v. Ogden, or to the exclusive power of Congress to regulate commerce. Nor does the Wheeling Bridge Case at all conflict with either. The case of Wilson v. The Blackbird Creek, &c., governs this, while it has nothing in common with that of the Wheeling Bridge.

The view taken by the court of this point dispenses with the necessity of an expression of opinion on the questions on which so much testimony has been accumulated: What is the proper width of draws on bridges over the Passaic? How far the public necessity requires them? What is the comparative value of the commerce passing over or under them? What the amount of inconvenience such draws may be to the navigation, and whether it is for the public interest that this should be encountered rather than the greater one consequent on the want of such bridges? and, finally, the comparative merits of curved and straight lines in the construction of railroads. These questions have all been ruled by the legislature of New Jersey, having (as we believe) the sole jurisdiction in the matter. They have used their discretion in a matter properly submitted to it, and this court has neither the power to decide, nor the disposition to say, that it has been injudiciously exercised.

BILLS DISMISSED WITH COSTS.

As already mentioned in the text (p. 721), this decree was subsequently affirmed in the Supreme Court of the United States, the court being equally divided, however, and no opinion given.

INDEX.

ADMINISTRATOR.

Where an administrator had been appointed, and after giving the re-
quired bonds informed the court that he was unable to act, and re-
signed the appointment, not having taken possession of the property
of the intestate, or attempted to exercise any control over it, it was
competent for the court to accept the resignation, and to appoint a
new administrator. The power to accept the resignation and to make
the second appointment, under these circumstances, were incidents
of the power to make the first. Comstock v. Crawford, 396.

ADMIRALTY

I. JURISDICTION.

1. Where a damage done is done wholly upon land, the fact that the
cause of the damage originated on water subject to the admiralty
jurisdiction does not make the cause one for the admiralty. The
Plymouth, 20.

2. Hence, where a vessel lying at a wharf, on waters subject to admiralty
jurisdiction, took fire, and the fire, spreading itself to certain store-
houses on the wharf, consumed these and their stores, it was held not
to be a case for admiralty proceeding. Ib.

II. PRACTICE.

8. A libel in rem against a vessel and personally against her master may
properly under the present practice of the court be joined. And if
the libellant have originally proceeded against vessel, master, owners,
and pilot, the libel may with leave of the court be amended so as to
apply to the vessel and master only in the way mentioned. Newell
v. Norton and Ship, 257.

4. A person who is master and part owner of a vessel in which a cargo
has been wrongly sunk by collision from another vessel, may properly
represent the insurer's claim for the loss of the cargo, and proceed to
enforce it in rem and in personam through the admiralty. Ib.

AGENCY.

1. Whether there is sufficient proof of agency to warrant the admission
of the acts and declarations of the agent in evidence, is a preliminary
question for the court. Cliquot's Champagne, 114.

795

AGENCY (continued).

2. Whatever is done by an agent, in reference to the business in which
he is at the time employed, and within the scope of his authority, is
said or done by the principal, and may be proved as well in a crim-
inal as a civil case, in all respects, as if the principal were the actor
and the speaker. Ib.

AMENDMENT. See Admiralty, 3; Practice, 6.

APPEAL. See Practice, 2, 11, 12, 18.

1. Appeals from the District Courts of California, under the act of 3d
March, 1851-which, while giving an appeal from them to this court,
makes no provision concerning returns here, and none concerning
citations, and which does not impose any limitation of time within
which the appeal may be allowed—are subject to the general regula-
tions of the Judiciary Acts of 1789 and 1803, as construed by this
court. Castro v. United States, 46.

Hence, the allowance of the appeal, 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 appeal is allowed. Ib.

2. An appeal allowed or writ of error issued must be prosecuted to the
next succeeding term; otherwise it will become void. Ib.

3. The mere presence of the District Attorney of the United States in
court, at the time of the allowance of an appeal, at another term than
that of the decision appealed from, and without notice of the motion
or prayer for allowance, will not dispense with citation. Ib.

4. The general rule that in cases of appeal the transcript of the record
must be filed and the case docketed at the term next succeeding the
appeal, has however exceptions; and will not apply where the appei-
lant, without fault on his part, is prevented from seasonably obtaining
the transcript by the fraud of the other party, or by the ill-founded
order of the court below, or by the contumacy of its clerk. United
States v. Gomez, 752.

5. A proceeding in the District or Circuit Court of the United States
under the act of March 3d, 1851, for the ascertainment and settlement
of private land claims in the State of California, is in the nature of a
proceeding in equity. A decree of the Circuit Court in one of these
cases transferred to it is therefore subject to appeal to the Supreme
Court of the United States under the amendatory Judicial Act of
March 3d, 1803. United States v. Circuit Judges, 673.

6. The court reproves counsel who take appeals without any expectation
of reversal, and declares that if it had power to impose a penalty in
such cases, as it has when writs of error are sued out for delay merely,
it would impose it. The Douro, 564.

