-eralhistory of which was well known to the metallurgists of that viciriity. and to the defendant. It was to search for, dig, mine, and carry away -oreSj and was to pay a royalty per ton for concentrating ores mined upon the premises, a ,different royalty for concentrating ores brought from other -estates, and a royalty of $1.50,per ton upon ores mined upon the premises; .but, in case the royalty according to the rates fell below $1,000 in any year, then such a sum should be paid as to make the rent for the year aIDount to $1,000. The whole CaS! shows that it was to pay for the ,specified term at' least $1,000 per annum for the rights or privileges of taking this abandoned mine or property and making a new experiment with it. The motiveforthe contract was the hope of benefit which might arise to the defendant from the vehture. The consideration for the ondertakingto pay at leastthesutn of $1,000 annually, was the use of a mining property and works of large cost and of doubtful value, but which lUightbecome of profit, and it received what it contracted for. ,,7. ;The jury, by their verdict; correotly construed the nature of the representations which Mr. Bamford made. '.The motion for a new trial is denied.
CONSTiTUTIONAL LAW-LAWS REGULATING VESSELs-MARYL,\ND LAW REGULATING O'iBTER TRADE. .
.The Maryland act of 1884; c. '018, prohibits any person from using a vessel for buying, carrying. or o,fllters over the navigable waters of .C:hesf!.peake bay unless he first obtam a llCens.e from the state therefor, condItIOned· upon a ptevious 12'months residence hi the state. and·the payment of a tonn.age tax·. 'Held unconstitution.aI, in so far fiS i.ti.nter.fe.res with the. right. to carryon such business in licensed and enrolledvesse\s of the United States, and because it requires'a payment of tonnage tax without the consent of congressl ' . .
On Petition for Writ of Haheaa The state of Maryla'nd,' by its act of 1884, c. 518, prohibited any person from using a vessel for carrying, buying, or selling oysters over the navigable waters oUhe Chesapeake bay without first having obtained a license so to do, and further prohibited any person from obtaining such license unless he had. been a resident and oitizen of the state for 12 Mnsecutivemonths preceding his application for such license, and also until he paid into the state treasury the sum of three dollars per ton for every ton such vessel might measure. Under the provisions of this law the petitionel', George H. Insley, was arrested on the. navigable waters of, the Chesapeake bay, within the state· of Maryland; .by the officers of the state fishery police force, on the charge of carrying, buying, and selling oysters on the navigable. waters of the Chesapeake bay without first having obtained a license so to do, as required by saidstatutei and was commit-
ted to the jail of Anne Arundel county. Insley, therefore, filed his petition for a habea8 corp:us in the circuit court of the United States for the district of Maryland, which petition set out the above-recited facts, and that his vessel Wllsa licensed and enrolled vessel of the United States, and alleged that he was deprived of his liberty, contrary to the laws and constitution of the United States, and prayed that he be discharged from the custody of the sheriff of Anne Arundel county, by whom he was detained, and to whom he prayed that the writ of habeas corpus issue, directing said sheriff to produce said petitioner before said court. .The circuit courh)rdered the writ to issue, and directed the clerk of the court to send a copy of the order by mail to the Hon. Charles B. Roberts, attorney general of Maryland ,notifying him 'Of the petition, and of the time and. placeofthe hearing of the return to the writ. On the retUrn of the writ the sheriff produced the body of the prisoner, and, by direction of the attorney general of Maryland, set out in his return the warrant of a'rrestitnd commitment of the justice of the peace, by virtue of which he claimed to hold the petitioner. To this return the petitionel' demurred, and the case was'heard:on the petition,'return, and demurrer. Atty. Gen. Roberta, in ,behalf of the state of Maryland,and for the sherifi' of Anne Arl.mdel county, argued. That Insley was a citizen of Maryland, subject to her 'laws, and was held in cllstody by her officers for violation of them, and that therefore all questions arising under them must be determined by Maryland jUdges in Maryland courts., Bradley T. Johnson and Bradley S. Johnson, for the petitioner, arguedThat the act of· assembly of Maryland