The national Republican., 1867-01-12
Tn. Courts.

.,Au. ~ ns.pAi, tsnssrE ilSe.
isq., Of New York, was admitted an attorney and
COUNSELLOR Of this court. .
No. 81. The United stsiss piaintifs w. Jamss 8.
,. HathAway o. ali and No. 90. The United ststss
plaintif 70. 1ohabod L. Quimby. These Gases were
'rg.sd by Mr. Attorney General ss.nbsry, Of eoan-
'sl for the plsintiasj and submitted on printed ar
ynmsnt By Mr. Nsvbsuy, Of counsel for II. do
No. so. Tho United State. plaintiff. in error ys.
Moses Mcdonald Of Al. Tbs argument Of this cause
was eommsncpd BY Mr.. Ashton, Assistant Attorney
General, Of eoun,e for the plaiptihs in error and
By Mr., Rs@snden, Of counsel for defend
Adjourped until Monday st II o'clock.
TAs Contract 10 Pay Hall PiLofdgs-L IL Mar
nims-- Prohibiboa 10 Jadgs He6man, qf ths Dis-
triet Court ef csiLorn,a-E6sef ef Diseontinaanes
1 e G s,ssss sossss rsss',s:ss ss. ci;s p "a
Judge ef tls Unifei Sfafss ysr ds Nerhsrn Die
fricf Of Csiiferris. The Court for the Northern
District o. CsiiforniA, f which no respondent IL
Judge, proceeded, Ss coort Of admiralty and mar
it,Fs jurisdiction, upou rbsl there hlsd upon .
stsanship Pseiho, 10 enforce claim for half pi-
lotags under the aet Of the LsEslaturs Of the State
Of California passed May 2oth, 1851, which. pro.
vidss that ''ah vsrsls, their tackle, apparei and
furniture, and the masters and owners thereof,
shall be jointly and ssveraly liable for pilotage
s..s 70 e 3 s:,ov;r;S . n spy sour q sc%pss:ns
and the services Of pilot declined, ons.haf Of the
(prsscribsd) rates shall be paid. ',lGs
V The respondent In the ease excepted 10 the bill
on the ground that u dld mot sst forth . case Of
which the court, as court Of admiralty, had jdris
cause proceeded; and, although there were several
cases Of the same character pending against the
ownsrs--ths California Steam Navigation Company
none Of them involved sum suihcient 70 authorize
an appeal. Motion vas therefore made before this
court Tor court Of prohibition commanding the
and the success Of the motion depends upon the do
termination Of the question whether not the Cali
fornia statute creates contraot and II So whsther
u 10 maritime contract II Il shall be held that
the statute creates q maritime contract then II IT,
Of course conceded BY the respondents In the libel
But there is no contract oreatsd BY the statute.
II Is not pretended that there was any assent on
the part Of the master or owners to any act on the
part Of the pilot BY which this claim accrued to
him. There was no obligation on the part Of the
master 10 aocept Of him pilots services. The liza
Of the statute and Che acts Of the pilot mere
legal liability. created BY statute, may furnish the
confederation or foundation Of contract, express
or implied, but is not Of itself oontraot. (Bul-
lard vs. Bell, Justice Story, Moss 1881
Still, even II there was q contract, II was not Q
contract relates to the sea- or to ship or even TO
Q particular voyage. This does not necessarily
make II maritime contract In sense which 10 the
test Of ofjurisdiction. s.''"
