Carriers. in their character, they resemble passengers, not packages of goods. It would seem reasonable, therefore, that the responsibility of the carrier should be measured by the law which is applicable to passengers, rather than by that which is applicable to the carriage of common goods. Boyce v. Anderson, 2 Peters, 155. 2. The law applicable to common carriers is one of great rigour. Though, to the extent to which it has been carried, in the cases to which it has been applied, its necessity and its policy are admitted, yet it ought not to be carried farther, or applied to new cases. It has not been applied to living men, and it ought not to be. Ibid. 3. The ancient rule of the law of carriers, that the carrier is liable only for ordinary neglect, does not apply to the conveyance of slaves. Ibid. 4. The owner of a vessel is answerable for the carelessness or unskilfulness of his master; and by the common law, nothing but the act of God, or of the enemy, or of the party complaining, can excuse. Dusar v. Murgatroyd, 1 Wash. C. C. R. 13. 5. The owner of a ship has no right, without necessity, to change the vehicle of conveyance of goods shipped on freight. Trott et al. v. Wood, 1 Gallis. C. C. R. 443. 6. A usage, to control this general principle, should be so uniform and general, that persons engaging in the trade may be considered as contracting with reference to it; otherwise, it ought not to affect the rights of the parties. Ibid. 7. A bailee, without reward, is guilty of gross negligence, if he omits that reasonable care of property committed to his charge, which persons in the like situation exercise, or which the bailee is accustomed to exercise in like cases. Tracy v. Wood, 3 Mason's C. C. R. 132. 8. Gross negligence is to be considered with reference to the nature of the goods delivered to the bailee without reward. If money is delivered, it is to be kept with more care than common property. Ibid. 9. In an action brought against a postmaster for negligence, in not safely transmitting a letter containing money, in the mail, and issue taken upon the neglect of the postmaster himself, it is not competent to give in evidence the neglect of his assistant. Dunlop v. Munroe, 7 Cranch, 269; 2 Cond. Rep. 484. 12. The proprietors of the steamboats between Providence and New York, are common carriers, and, as such, bound to receive all persons on board, to whose character and conduct there is no reasonable objection, if they have_suitable accommodations. Jencks v. Coleman, 2 Sumner's C. C. R. 221. 13. They may, rightfully, exclude all persons of bad character or habits, or whose objects are, in any way, to interfere with their interests, who refuse to obey the reasonable regulations which are made for the government of the steamboat; and they may rightfully inquire into the habits or motives of passengers who offer themselves. Ibid. 14. The plaintiff was the known agent of the Tremont line of stage-coaches. The proprietors of the steamboat Benjamin Franklin had, as he well knew, entered into a contract with the Citizens' Stage-Coach Company, to carry passengers between Boston and Providence, in connection with, and to meet the steamboats. The plaintiff had been in the habit of coming on board the steamboat at Providence and Newport, for the purpose of soliciting passengers for the Tremont line: Held, if the jury should be of opinion that the contract was reasonable and bona fide, and not entered into for the purpose of an oppressive monopoly, and that the exclusion of the plaintiff was a reasonable regulation, in order to carry this contract into effect, that the proprietors of the steamboat would be justified in refusing to take the plaintiff on board. Ibid. 15. In an action against the owner of a stagecoach used for carrying passengers, for an injury sustained by one of the passengers by the upsetting of the coach, the owner is not liable, unless the injury of which the plaintiff complains was occasioned by the negligence or want of proper skill or care in the driver of the carriage, in which he and his wife were passengers; and the facts that the carriage was upset, and the plaintiff's wife injured, are prima facie evidence that there was carelessness, or negligence, or want of skill upon the part of the driver; and throws upon the defendant the burden of proving that the accident was not occasioned by the driver's fault. Stokes v. Saltonstall, 13 Peters, 181. 