Usual conditions annexed to such a loss, in order that it may be the object of such contribution, as generally stated, are, that it must have been of an extraordinary nature, advisedly incurred, under circumstances of imminent dan ger, for the common benefit of ship and cargo; and it must have aided at least in the accomplishment of that purpose. M. & P. on Ship. 320; Macl. Ship. 556; Smith, M. L. 6th ed. 336; Barnard v. Adams, 10 How. 270.

Suggestion is that the cargo was separated from the ship; but the mere fact that the cargo is unladen, although it is done in part for the purpose of saving the goods, yet, if it is also done for the purpose of lightening the vessel, and as a means of causing her to float, and of saving her from the common peril, will not nec371*] essarily devest the transaction of *its character as an act performed for the joint benefit of the ship and cargo.

Except when the disaster occurs in the port of destination, or so near it that the voyage may be regarded as ended, the master, if the goods are not perishable, has the right, and if practicable, it is his duty to get off the ship, reload the cargo, and prosecute the voyage to its termination.

Where the whole adventure is saved by the master, as the agent of all concerned, the consignments of the cargo first unladed and stored | in safety are not relieved from contributing towards the expenses of saving the residue, nor is the cargo, in that state of the case, relieved from contributing to the expenses of saving the ship, provided the ship and cargo were exposed to a common peril, and the whole adventure was saved by the master in his capacity as agent of all the interests, and by one continuous series of

measures.

Ship and cargo were in imminent danger from a common peril and, under those circumstances, it was the duty of the master, as the agent of all concerned, to use his best endeavors and employ his best exertions to save the whole ad

venture.

Viewing the matter in that light, his first efforts were directed to the object of relieving the vessel by means of the steamers which came alongside, but finding that the ship was too fast in the sand to be got off by those means, he commenced to discharge the cargo, to save the goods and lighten the ship as, apparently, the best possible measure which could be adopted to save the whole adventure.

7. None of these propositions are controverted by the plaintiffs; but they insist that the subsequent expenses incurred by the agent of the underwriters of the ship should also be carried into the adjustment, and that the cargo saved by the master should be adjudged liable to contribute towards the expenses incurred by the agent of the underwriters of the ship in accomplishing, at the end of six weeks, what the master abandoned as hopeless and as a total loss.

Before the last-named agent came on board, the master, ascertaining that the consignees of 372*] the ship would not authorize *any further expenditure, had dismissed the steamers that went to the aid of the ship and had sent

ing apparatus he had employed in his endeavors to save the ship as well as the cargo, and had, in fact, decided to abandon the ship as a total loss, and left her in charge of the agent of her underwriters.

Prior to that decision the cargo, except a few remnants of small value, subsequently found in the lower hold, had been discharged into lighters and transported to the place of destination, and had been delivered into the possession of the consignees.

Having saved the cargo, and finding that further efforts to save the ship with the means at his command were fruitless, he relinquished his endeavors and abandoned the undertaking.

Such are the undisputed facts of the case and, under the circumstances, it is not possible to hold that the ship, as subsequently got off, was, as matter of fact, saved by a continuation of the same series of measures as those by which the cargo was saved.

Complete separation had taken place between the cargo and the ship, and the ship was no longer bound to the cargo nor the cargo to the ship.

Undoubtedly, the doctrine of general average contribution is deeply founded in the principles of equity and natural justice, but it is not believed that any decided case can be found where the liability to such contribution has been pushed to such an extent as that assumed by the plaintiffs. Slater v. Rubber Co. 26 Conn. 129; Nimick v. Holmes, 25 Pa. 371.

was

First case cited for the plaintiffs is that of Bevan v. United States Bank, 4 Whart. 301, which is the strongest reported case in their favor. Plaintiffs were the owners of the vessel, and the defendants were the owners of a certain quantity of specie, which constituted a part of the cargo. Voyage was *from New Or- [*373 leans to Philadelphia; and the vessel stranded in Delaware bay in a situation of imminent peril. Statement of the case shows that the specie was among the first articles landed, and it was immediately sent overland to the port of destination, and on the following day was delivered to the defendants. Eight weeks afterwards the vessel reached the same port in safety with the remainder of the cargo, which had been discharged into lighters and was afterwards reshipped. Supreme court of Pennsylvania held that the defendants were liable to contribute in general average to the charges and expenses incurred subsequently to the landing of the specie.