was contrary to the constitution of the United States and void, and that the petitioner, being deprived of; his liberty contrary tq.the constitution of thf' United States, under color of this law, was entitled to the protection of the federal courts in his federal rights. Ex pa1'te McCardle., 6 326; Exparte Grijftn, Chase, 395; Ex pa1'te Turn61', Id. 158; Ex parte McCready, 1.Hughes, (U. S.) 600; Ex parte Thornton, 4 Hughes, ('IT. S.) 220; In re Wat,Yon, 15 Fed. Rep. 511, note and authorities 514; Expa1·teTatem, 1 Hughes, (U. S.) 590; Ex parte Engle, Id. 592; Ex parte McKean, 3 Hughes, (U.S.) 25; Ex parte Rowland, 1'04 U. S. 604; Eat pm'te Yarb1'ough; 110 U. S. 651,4 Sup. Ct. Rep. 152; U. S. v. Spink, 19 Fed. 631; I'll, .re lJrosnahan; 18 Fed. Rep. 62; In re Davi$, 21 Fed. Rep. 396; Liceu:S6 Laundry CaiJes, 22 Fed. Rep. 701, DEADY, J.; Ex parte Vil'uinia, WOU. S. 339; Vif!1inia v, Rives, Id. 313; Ex parteSiebold,Id. 371; Ex parte Clarke, Id. 399; Ex pa1'te Reed, !d. 13; Ex pm'te Crouch, 112 U; S. 178, 5 Sup. Ct.. Rep. 96; Chew Heong v.. U.S., 112 U. S. 536, 5 Sup. Ct. Rep. 255. The Maryland law is void because it deprives the citizens of otheratatesof equal rights with residents of Maryland in the business of carrying, buying, and selling oysters over and on the navigable waters of the United States, (WaTd v. Ma1'yland, 12 Wall. 430; Parham, 8 Wall. 123; Welton v. .z/,lis8ou1"l, 91 U. S. 282; Webber v. Virginia, 103 U. S. 344a,' In r8 Watson, 15 Fed. Rep. 511;) because it deprives the petitioner of his federal right to use the navigable waters of the United States, (Slaughter-House Cases, 16 Wall. 79; The Daniel Ball, 10 Wall. 563; Miller v. Mayor of New York, 109 U. S. ::185,3 Sup. Ct. Rep. 228; Corfield v. Coryell, 4 Wash. C. C.379; Gilman v. Philadelphia, 3 Wall. 713; Porn. Canst. Law, 2d. Ed. 1880, 532; Crandall v. Nevada, 6 Wall. 35.) The act is void, for it is a regulation of commerce which, by article 1, § 8, Const. U. S., is committed exclusivelyro.
.. qon,gressi ,Gibbons v. Ogden, 9 Wheat. 1; Co. v. Husen, 95 U. S. 465; 1'ele/1raph Co. v. Telegraph 00;, 96 U. 8. 1; Sherlock v. .Alling, 93 U. S. 99:Sinnot v. Davenport, How. 241; Tax Cases, 12 Wall. 2;,>,5; Hall v. De CUir, 95U:S. 487. The act is void becanseit isa tax on tonnage, this vessel havIng· been a licensed' and 'enrolled vessel of the United States. Rev· St. U. S. 243: Tax Oases, 12 Wall. 213; .Coorey,Tll;'l; 0,: .61, and C8S!lS. " . . '
'Jt ,appeai-s the court that GeorgeH. is the master of. the United States, enrolled and licensed , of the Th()mas Ellis,a under the laws oftheUnited Sta.tes, for the coasting trade, and that he is held in KlW'ltody by, tp.e sl;1erif ·of .Anne Arundel county by virtue of a of Maryland, inaI)d for that county, commitment by a justice of for carrying oysters in his vessl¥ over the navigable waters of the United within the territorial limits of the state of States in the Chesapeake ,M!lrylanQ,withQu,t having obtained a license froIIl the state to carry oysters,. as: reqp,il'ed by, the .act of'the general assembly of MarylanQ, passed ants. session of, Jaollary, 1884,G. 518, And it further ,appears that said ifJ,ct of assexpply 'requires the petitioner, before he oancarry oysters'inhisV;essel,enrql,leq and ,licensed .by the,United States as'aforeof Maryland so to do, and'to said, to procure a license from pay thesuIp of three dollar$ llef ;.ton· on the measurement of. his vessel for his license. . ' .. It is therefore 'adjudged,that :the act of the general assambly of Maryland is contrary to the constitution of the United States, and is ther&fore void, in so far as !it interferes with the right of the petitioner to carry oysters in a licensed and enrolled \"essel of the United States, and because it, reqUiresthe petitioner to pay a tonnage taxon his vessel, without It is and decreed, by the'circuitcourt' of the for the district of Maryland, that the petiHoneds deprived ofbis]ibElrty, and is in custody of the sheriff of Anne Arundel cO).l.nty ,lnvlolaiipn of the constitution ,of the United States. ,i,The laws oftheUnited States having made it the duty of this . court toexienll the priviiege, oftbe writ of habeascoTpWJ to all persons .in custody of tb:e'!ltws, 'constitlltion, arid treaties of the United :Stll.tes, and to di$charge S\ll:lli'Pe):sonsfrom cU$tody,' it is, therefore, this "twenty-eighth day orAp'ril, A; b. 1885, ordered. adjudged, and decreed .bytbecol,ll't that the said George H. Insley be, and.is hereby, discharged from the .custody of the sheriff of Anne Arundel county upon the charge aforeBllid. .