16. It being admitted that the carriage was upset and the plaintiff's wife injured, it is incumbent on the defendant to prove that the dri 10. The distinction between the relation of a ver was a person of competent skill, of good postmaster to his sworn assistant acting under habits, and in every respect qualified, and suithim, and between master and servant generally, ably prepared for the business in which he was has long been settled: and though the latter re- engaged; and that he acted on this occasion lation might sanction the admission of such evi- with reasonable skill, and with the utmost prudence, if it is intended to charge a postmaster dence and caution; and if the disaster in quesfor the negligence of his assistants, the plead-tion was occasioned by the least negligence, or ings must be made up according to the case; and his liability then will only result from his own neglect, in not properly superintending the discharge of their duties in his office. Ibid. 11. In order to make a postmaster liable for negligence, it must appear that the loss or injury sustained by the plaintiff, was the consequence of the negligence. Ibid. want of skill or prudence on his part, then the defendant is liable in the action. Ibid. 17. If there was no want of proper skill, or care, or caution on the part of a driver of a stage-coach, and the stage was upset by the act of the plaintiff or his wife, in rashly and improperly springing from it, then the defendant is not liable to an action; but if the want of proper Cartel. Cases certified from the Circuit Courts. skill or care of the driver placed the passengers in a state of peril, and they had at that time a reasonable ground for supposing that the stage would upset, or that the driver was incapable of managing his horses, the plaintiff is entitled to recover; although the jury may believe, from the position in which the stage was placed by the negligence of the driver, the attempt of the plaintiff or his wife to escape may have increased the peril, or even caused the stage to upset; and although they may also find that the plaintiff and his wife would probably have sustained little or no injury had they remained in the stage. Ibid. 18. If the driver was a person of competent skill, and in every respect qualified and suitably prepared for the business in which he was engaged, and the accident was occasioned by no fault or want of skill or care on his part, or that of the defendant or his agents, but by physical disability arising from extreme and unusual cold, which rendered him incapable for the time to do his duty; then the owner of the stage is not liable in an action for damages, for an injury sustained by a person who was a passenger. Ibid. CARTEL. CASES CERTIFIED FROM THE CIRCUIT 2. Where the court is equally divided, the decree of the court below is of course affirmed, so far as the point of division goes. The Antelope, 10 Wheat. 66; 6 Cond. Rep. 30. 3. The supreme court has no jurisdiction in a case in which the judges of the circuit court have divided in opinion upon a motion for a rule to show cause why the taxation of the costs of the marshal on an execution should not be reversed and corrected. Bank of the United States v. Green and others, 6 Peters, 26. 4. Where the court is equally divided in opinion upon a writ of error, the judgment of the inferior court is affirmed. Etting v. The Bank of the United States, 11 Wheat. 59; 6 Cond. Rep. 216. opinion upon them; it will neither award a ve nire facias de novo, nor certify any opinion to the court below, but will merely certify that they are too imperfectly stated. Perkins v. Hart's Ex'rs., &c., 11 Wheat. 237; 6 Cond. Rep. 287. 6. It appeared on a certificate from the circuit court of the United States of Pennsylvania, that the judges of the court were divided on a motion in arrest of judgment. Held, that judgment must be given on the verdict. United States v. Worrall, 2 Dall. 338. 5. Where a case is certified to the supreme court upon a division of opinion of the judges of the circuit court, and the points upon which they were so divided are too imperfectly stated to The ship William Penn was fitted and re-enable the supreme court to pronounce any paired, at Jamaica, a British possession, during the war with England, as a cartel, and an hypothecation for money borrowed to repair her, and to enable her to perform the voyage. The holder of the bottomry proceeded against the ship, after her arrival at Philadelphia, for the recovery of the amount loaned; and the owners pleaded that the hypothecation was executed during war, and the libellants were alien enemies. By Mr. Justice Washington:-The flag of truce which a cartel carries, throws over her and those with whom contracts are made for her navigation, the mantle of peace. She is, pro hæc vice, a neutral licensed vessel, and all persons concerned in her navigation, upon the particular service on which both belligerents have employed her, are neutral in respect to both, and under the protection of both. She cannot carry on commerce under the protection of her flag, because this is not the business for which she is employed, and for which the immunities of that flag were granted to her. She is engaged in a special service, to carry prisoners from one place to another; and whilst so engaged, she is under the protection of both belligerents, in relation to every act, necessarily connected with that service. It follows, that all contracts made for equipping and fitting her for this service, are to be considered as contracts made between friends, and consequently ought to be enforced in the tribunals of either of the belligerents, having jurisdiction of the subject. The agreement of the two nations to make a cartel, amounts to a license by both to perform the service in which the vessel is employed, and sanctifies all the means necessary to that end. Crawford et al. v. The William Penn, Peters' C. C. R. 106. 