Much stress is laid, in the opinion of the court, upon the fact that the vessel and the residue of the cargo left on board, were subsequent ly brought into port by the extraordinary exertions of the master; and if the conclusion can be sustained at all, it must be upon the ground that the whole adventure was saved by a continuous series of measures, prosecuted by the master as the agent of all concerned, which commenced with the saving of the specie, and ended with the saving of the vessel and the residue of the cargo. Stranding in that case was outside of the harbor of the port of destination, and there was no abandonment of the vessel, nor any suspension in the endeavors of the master to save the entire adventure. But the statement of the case shows that the master

Second case cited is that of Bedford Com. Ins. Co. v. Parker et al. 2 Pick. 1, which can scarcely be reconciled with the preceding case. 374*] *Insurers of the ship were the plaintiffs and the defendants were the owners of the argo. She was stranded nine miles from the port of destination. Part of the cargo was saved by men employed by the owners of the same, at their own expense. Other parts of the same were subsequently saved by the underwriters of the ship; and it appears that at one time the latter had a hundred men employed in efforts to save the cargo, and the sails and rigging of the vessel. They afterwards entered into a contract with a third party, and agreed to pay a certain sum if he would save the ship and the residue of the cargo.

Reported facts show that the contractor ultimately succeeded, and brought the ship and such part of the cargo as remained on board, safely into the harbor; and the court held, and well held, that only that part of the cargo which was on board when the contract was made, was liable to contribute in general average to pay the amount as stipulated in the contract. Clear inference, from the statement of the case, is that the master had abandoned the ship, and that he had no participation in the previous endeavors to save the cargo. Decision was, that everything which is saved in such a case, by common expense and labor, shall contribute to pay that expense in proportion to its value; but the court decided that the part of the cargo taken from the vessel by the owners, before the contract was made, was not saved by the successful efforts of the contracting party, and there can be no doubt that the decision was correct. Col. Ins. Co. v. Ashby, 13 Pet. 331.

Earliest case upon the subject is that of Shepherd v. Wright, Show. P. C. 28, which was an appeal from a decree in the court of chancery. Appellants shipped a part of the cargo, and were the owners of the ship, and the residue of the cargo belonged to the respondents. Ship sailed from Messina, bound to London, and on the voyage she was chased by an armed vessel into Malaga. Advised of the danger, the factor of the ship sent lighters to the master, to save 375*] what he could of the cargo; *and as the goods of the respondents were silks, they were first carried on shore. Night came, and the armed vessel left, and as the danger no longer continued, the master forebore to land any more of the goods. Six days afterwards the armed vessel returned, and captured the ship and the goods on board, belonging to the appellants.

Third case cited by the plaintiffs is that of Nelson v. Belmont, 21 N. Ỹ. 38, which has an important bearing upon the question under consideration. Plaintiff in that case being the own er of the ship, claimed general average contribution of the defendant, as the shipper of a certain amount of specie. Intended voyage was from New Orleans to Havre; but the ship was struck with lightning in the Gulf Stream, and was obliged to make a port of distress. Unable to extinguish the fire, the master signaled a vessel in sight, and accepted assistance. He transferred the specie to the other vessel, and the arrangement was, that the other vessel should accompany the vessel in distress to Charleston; but after arriving in the harbor, and before the vessels reached the wharf, the master took back the specie, and subsequently deposited it in bank. Damage was done to the residue of the cargo by the fire; and the means adopted to extinguish the fire, after the vessel reached the wharf, caused her to sink, and the master was obliged to incur expense to raise the vessel, in order to prosecute the voyage. Judgment of the court of appeals was that the specie was liable, in *general average, for the amount [*376 paid for the services of the other vessel, and for the expenses incurred at the port of distress.

Precise doctrine advanced was, that the liability to general average continues until the property has been completely separated from the rest of the cargo, and from the whole adventure, so as to leave no community of interest remaining. Majority of the court went further, and held that if the voyage is not abandoned, and the property, although separated from the rest, is still under the control of the master, and liable to be taken again on board for the purpose of prosecuting the voyage, the common interest remains, and whatever is done for its protection, is done at the common expense. Correctness of that decision cannot be doubted; and yet the question may often arise in practice, whether in a given case the separation is, or is not, so complete as to justify the conclusion that no community of interest remains. Close cases may doubtless arise, but it is believed that in general there will not be much difficulty in ascertaining the true line of distinction.

were

Where a ship was stranded by perils of the sea, and in order to lighten the vessel, the cargo was discharged and forwarded in another vessel, and subsequently new measures adopted, and additional expenses were incurred in getting the ship off and taking her into port for repairs, it was held that the expenses incurred from the misadventure until the cargo was discharged, constituted a general average, but that the subsequent expenses were particular average, and chargeable only to the ship. Job v. Langton, 6 El. & Bl. 779; M. & P. on Ship. 3d ed. 322.

ploy a steam tug in order to get the vessel off; and the view of the court was, that the goods had been previously saved by a distinct and completed operation, and that afterwards a new operation began for the benefit of the ship

owner.