THE CITY OIl' NtwORLEANS.
THE CITY OF NElW ORLEANS. 1 WALKER
'11. 'fHE CITY OF NElW ORLEANS.
(Oircuit Oourt,E. D. Lotd8iana. January 16, lSSS.)
SEAMEN-EMPLOYMENT OF DEOKHANDS-RoUND TltIp-DISCONTJNUANOE.
Some roustabouts shipped for the round trip from Cairo to New Orleans and batk. When the boat arrived at New Orleans, the voyage 'was broken up by the direction of the owner, on account of ice in the river above Cairo. The river lI'as free below Cairo. and there was no reason, beyond the will of the owner, why the voyage was not cOlnpleted. Held. that on their discPw:ge, under these circumstances, the libelants were entitled to be paid their wages for the voyage or round trip, and for their necessary expenses in returning home.
RoUND TRIP -D!SCONTINUANOD -
S, SA.lUll ·,..,. EMPLOYMENT OF, DJj:CKHAND!' .
WAIVER OF CLAIM FOR
W AGlllS. ,. . The .owner paid the wag-esof the roustabouts to date ofclischarge, and ten,dered each a ticket back to Cairo, or cash ill lieu thereof. Held, that the aecep,tanceon the part of .libelants of. wages up to date of. discharge. and of tickets. or money in lieu of passage, did not bar them from claiming the balmoney which was their due. . ance of wages or
In. a .suit in admiX:alty, the case presented was one in which the proof and the allegations did not correspond. Damages on one cause of action were alleged, and the right to damages on a.nother was proved. Held, tbat in admiralty proceedings parties were permitted tointroducEf'new allegations and new and tha.t to do justice CRse, the' libelants must amend.
8. ADMIRALTY-PRACTICE-PLEADING AND PROOF-AMENDMlCNT.
John D. Grace, for libelants.
F. D. King, for claimant.
PARDEE, J. In the month of December, 1886, the libelants, Tom Walker,. Dick Norris, Tom Young, Louis Barlow, and Albert Lee, at Cairo, Illinois, shipped on board the City of New' Orleans, as roustabouts, 'for a round trip to New Orleans !1nd back to Cairo; wages. to be $30 per, montn. The voyage to New Qrhianswas Imide in about nine and Ii. half days, and during the same the libelants performed their ra. spectiveduties, to the satisfaction of the boat's officers. On the arrival at New Orleans, the was broken up by the direction of tpe owner, the boat was laid up,and the crew, including libelants, discharged. The voynge was broken up by direction of owner on account of ice in the river above'Cairo; but the river was fre'¢ below Cairo, and there was no reason beyond the will oftlieowner why the voyage for which libelants shipped waS' not n.'Jade. , On'their discharge, under these circumstances. the libelants wereentitled to be paid their wages for orround trip fot which theyengaged ,and fortheirnecessary ex penses in returning home. See Fland. Mar; Law,§ 492; Curt. Merch.. Seam. 295; Desty, Adm. § 162, and cases cited; The libelants were paid their wages up to the ai'rival in New Orleans and discharge, and Tom Walker and Dick Norris were given! it ticket fot deck on the Paris C. Brown, not inciuding meals; and Tom Young and Louis Barlow were given two dol, , .
by Charles B. Stafford, Esq., of the New Orleans bar.