AVERAGE.

The liability of a cargo to contribute, in general average, in favor of the
ship, does not continue after the cargo has been completely separated
from the vessel, so as to leave no community of interest remaining.
McAndrews v. Thatcher, 347.

AVERAGE (continued).

This principle illustrated in the following case:

A ship was stranded near her port of destination, and the underwriters
upon her cargo sent an agent to assist the master in getting her off.
The master and agent made all proper efforts to do this, for two days;
when not succeeding at all, and the water increasing in the vessel,
they began to discharge the cargo in lighters, still making efforts to
save the ship. This discharge of the cargo occupied four days; by
which time the whole of it was taken off, and, with the exception of
a very small fraction in the lower hold and not discovered, taken to
the ship's agents, who subsequently delivered it to its consignees,
they giving the usual average bond. By the time that the cargo was
thus all got off, the vessel, not assisted by being lightened, was set-
tling in the sand, with the tide ebbing and flowing through her as
she lay. The agent considering her case hopeless, and the consignees
of the ship having refused to authorize him to incur any further ex-
pense, now went away.

On the next morning, and while the master was yet aboard, the under-
writers on the vessel sent their agent, who got to work to float the
vessel. Soon after the new agent came, the crew refused to do duty.
The agent got new hands, and the crew went away. They were soon
followed by the master, he leaving the vessel after the new agent had
been in charge of her for four days. After six weeks' labor, and an
expenditure of money somewhat exceeding her value when saved, the
new agent succeeded in floating and rescuing the ship. The remnants
of the cargo, in a damaged state, were delivered to its consignees.
On a suit by the owners of the ship against the consignees of the cargo,
for contribution in general average for the expenses incurred after
the master went away-

Held, that the case was not one for contribution; there having been, as
the court considered, no community of interest remaining between
the ship and cargo, after the master, in the circumstances of the case,
had left the ship. Ib.

BANKERS. See Internal Revenue, 1.

BANKS. See Internal Revenue, 3, 4, 5, 6, 7.

BILL OF LADING.

The prima facie legal effect of a bill of lading, as regards the consignee, is
to vest the ownership of the goods consigned by it in him. The Sally
Magee, 451.

BLOCKADE.

See Public Law, 1-10; Rebellion, 3, 4.

INTENT TO VIOLATE.

1. Presumption of an intent to run a blockade by a vessel bound appa-
rently to a lawful port, may be inferred from a combination of cir-
cumstances, as ex. gr. the suspicious character of the supercargo; the
suspicious character of the master, left unexplained, though the case

BLOCKADE (continued).

was open for further proof; the fact that the vessel, on her outward
voyage, was in the neighborhood of the blockaded place, and within
the line of the blockading vessels, by night, and that her return voy-
age was apparently timed so as to be there by night again; that the
vessel (though in a leaking condition, that condition having been
known to the master before he set sail), paid no attention to guns
fired to bring her to, but, on the contrary, crowded on more sail and
ran for the blockaded shore; and that one witness testified in prepara-
torio that the master, just before the capture, told him that he in-
tended to run the blockade from the first. The Cornelius, 214.

2. Although in such cases it is a possible thing that the intention of the
master may have been innocent, the court is under the necessity of
acting on the presumption which arises from such conduct, and of in-
ferring a criminal intent. Ib.

3. If a vessel is found without a proper license near a blockading squad-
ron under circumstances indicating intent to run the blockade, and
in such a position as that if not prevented she might pass the block-
ading force, she cannot thus, flagrante facto, set up as an excuse that
she was seeking the squadron with a view of getting an authority to
go on her desired voyage. Nor did anything in the language of the
President's proclamation of 19th April, 1861, vary this rule of public
law in regard to vessels which had actual notice of the blockade
established by the government of the United States at the beginning
of the Southern rebellion. The Admiral, 603; The Josephine, 83; The
Cheshire, 231.

1. Under a statute of California, which provides that new matter in an
answer shall on the trial be deemed controverted by the adverse
party, witnesses may properly be examined, in a case where such an
answer having new matter is put in. Cheang-Kee v. United States, 320.
2. In the Federal courts for the California Circuit (which have herein
adopted the practice prevailing in the State courts under the State
acts regulating proceedings in civil cases), not only may distinct par-
cels of land, if covered by one title, be included in one complaint or
declaration, but, with a demand for these, may be united a claim for
their rents and profits, or for damages for withholding them. Beard v.
Federy, 478.

Under this act, the provision as to the description by metes and bound
of the lands sued for, is directory, only. Ib.

8. Where it is doubtful whether a mandamus would be effectual to compel
the clerk to make a transcript of a record for the Supreme Court-as
where the proceedings had been such that the question as to pendency
of the appeal itself, could not well be determined without an inspec-
tion of the record—a resort to it is not obligatory. In such cases, if