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express contract of insurance is not; but if it is so held, then the question arises as to what the court decided in Cutler v. Rae, and whether that decision is now of authority.

On examining the opinion, it is plain that the general jurisdiction over averages was not even considered. The points raised and discussed, and authorities referred to in the argument submitted in favor of the jurisdiction,' are not alluded to.

The only point decided is, that the maritime law does not imply a promise from the owner of goods liable to a contribution to pay his proportion ; a necessary inference being, that if the owner had expressly promised to pay, an action would be sustained, as it was not denied that a suit in rem would be within the jurisdiction.

The general jurisdiction over averages was not considered, and this decision can have no bearing where the suit is on an express contract, as on a policy of insurance, and so Cutler v. Rae affords no ground of objection. But supposing it did, the question remains, - to what respect is that decision entitled ?

The point decided, as already stated, is, that where goods liable to contribution are delivered to the owner, he cannot be sued in the admiralty, not because the matter is not of a maritime nature, but because the promise to pay is implied; or, in other words, that if goods subject to a maritime lien are delivered, not only the lien is lost, but there is no remedy in the admiralty in personam to recover the debt.

To state this proposition is enough to refute it. It contradicts the rule that the jurisdiction depends upon the subject matter, not upon whether the action is in rem or in personam. It asserts that the court cannot entertain a suit founded upon a subject peculiarly within its jurisdiction, unless the obligation of the defendant rests upon an express promise. According to it, if a ship-owner delivers goods to a consignee, or a salvor to an owner, without taking an express promise to pay freight or salvage, there is no relief to be had in a court of admiralty; for the maritime law, which gives the lien, does not imply a promise to pay if the lien is waived. An action might be maintained on a charter-party, because it contains a promise to pay, but not against a consignee for goods accepted, because his agreement to pay freight is implied.

I See 8 How. App.

From the dissenting opinion of Mr. Justice Wayne, and his statement in the Appendix to 8 Howard, it appears that the case was not thoroughly considered ; that the printed argument in favor of the jurisdietion was not before all of the court, and was not alluded to in conference; that the decision was made by a divided court, Mr. Justice Catron not giving an opinion because he was “not satisfied either way; " " that the remaining eight judges were at first equally divided, and that it was finally disposed of rather from acquiescence in what was thought to be English authority against the jurisdiction, than from a close and searching scrutiny into the practice and jurisdiction of courts of admiralty.”

If the argument in favor of the jurisdiction had been read, the court would have learned that the English admiralty, on whose supposed practice the decision was based, had, in several cases, entertained jurisdiction over averages.

As might be expected, this decision has not been very respectfully considered by the profession. Mr. Justice Wayne said, if the case were presented in his circuit, he should consider the question open and hear an argument.2

In Dike v. The St. Joseph, Mr. Justice McLean says, “ The decision in the case of Cutler v. Rae was by a divided court, and it has not been satisfactory to the profession; nor was it a decision in accordance with the prior decisions of the Supreme Court.”

It has been supposed that this decision excluded all claims for average, whether in rem or in personam, from the jurisdiction ; 4 but in Dupont de Nemours v. Vance, it was decided that a suit in rem might be entertained. This virtually overrules Cutler v. Rae, because of the axiom that the jurisdiction does not depend upon the form of action, but upon the subject-matter.

In a suit to recover a general average, whether in rem or in personam, the subject matter is the liability of the res, or its owner, to pay a marine contribution. If either is a matter of admiralty jurisdiction, both must be.

The final blow to the authority of Cutler v. Rae was given by Mr. Chief Justice Taney, who delivered the opinion in that case, in a dissenting opinion given in Taylor v. Carryl.7 In this able

I See 8 How. 624.
3 6 McLean, 663.
5 19 How. 162.
7 20 How. 583.

2 7 How. 734.
4 See The Mazurka, 2 Curtis, 72.
6 6 How. 392.

VOL. III.

44

opinion, he admits that the extent of the admiralty jurisdiction is correctly stated in the note to 1 Kent's Com. 370, except in one respect; and among the subjects there mentioned, are a averages, contributions, and jettisons,” without reference to the form of action.

The elementary writers treat this decision with as little respect as the Justices of the Supreme Court. See 1 Parsons on Maritime Law, 1st ed. page 334, and vol. 2d, note to page 511; Benedict Adm. Jr. 111, 167, and note; note to 1 Kent, 370. And, as has been shown, suits to recover averages, both in rem and in personam, were entertained by the Vice-Admiralty Court before the Revolution.

