JANUARY 1848. ware, was in actual possession, and this controversy had begun. Besides, of what avail is such an act

of the Legislature, except as some evidence (under the circumstances just mentioned, very feeble, inThe Arbitrator, deed) of a belief of right, and keeping up of a claim opinion, January over her own territory. A constitutional act of a State

Mr. Sergeant's

15th 1848.

Conclusion.

Legislature, touching any part of such territory, is undoubtedly potent, and is notice to all the world; but as to territory of another State, it is inoperative, and it is notice to nobody. This act, therefore, is of no effect.

Upon all the grounds thus reviewed, the conclusion is, that the title to the Pea Patch island was in the State of Delaware. On May 27th 1813, that State, by an act of her Legislature, ceded it to the United States upon conditions having regard to the publick benefit, and not for any selfish interest of her own. No doubt can be entertained that New Jersey would, in the like case, have done as her sister Delaware did, had she been free to do so. But a private claim had intervened, which she had no rightful power to dispose of; and, if it has so happened that, after a long and costly litigation, that claim has proved to be unfounded, it is to be regretted that the claimant should have been put to useless expense and trouble; but this feeling can have no influence in determining the question of right.

By the cession of Delaware the title passed to the United States. The award, therefore, must be, and is, that the title is in the United States.

APPENDIX.

PEA PATCH ISLAND.

clxi

JANUARY 1848.

Award.

Under and by virtue of the foregoing agreement and submission, having heard the parties by their counsel, their proofs and allegations, and duly and deliberately considered the whole matter, and weighed the evidence and arguments on both sides, I do hereby award that the title to the Pea Patch island is in the United States.

In witness whereof, I have hereunto set my hand and seal, this fifteenth day of January, in the year of our Lord one thousand eight hundred and fortyeight, at the City of Washington.

Witness:

JOHN SERGEANT. [SEAL.]

JOHN WM. WALLACE, (Secretary of the Reference.)
JOHN M. CLAYTON, (Senator from Delaware.)
WILLIAM L. DAYTON, (Senator from New Jersey.)

[FINIS.]

INDE X.

ADMIRALTY.

.......

...

1. Where the larger portion of a voyage is upon tide-water, the jurisdiction of the
admiralty is not ousted by the fact that the residue (the terminations, each way,
of the voyage) is upon water of a different character; as, for example, on a canal.
The Robert Morris.
2. The Admiralty jurisdiction of the courts of the United States extends to petitory
suits as well as to those merely possessory; that is to say, it may pass upon the
disputed title of ships as well as upon the simple right of possession to them.
(So said though not adjudged.) Taylor v. The Royal Saxon...

3. A sale of a vessel by order of a court of Pennsylvania under the Foreign Attach-
ment law of that State, does not divest a lien in the Admiralty for seamen's
wages. (So said though not adjudged)

4. The pendency of a replevin in a State court to settle the right of property in a
vessel, is a bar to a libel in the Admiralty to settle the same right between the
same persons; not technically a bar as a plea of lis pendens, but effectively so,
to prevent a conflict of jurisdiction.

5. When an Admiralty case comes into this court on an appeal from the District
Court, either side-by the practice of the third Circuit-is at liberty to take new
evidence. But generally speaking, where the decree of the District Court is re-
versed, because it is given on a different state of facts from that presented to this
court, the party succeeding here does not have costs. Carrigan v. The

Charles Pitman......

6. No lien exists in the Admiralty for services performed by a stevedore in loading
and storing the ship's cargo. M Dermott v. The S. G. Owens.

.....

7. The District Court of the United States has power to enforce the lien on domes
tick vessels under the Pennsylvania statute of June 13th, 1836, which, though
providing, almost entirely, for a process of enforcement through the State courts,
does yet not exclude, but in one section, contemplates the action of the Federal
Weaver v. The S. G. Owens.

court.

AMENDMENT.

An appellee in Admiralty may amend in this court the libel he has filed in the District
Court, so as to make a claim here for damages above costs, caused by a vexatious
appeal. Weaver v. Thomson....

AVERAGE.

A removal in a port of necessity, for the purpose of repairs of perishable fruit, which
increased an incipient decay, and precipitated an entire loss of the fruit, is not a
matter for general average. Bond v. The Superb. .
Z z

Page.

32

311

ib.

ib.

306

370

359

343

355

An appellee in Admiralty may amend in this court, the libel he had filed in the court
below, so as to make a claim here for damages, above costs, caused by a vexatious
appeal. Weaver v. Thompson.......

APPEALS FROM THE ADMIRALTY.

1. When an Admiralty case comes into this court on an appeal from the District Court,
either side-by the practice of the third Circuit-is at liberty to take new evi-
dence. But generally speaking, where the decree of the District Court is re-
versed, because it was given on a different state of facts from that presented to
this court, the party succeeding here does not have costs. Carrigan v. The

Charles Pittman..

2. An appellee in Admiralty may amend in this court the libel he has filed in the
District Court, so as to make a claim here for damages above costs, caused by
a vexatious appeal. Weaver v. Thompson.

AUDITORS' FEES.

The compensation of Auditors is regulated not only by the labour which they have,
but also by the amount of money to be distributed. Lombard v. Bayard...................
BOUNDARY.

The territory of the State of Delaware within the twelve miles circle, extends across
the Delaware river, to low water mark on the Jersey shore. The Pea Patch Island
case. Appendix..

CASES OVERRULED, DENIED OR DOUBTED.

1. Bannert v. Day, (3 Washington's Circ. Ct. Rep. p 243) doubted in the matter
of Hall's Depositions, p. 85, 88, &c.

2. Blight's Executor v. Fiske & Ashley, (Peters' Circuit Court Reports, 41) over-
ruled in Parker v. Hotchkiss, p. 269, &c.

3. Boston Manufacturing Company v. Fisher, (2 Mason 119) denied in Stimpson
v. The Rail Roads, p. 164, 166, 271, &c.

4. Boudereau v. Montgomery, (4 Washington's Cir Ct Rep. 186) doubted in the
matter of Hall's Depositions, p. 85, 88, &c.

5. Certain Logs of Mahogany, (2 Sumner, 589) denied as to part of the argument

in it, in Taylor v. The Royal Saxon, p. 310, 335.

343

307

343

196

6. De Lorio v. Boit, (2 Gallison, 398) doubted in Taylor v. The Royal Saxon, p. 310, 323

7. Geyer's Lessee v. Irwin, (4 Dallas, 107) denied in Nones v. Edsall, M. C. p. 189, 191

8 United States v. Cushman, (2 Sumner, 426) denied in United States ▾ Archer's
Executors, 173, 183, &c.

9. United States v. Gilbert, (2 Sumner, 19) denied in United States v. Harding, 127, 142

CAPTAIN'S WAGES.

A sea captain having heen employed on ship board in an Eastern country in a service
not strictly within his ordinary office, and not originally, in any way contemplated,
was regarded as not being a mere agent of the ship-owner; and was accordingly
allowed to receive compensation on his own account, from the parties with whom
he dealt; the compensation, though large, appearing to be somewhat in the nature
of a present. Wilcox v. Phillips' Executors......

CHALLENGES.

47

No Peremptory Challenges are allowed in this Court to either side where the jury has
been already struck on both sides. Blanchard v. Brown....

309

CONFLICT OF JURISDICTION.

The pendency of a replevin in a State court to settle the right of property in a vessel,