Abundant Instances Of spch contracts, which are
not maritime, readily suggest thsmselyes Where
thsre was sontraot with seaman In respect OF q
protected voyage, that he shouid have wages or at
the option OF the employer not svaiiing himself Of
tho services Of the seaman, the latter should be
paid certain sum. II was held that In this latter
Alternative Of the contract, u was not o mari.
time contract -(Bse's r., 100, and authorities
Although thsrs have been several cases before
this eouF respecting the validity Of potage laws,
and other regulations Of commerce BY tho statutes
Of the several States STILL In mono Of them has the
question Of the federal Jurisdiction In respect "a
such obligations been determined. II is now here
iisvsd that no court either State or federal, hal
determined that the Obligation to pay half piiotage
imposed By statute, 10 q maritime contract. II
u obvious that the admiralty and maritime juris.
dietion Of the federal courts cannot depend In any
degree upon the will Of the rssps stive States.
the district court and TO show cause was granted at
the last torn Of this COURT but ator the service Of
tho order, On motion Of the libellants, which wal
opposed BY the respondents, they wsre allowed te
discontinue upon payment Of costs, the districi
judge taking the ground thai such sr prds, Of dis
strained, but merely q withdrawal Of all proceed.
ings which had not been enjoined. Return to the
rule was accordingly now made, setting forth the
facts and showing that the proctor for the owners
accepted his costs, &c.
II 10 now submitted BY tho respondents In the
libel that the return shows no sufficient cause vhs
the writ Of prohibition should not be granted and
that Il should Issue Notwithstanding the return
and II 10 insisted that the order Of discontinuanct
made BY the district judge after the service Of ths
rule upon him was violation OF that rule and Il
wholly impairment TO the return and mere sur
plusage.
There arc no authorities which furnish an In
stance Of an inferior court proceeding In any drec
ton or to any degree In the suit before IT, while th,
very question Of Its Jurisdiction was pending upor
motion for prohibition in q superior court. Still
less can any case be found Of an inferior court 81
proceeding In the face Of an express mandate. Il
stay all proceedings In the premises untn furthe
orders. To allow the prohibition to be defeated b.
discontinuanee would not only DO against prinoipl,
and precedent touching the writ, but would DO In
furious and vsxatious to the party sueing here. L
the court has no Jurisdiction In the premises tn,
prohibition In the present case would have disposed
Of all the others. But II the proceedings set uI
BY the return be sanctioned, the same thing may
be repealed In each OF those cases; and In this
manner onsrous costs may be put upon the party
susing for, and Ii assumed, entitled TO tho pros
lection Of this cour while he Is still LEFT exposed
10 the assertion Of tho same unfounded Jurisdiction
As In the analogous case Of injunction, (Losh vs.
Hagne, Webs. Pot. cases, 200,) the complainant In
this case is entitled TO the Judgment Of the court
for his protection, notwithstanding the dscontn
uanoe. But by far greater reason should the pro
hibition issue In this oase the question Is
Jurisdiction, In which the public 10 concerned
when the writ will issue upon the suggestion Of
stranger to correct . usurpation; whereas, in tn,
absence Of the writ the records Of the district court
can only show that the libellant there, for
disclosed reason, thought proper to withdraw hil
suit by the record, still affirming bis Jurisdiction
as to which he intimates, no doubt In his return
TO the Judge. J. NJ oarlsle for motion.
CIRcUTr CoURT-Judge Oiin, presiding.-
The case Of Harris Va. Baltimore and Ohio Railroad
Company came up for further argument, after which
bis Honor ably charged tho jury, and verdict vii
probably bo returned to-day.
johnson a Co. ys. John Naigley. Judgment o.
condemnation Of goods attached.
Yeatman 4 Co. vs. Worthington Maull. Yer
dict for the plaintiff to the full amount Of check.
Gaddis vs. Bully. Judgment by dsfault.
Capnsr vs. Shoemaker. Jury respited.
|
CoURr IN EeUIrY-Judge Wylie, presiding
Mary u. Brooker vs.. Benjamin O. Brooker, No
1855. Decree Of divorce granted.
Sarah McNeir vs. VIM. McNeir, No. 724. De
cree Of divorce granted and the defendant to hAV,
the custody Of the children.
Ellen Starr vs.. J. Tucker Williams, No. 1877. Dc
cree appointing John r Callahan trustee, vice s
!