7. Where a case is certified from a circuit court of the United States, the judges of the circuit court having differed in opinion upon questions of law which arose on the trial of the cause; the supreme court cannot be called upon to express an opinion on the whole facts of the case, instead of upon particular points of law, growing out of the same. Adams, Cunningham & Co. v. Jones, 12 Peters, 207. 8. The intention of congress in passing the act authorizing a division of opinion of the judges of the circuit courts of the United States to be certified to the supreme court was, that a division of the judges of the circuit court, upon a single and material point, in the progress of the cause, should be certified to the supreme court for its opinion, and not the whole cause. When a certificate of division brings up the whole cause, it would be, if the court should decide it, in effect, the exercise of original, rather than appellate jurisdiction. White v. Turk et al., 12 Pêters, 238. 9. This case came up to the supreme court, from the circuit court, upon a division of opinion between the judges of the court. It was decided Cases certified from the Circuit Courts. by the supreme court, that the question certified | court to entertain the cause?" The supreme would alone be considered; each party being court ordered it to be certified, that the circuit left to bring up the whole case from the circuit court had jurisdiction of the cause. Logan v. court by a writ of error. Ogle v. Lee, 2 Cranch, 33. Patrick, 5 Čranch, 288; 2 Cond. Rep. 259. 10. The question certified from the circuit court of North Carolina was, "whether the act of assembly (of North Carolina,) entitled, an act concerning proving wills, and to prevent frauds in the management of intestates' estates, passed in 1715, recited in the plea of the defendants, was, under all the circumstances stated, and the various acts passed by the legislature of North Carolina, a bar to this action." The certificate stated, that the 9th section of the act had been pleaded by the defendant, in bar to the action. The certificate of the division was granted on the motion of the plaintiff, by his counsel; and at his request, a statement of the facts, "made under the direction of the judges," was certified. The certificate, thus made out, set forth all the laws of North Carolina, which operated on the question certified, and stated the questions which arose in the cause, on which the opinions of the judges were divided. The court decided in favour of the plaintiff. Ogden, Adm'r. of Cornell, v. Blackledge, Ex'r. of Sater, 2 Cranch, 272; 1 Cond. Rep. 411. 11. Action in the circuit court of Massachusetts, for the penalty of two thousand dollars, imposed by the act of congress, prohibiting the slave-trade. The defendant pleaded the provisions of the 32d section of the crimes act of 1790, as a limitation of the time in which the action should be brought. "Upon the defence under this plea, the judges of the circuit court were divided in opinion; and the same was certified to the supreme court." Held, That the action was barred by the statute. Adams v. Woods, 2 Cranch, 336; 1 Cond. Rep. 408. 12. The certificate of division of opinion by the judges of the circuit court of Virginia stated, "In this cause it occurred as a question, whether Hepburn and Dundas, the plaintiffs in this cause, who are citizens and residents in the District of Columbia, and are so stated in the pleadings, can maintain an action in the supreme court against the defendant, who is a citizen and inhabitant of the district and the commonwealth of Virginia, and is also stated so to be in the pleadings: or whether, for want of jurisdiction, the said suit ought to be dismissed." It was certified that the circuit court had no jurisdiction in the case. Hepburn and Dundas v. Ellzey, 2 Cranch, 445; 1 Cond. Rep. 444. 13. This case was certified from the circuit court of Kentucky, the judges below having differed in opinion upon the question, whether the plaintiff, a citizen of the state of Kentucky, and so stated in the pleadings, could maintain the suit against the defendant, a citizen and inhabitant of Virginia, so stated in the pleadings, upon the case stated in the certificate; the subpœna, in a bill for an injunction, not having been served in Kentucky. "Can the circuit court entertain jurisdiction of the cause? If not, does the defendant's answering the bill, without insisting upon the objection, that the process was not served upon him in Kentucky, authorize the 14. This case was certified from the circuit court of Virginia, sitting in chancery, in which the opinions of the judges of the court were opposed on the question, "whether the act of assembly of