377*] *Judgment in that case was given by Lord Campbell, and in a subsequent case he repeated and enforced the reasons on which the former judgment rested. Moran v. Jones, 7 El. & Bl. 532. Voyage, in the last case, was from Liverpool to Callao. Ship was driven on a bank by a storm, near the port of departure. Cargo was discharged and transported back to the port whence it came, and some days afterwards the ship was got off, taken to the port, and repaired, and again took the cargo on board and proceeded on the voyage; and it was held that the saving of the ship and of the cargo was one continued transaction, and that the expenses were general average, to which the ship, freight and cargo must contribute. Considering that the goods remained under the control of the master until the ship was got off, repaired, and was enabled to take the goods on board and prosecute her voyage, it is clear that the decision was correct, and entirely consistent with the previous adjudictation. Macl. Ship. 573, 576.

10. Applying those principles to the present case, we are of opinion that there was no community of interest remaining between the ship and the cargo when the master, as declared in the statement of the case, abandoned the ship, and left her in charge of the agent of the underwriters, after the consignees of the ship had declined to authorize the master to incur any further expense.

Judgment of the Circuit Court is, therefore, reversed and the case remanded, with directions to issue a new venire.

William M. Stewart for appellant. Messrs. John A. Wills and J. Hubley Ashton for appellees.

Mr. Chief Justice Chase delivered the opinion of the court.

This is a motion to dismiss the appeal in this case for want of jurisdiction.

The decree appealed from was rendered by the district court for the northern district of California on the 23d of November, 1859. On the 24th of January, 1860, an appeal was granted on motion by the United States.

This appeal seems to have been dismissed; and on the 11th of November, 1864, an appeal then district attorney of the United States being present in court.

was allowed on the motion of the claimant, the

turnable to the next term in this court, nor was No citation was issued upon this appeal rethe record filed and the cause docketed during that term.

tion was issued returnable at this term, and On the 29th of May, 1865, however, a citaservice of this citation was acknowledged by the present district attorney; and the writ was returned and the record filed at this term under an agreement between the district attorney and the attorney for the claimants, to submit the cause upon printed briefs.

of the Attorney General, who has withheld his This arrangement was subject to the approval approval and has moved to dismiss the appeal.

it has been allowed by some act of Congress, We have no jurisdiction of this appeal, unless and has been brought in substantial conformity with the legislative directions. The appellate jurisdiction of this court is, indeed, derived from the Constitution; but by the express terms of the constitutional grant, it is subjected to such exceptions and to such regulation as Congress may make.

In the judiciary act of 1789, and in many acts since, Congress has provided for its exercise in such cases and classes of cases, and under such regulations as seemed to the legislative wisdom convenient and appropriate. The court has always regarded appeals in other cases as excepted from the grant of appellate power, and has always felt itself bound to give effect to the

An appeal under section 10 of the act of March 3, 1851, to ascertain and settle private land claims in the state of California, is subject, in regard to its return and the citation, to the provisions of the judiciary act of 1789 and the additional act of 1803. An appeal, therefore, allowed Nov. 11, 1864, where a copy of the record was not sent to this court at the next term, became void, and the citation subsequently issued was without avail.

[No. 302.]

the manner of its exercise. We here use the word "appeals" in its largest sense, comprehending writs of error, and every other form in which appellate jurisdiction may be invoked or brought into action.

The acts of Congress providing for and regulating appeals have been often under the consideration of this court; and it may now be regarded as settled, that in the cases where appeals are allowed by the judiciary act of Sept. 24, 1789, ch. 20 (1 Stat. 73), and the additional act of March 3, 1803, ch. 40 (2 Stat. 244), the

PPEAL from the District Court of the United States for the Northern District of California.

