cent.

The Court charged the jury. The first question which they had to determine was whether the defendants made the contract as set forth in the complaint. It was not denied by defendants that they had signed the paper which was read in evidence. But it is denied that by this writing the defendants entered into a contract with plaintiff alone. On the contrary, it is said that it was made with two persons at least, and on the credit of more than one individual.

If the contract was made with Davenport and another, the plaintiff cannot maintain his action in his own sole name, in the absence of a transfer to him of the interest of his co-contractor. On this part of the case, the court had to let in evidence in order to see if Davenport & Co. meant only J. D. Davenport and no one else; add whether J. D. Davenport was in fact the only party for whom

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the agreement had been made; or whether putting in the word " company a mistake of which he could avail himself in carrying out the contract. The tes timony of the plaintiff, to which there is no contradiction, shows that whatever may have been the representations of Mr. Gillespie, or however it was understood by Tilden, in point of fact, the plaintiff had no partner, and the agreement was only for his own benefit, and not that of any one else. And if so, although the defendant may not be bound by it if there was any misrepresentation, still, if it is a fact that Davenport had no partner, he is, therefore, a proper party to stand here in court and assert his right to the performance of this agreement. But if the defendants contracted on the credit of a firm, and on the representations of plaintiff's agent that he or other persons were partners of Davenport, the defendants were not bound to deliver the property on the credit of one person only. And I do not understand that defendant ever refused to deliver the gum on a demand made in the name of Davenport & Co., or that the plaintiff ever claimed it on the credit of Davenport & Co. But if your reflections lead you to the conclusion that from the position of Davenport's agent, Gillespie, and the knowledge which Tilden had on the subject, the agreement was intended and understood by the parties, to be between the defendants and plaintiff alone, then it is my duty to say that the defendants, on effecting a purchase of the cargo, were bound to sell not less than 30,000 lbs. of it to the plaintiff, on the same terms as they paid for it; and also, that the plaintiff was entitled to an equal proportion of it in respect to quality, and on the same terms of sale as the defendants made with Grinnell, Minturn & Co., from whom they purchased it. And the subsequent agreement between Tilden and Grinnell, that Tilden might pay cash and receive a discount, could not affect the plaintiff's right. It was said that Tilden could make an after arrangement, by which he was to pay cash, and then say to Davenport that he should also pay cash; but, according to the terms of the contract, if the sale was made at six months' credit on the purchaser's own note, then the plaintiff was entitled to receive his portion of the cargo from Tilden, at six months' credit on his own note. Because it was the duty of the seller, before he made the agreement, to inquire whether Davenport was entitled to have it on his own note. If you come to the conclusion that Tilden was entitled to have the notes of Davenport & Co., and that Davenport did not comply with the contract by offering such notes, then you must find for the defendants. If you find for the plaintiff, you will give him the difference between the price at which the defendants agreed to sell, and the market value of gum of like quality and quantity at the time it was deliverable according to the contract. The jury found a verdict for the plaintiff-damages $184.

SUIT FOR COLLISION.

In the United States District Court, May 22d, 1852. Before Judge Judson. Charles E. Kelsey and another, vs. the schooner William Kallahan.

The schooner Archelaus, Charles E. Kelsey master, on the night of the 13th of October, 1851, that being a bright and clear moonlight night, was beating her way down the North River, W. S. W., flood tide, close hauled on her starboard tack, five points on the wind, full and by. At the same time the schooner W. Kallahan, P. M'Dermot master, was laying her course up the river, with the wind free, heading rather towards the New Jersey shore. The two vessels were seen by each at the distance of about half a mile. The collision took place west of the middle of the river, at a point about two-thirds over from the east shore. The Archelaus was struck on her lee bow, between her stem and fore rigging, going down immediately, and proved a total loss.

Two questions have arisen:-1st. Has the court jurisdiction of the subject matter of the controversy? On this point the facts are admitted, and out of this admission the question is raised. The collision occurred on the North River, within the Southern District of New York. At the precise time when the libel was filed in the clerk's office, the schooner W. Kallahan was on a voyage from Albany to Philadelphia, and was not within the Southern District of New York

-and that, at a subsequent day, she came within the district, and was here attached by the process on this libel, and is now responding to the libel.

The time of service of process is the true period of the commencement of a suit, and the jurisdiction attaches to the case from that day. The cause is therefore properly here.

2d. On whom shall the loss fall is the next question. After ascertaining the position of each vessel, as above stated, there is one important fact proved to the entire satisfaction of the court, which must be deemed a controlling fact in the

case.

At the time of the collision, the schooner William Kallahan had no sufficient look-out. The man placed forward was part way down the ladder of the forecastle, and did not descry the Archelaus, and gave no order to the man at the wheel of the approach of danger. It was peculiarly his duty and business, in a place like that, to have remained at his post, and there is no doubt that if he had been at his post, the collision would not have occurred.

As a strong corroborating fact, it appears that the man at the helm, immediately upon the accident, found fault with the look-out because timely notice had not been given him, and in his testimony he adds, that the sails of his vessel prevented his seeing the Archelaus until she was about being struck.

The rule of law is well settled, that a vessel with the wind free must give way in time to a vessel close hauled on the wind, and that a vessel so sailing should not only have a look-out, but that he should do his proper duty.

The evidence in the case shows that the fault rests with the William Kallahan, and she must stand responsible for the consequences.

Decree for libellants, with reference to a commissioner to ascertain the damage.

DAMAGES FOR INJURIES RECEIVED IN RAILROAD CARS.

An action was brought before Judge Campbell, in the New York Superior Court, by Patrick Carroll against the New York and New Haven Railroad Company, to recover damages for injuries received while riding in the cars of that company.

It appeared that, on the 25th of October, 1851, the plaintiff took his seat in the express train, with a ticket for New Rochelle, but as that train did not stop there, he was carried on to Stamford; and the conductor gave him a free ticket back to New Rochelle. Plaintiff got into the return train, which came into collision with a freight train, running out of time. Some of the brakemen on the forward part of the train were killed, and the plaintiff, being in the baggage car, was severely injured.

The defendants admit their negligence in running their trains out of time, but they also charge negligence upon the part of the plaintiff, in leaving the seat in the passenger car, which had been provided for him, and going into the baggage car, a place of danger, contrary to the rules in the printed notices in the cars. They also rely upon the fact that the plaintiff was a passenger gratuitously.

The court charged the jury that the defendants were bound to carry their passengers with safety, using the utmost care and diligence, so far as human foresight could provide. If the plaintiff was in the cars as a free passenger, that will qualify the responsibility; still, if he was there with license, they are responsible. The defendants' negligence is not denied, but if both parties are alike guilty of negligence, the plaintiff cannot recover. But the negligence of the plaintiff must concur directly with the injury; it must contribute directly, not remotely, not consequentially, to produce the injury. For instance, if the baggage had fallen upon him, and injured him, while in the baggage car, he would have been guilty of negligence. You will consider whether there was negligence on the part of the plaintiff. Admitting, also, that he was in an unsafe place, contrary to the rules of the company, you will consider whether he was not in there with the assent and knowledge of the conductor; if so, he was not there wrongfully. If you find that the plaintiff was not guilty of any negligence

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