The case of Cutler v. Rae must be considered as overruled and of no authority, and would afford no reason for denying the jurisdiction of the admiralty over contracts of marine insurance, if they were identical with averages.

There is, then, no authority against the exercise of jurisdiction over insurances entitled to consideration to be found in the books, and certainly none in the practice of the courts, so far as they have been resorted to. In every reported case, the jurisdiction has been maintained.

The Constitution and the Judiciary Act declare and provide that the jurisdiction of the courts of the United States shall extend to all admiralty and maritime cases: the Supreme Court has decided that these words are to be construed literally, and not by the practical jurisdiction of the English admiralty; the records of the colonial admiralty courts show that they exercised the largest jurisdiction over maritime contracts and cases.

If, then, marine insurance is a maritime contract, it is a proper subject of admiralty jurisdiction ; and as to that “all jurists and civilians agree that in this appellation are included, among other things, .. contracts and quasi contracts respecting averages, contributions, and jettisons, and policies of insurance.”]

1 The case of Rae v. Cutler is a singular instance of what is sometimes called the uncertainty of the law. Rae owned a ship, which was voluntarily stranded and totally lost. He filed a libel against an owner of the cargo for a contribution. The respondent denied his liability, on the ground that the vessel was lost. The case was heard in the District Court on the merits, and a decree rendered for the libellant, which was afffrmed in the Circuit Court, and an appeal taken to the Supreme Court. The case was argued on the merits by Mr. F. C. Loring, for the libellant, and Messrs.

Fletcher and Curtis, for the respondents. The court then ordered an argument on the jurisdiction. One in support of it was submitted by Mr. Loring. The counsel for the respondents declined to submit one against it. Afterwards, a decree was entered dismissing the case for want of jurisdiction. Rae then brought a suit at law in the Supreme Court of Massachusetts, and the case was argued on the merits before the full court. No opinion was given, but judgment was rendered for the defendants, as was understood at the time, on the ground that the total loss of the ship prevented a claim for contribution. Lately, the same court has decided that it does not; 4 Allen 192. Thus Mr. Rae lost his case in two courts, each of which has reversed the grounds of the decision it made against him.

DIGEST OF THE ENGLISH LAW REPORTS FOR NOVEM

BER AND DECEMBER, 1868, AND JANUARY, FEBRUARY, MARCH, AND APRIL, 1869.

ACTION. The plaintiff, in common with other inhabitants of a district, enjoyed a customary right to have water from a certain spout. The defendant, being the owner of the land through which came the stream supplying the spout, on various occasions prevented sufficient water reaching the spout to supply the inhabitants. The plaintiff, however, had never suffered any actual inconvenience. Held, nevertheless, that the plaintiff could maintain an action for diverting the water, on the ground that the defendant's acts might furnish evidence in derogation of his rights. Harrop v. Hirst, Law Rep. 4 Ex. 43.

See BILL OF LADING; MONEY HAD AND RECEIVED. ADMINISTRATION. See CONFLICT OF Laws; EXECUTOR AND ADMINISTRATOR,

2; NULLITY OF MARRIAGE; PRINCIPAL AND SURETY, 1; Trust, 1; WILL, 5.

ADMIRALTY. 1. An American citizen, serving on board a British ship, killed another American citizen serving on board the same ship, the ship being at the time in the river Garonne, within French territory, at a place below bridges, where the tide ebbed and flowed, and great ships went. Held, that the offence was cognizable in the Admiralty. — The Queen v. Anderson, Law Rep. 1 C. C. 161.

2. In a suit to recover damages by the executor of a person killed by a collision ; Hed, though with doubt, that the Court of Admiralty had jurisdiction under Lord Campbell's Act, and the Admiralty Act, 1861, $7.- The Guldfare, Law Rep. 2 Adm. & Ecc. 325.

See BILL OF LADING; BOTTOMRY BOND; COLLISION, 1, 3-5; FREIGHT, 1; INTERROGATORIES, 2; SHIP, 2-4.

ADULTERY. - See DIVORCE, 24; INJUNCTION, 5.
ADVANCEMENT. - See HUSBAND AND WIFE, 4.
AGENT. — See PRINCIPAL AND AGENT.

AGREEMENT. - See CONTRACT.
ALIEN. - See COPYRIGHT, 1.

ALIMONY. 1. Alimony pendente lite was allotted on the average annual earnings of a husband, a master mariner, though at the time of his answering the petition for alimony he was temporarily out of employment. — Thompson v. Thompson, Law Rep. 1 P. & D. 553.

2. Where husband and wife have been living apart for many years, and the

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