The case is sufficiently stated by the court.

peal, together with a copy of the record and the citation, when a citation is required, must be returned to the next term of this court after the writ is sued out or the appeal allowed; otherwise the writ of error, or the appeal, as the case may be, will become void, and the party desir

ing to invoke the appellate jurisdiction will be obliged to resort to a new writ or a new appeal. U. S. v. Hodge, 3 How. 534; Villabolos v. U. 8. 6 How. 90; U. S. v. Curry, 6 How. 112; The Virginia v. West, 19 How. 182, 15 L. ed. 594; Ins. Co. v. Mordecai, 21 How. 200, 16 L. ed. 95; Mesa v. U. S. 2 Black, 721, 17 L. ed. 350.

In the case now before us, the rule just noticed was not followed. The appeal was allowed on the 11th of November, 1864, and the allowance, with a citation to the adverse party, duly served, and a copy of the record, should have been sent here at the next term. This was not done, and the appeal, therefore, became void. The citation subsequently issued was consequently without avail, for there was no subsisting appeal.

JOHN MCGUIRE, Plff. in Err.,

v.

COMMONWEALTH OF MASSACHUSETTS. (See S. C. 3 Wall. 382-387.)

in Appellate jurisdiction—omission record supplied by certiorari―sickness of counsel— withdrawal of appearance-practice on.

Where one was indicted in a state court for sell.

ing intoxicating liquors, and he set up as a defense a license from the United States as a wholesale dealer in liquors, and the decision of the court was against his right claimed under the license, this court has jurisdiction of the cause.

Where the judgment was the final decision of the highest court of the state in which a decision of the sult could be had, the omission to set forth in the record the exceptions and the rulings of a higher state court, upon whose order the judgment had been entered, is no deficiency which needs to be supplied by certiorari.

sel.

After the withdrawal of the appearance, the defendant in error, under the 16th rule, may have the plaintiff called and the suit dismissed, or may open the record and pray an affirmance.

If this appeal, therefore, is to be disposed of

[No. 161.]

Motion to set for argument, argued Feb. 9, 1866. Granted, Feb. 13, 1866. Cushing's 3 motions filed and argued, Feb. 16, 1866. Decided Feb. 19, 1866.

by this tribunal, it must be dismissed.

But it does not come before us under those acts.

It was allowed under the 10th section of the act of March 3, 1851, ch. 41 (9 Stat. 631), to ascertain and settle private land claims in the state of California, which authorizes the allow51*] ance of appeals *on application to the district court, and giving security, if required, for prosecution.

This act makes no provision concerning returns to this court, and none concerning citations; nor does it impose any limitation of time within which appeals may be allowed.

But we cannot suppose that Congress intended no regulation of these appeals in these important respects. It had already prescribed regulations for the most usual invocation of appellate jurisdiction; and when it provided for appeals in these land cases from the district court for California, it had, doubtless, these regulations in view. We think, therefore, that the appeals authorized by this section must be regarded as appeals subject to the general regulations of the acts of 1789 and 1803. If we held otherwise, we should be obliged to sanction appeals taken at any term, and brought here at any time after final decision; or to confine the right of appeal to the term of the district court in which the decision complained of was made. We cannot ascribe to Congress either intention.

The appeal before us, therefore, must be considered as having been made subject to those regulations, and must be dismissed for want of conformity to them by the appellant.

State of Massachusetts.

The case sufficiently appears in the opinion. Messrs. W. Richardson, Caleb Ĉushing and Ransom Hooker Gillet for plaintiff in er ror.

Messrs. Chester I. Reed, Dwight Foster and James Speed, Atty. Ger.., for defendant in error.

Mr. Chief Justice Chase delivered the opin ion of the court:

At the last term, a motion to advance this case upon the docket was made by the counsel for the plaintiff in *error. It was then [*384 denied, because the Attorney General declined to state that the case was one in which the interests of the public revenue were concerned; because the Attorney General of Massachu setts, though consenting to an early hearing, did not ask for it; and because, in our opin ion, the importance of the result to the plain tiff in error was not sufficient to warrant the preference asked for, over suitors having prior cases on the docket.

At this term, another motion was made to advance the case. This motion was made by the Attorney General of Massachusetts, with whom the Attorney General of the United States joined. Both united in representing that the litigation growing out of the question presented by this record, has so increased and has assumed such a character, that the public interests, both of Massachusetts and of the United States, require an early hearing and decision of it.

This motion was now opposed by the counsel for the plaintiff in error; but having been fully

NOTE.-Certiorari in United States courts-see note to Clark v. Hackett, 17 L. ed. U. S. 69.

considered by the court, it was allowed, and an order was made on the 13th instant, by which the cause was assigned for hearing on this day; or, at the option of the counsel, immediately after the close of the arguments in the cause then being heard.

Since this order was made, the plaintiff in error, by his counsel, has submitted three motions which have been argued and considered.

I. The first is that in case the court shall be satisfied that it has jurisdiction of the case in the record, a writ of certiorari be sent to the superior court of Massachusetts, or to the supreme judicial court of Massachusetts, to bring up the complete record; it being suggested that the record before us does not show the rescript of the latter court, supposed to contain its judgment in the case, sent down for execution to the former court.

It is quite clear that the record contains a case within the 25th section of the judiciary act of Sept. 24, 1789, ch. 20 (1 Stat. 73), and, therefore, a case of which this court has jurisdiction. The plaintiff in error was indicted in the state court for selling intoxicating liquors contrary to the statutes of Massachusetts. He set up as a defense that he had received a license from the United States, which, under the true construction of the internal revenue act, authorized him to carry on the business of a wholesale dealer in liquors, and, therefore, had a right to sell liquor as charged, notwithstanding the statutes of Massachusetts to the contrary. The decision of the court was against the right claimed under the internal revenue act, and this made the precise case of which 386*] the judiciary *act gives jurisdiction to this court. The cause, therefore, cannot be dismissed for want of jurisdiction.

Nor do we perceive sufficient reason for awarding a writ of certiorari to bring up a more perfect record. It appears from the record before us that after verdict, and before judgment in the superior court, certain exceptions were sent up to the supreme judicial court for its opinion, and that a rescript was subsequently sent down, overruling them, whereupon final judgment was entered upon the verdict. This, we understand, was according to the law and practice in Massachusetts, and the effect was to leave the entire record in the superior court.

If this were a case where the supreme judicial court had rendered the final judgment, and had sent the judgment to the superior court for execution, and with the judgment, the record, the direction of the writ of error of this court to the latter court would have been prop

er.

This was settled in the case of Gelston v. Hoyt, 3 Wheat. 246, with which we are entirely satisfied.

tions certified to it. The record shows clearly and fully the whole case upon which we are to pass, and the omission to set forth in it those exceptions and the rulings before them is no deficiency which needs to be supplied by certiorari.

The first motion must, therefore, be overruled.

II. The second motion is for leave to discontinue the writ of error at the cost of the plaintiff in error.

*It is not the practice of this court to [*387 allow a discontinuance to any case, except for sufficient reasons assigned, or by consent of the adverse party. In the case before us the Attorney General of Massachusetts resists the motion. The only reasons assigned in support of it are the alleged inability of the leading counsel for the plaintiff in error to make proper preparation for argument within the time allowed, and the sickness of one of his associate counsel. Our opinion of the learning and ability of the counsel who submits the motion obliges us to think that he has underrated his power and overrated his need of preparation to set before us the case of his client in all the strength of which it is capable, notwithstanding the absence of his associate, whose indisposition to us, as to him, causes sincere regret.

The second motion, therefore, must be, also, overruled.

III. The third motion is for leave to withdraw the appearance of all the counsel, and to have the plaintiff called under the 16th rule.

It is usual in this court to grant leave to withdraw an appearance whenever asked, saving however, all the rights of the adverse party. That leave will, therefore, be granted in this case. We cannot, however, require the calling of the plaintiff with a view to the dismissal of the writ of error. After the withdrawal of the appearance in the case before us, it will be the right of the defendant in error, under the 16th rule, to have the plaintiff called and the suit dismissed, or to open the record and pray an affirmance.

บ.

THE PROPELLER OTTAWA, her Tackle, etc., Martin Ryerson, Claimant and Appt., ROBERT STEWART, The Pacific Mutual Insurance Company, and The Arctic Insurance Company of New York.

(See S. C. "The Ottawa," 3 Wall. 269-275.) Utility of cross-examination-collision-proper lookouts on vessel where they should be stationed.

*1. Confined within reasonable limits, cross-examination is a right, and it is of great value as a means of separating hearsay from knowledge, inference from recollection, error from truth, and opinion from fact; or of ascertaining the true order of events as narrated, or the time and place when and where they occurred.

We are not concerned here with the rulings of the supreme judicial court upon the excep

3. Proofs in this case show that the propeller was in fault, because she did not have a proper lookout, as required by the rules of navigation.

*Headnotes by Mr. Justice Clifford, who delivered the opinion.

185