Virginia, for the limitation of actions, pleaded by the defendant, was, under all the circumstances stated, a bar to the plaintiff's demand, founded on a promissory note given on the 21st day of August, 1773." The certificate contained a statement of the facts agreed to by the parties. The supreme court ordered it to be certified to the circuit court, "upon the question in this case referred to this court from the circuit court, that the treaty of peace with Great Britain prevented the bar of the statute: and the supreme court is also of opinion, that the agent merely for collecting debis mentioned and described in the said statement of facts, is not to be considered as a factor, within the said act of assembly, so as to bring the case within the proviso of the statute." By this, the court is not to be understood as giving an opinion on the construction of the note, as to the time of payment. Hopkirk v. Bell, 3 Cranch, 454; 1 Cond. Rep. 595. 15. In this case, the question certified was, whether copper bars, &c., were not subject to certain duties, under certain acts of congress, referred to in the certificate of division. It was certified they were exempt from the duties. United States v. Kid and Watson, 4 Cranch, 1; 2 Cond. Rep. 1. S. P., The United States v. Potts and others, 5 Cranch, 284; 2 Cond. Rep. 259. 16. In this case, the division of opinion of the judges of the circuit court of Pennsylvania was on questions arising on a case stated; and the questions, with the case as stated, were sent up to the supreme court. It was directed to be certified "to the circuit court of Pennsylvania, that in the case stated for the opinion of this court the plaintiff is entited to recover for a total loss." Rhinelander v. The Ins. Co. of Pennsylvania, 4 Cranch, 29; 2 Cond. Rep. 13. 17. This case was certified to the supreme court from the circuit court of the United States, for the district of Georgia; the opinion of the judges of that court being opposed, on a motion in arrest of judgment, upon a verdict of guilty. The record contained the indictment, and the reasons filed in arrest of judgment. The supreme court directed it to be certified to the circuit court, "that the judgment ought to be arrested, for the reasons assigned in the record." United States v. Zebulon Cantril, 4 Cranch, 167; 2 Cond. Rep. 69. 18. This case was certified from the circuit court of Pennsylvania, the judges being divided in opinion upon the question, "whether, in the state of the pleadings, the judgment ought to be rendered for the plaintiffs." The supreme court said: Judgment, therefore, on the pleadings, must be rendered for the plaintiffs. Mr. Chief Justice Marshall, who delivered the opinion of the court, said:"By the twenty-sixth sec:ion Cases certified from the Circuit Courts. of the judiciary act, it is directed that in cases Pawlet, to recover possession of the glebe lot, of this description the court shall render judg- as it was called, in that town, the judges were ment for so much as is due according to equity. opposed in opinion upon the question, "wheAnd when the sum for which judgment is to be ther judgment should be rendered for the plainrendered is uncertain, the same shall, if either tiffs or the defendant, upon a verdict found, of the parties request it, be assessed by a jury. subject to the opinion of the court, upon a case In this case, it is the opinion of a majority of the stated." The case stated was sent up in the court, that the judgment ought to be rendered record. It was certified to the circuit court, "on for so much as remains due of the sum of one the whole, the opinion of a majority of the court hundred and seventy thousand guilders, calcu- is, that upon the special statement of facts by lating interest thereon from the 1st of March, the parties, judgment ought to pass for the plain1803; and if either of the parties request it, that tiffs." The Town of Pawlet v. Daniel Clarke a jury be empannelled to ascertain the value of and others, 9 Cranch, 292; 3 Cond. Rep. 408. this sum in money of the United States." United States v. Gurney and others, 4 Cranch, 333; 2 Cond. Rep. 132. 19. This case was certified on division of opinion of the judges of the circuit court, on a motion in arrest of judgment, the question being whether the assignee of part of a patent-right cannot maintain an action on the case for a violation of the patent-right. 6 Cranch, 324. 25. This case was certified from the circuit court for the district of New York, in which the judges of that court were divided in opinion upon ten questions of law, arising out of a special verdict. The record stated the pleadings in an action of debt, brought by the United States against the defendant, late marshal of the United States, and his sureties; and set forth the condition of the bond. It contained the special ver20. This case was certified from the circuit dict, in which certain questions as to the law, on court for the District of Columbia; in which case, the facts found, were submitted to the court. upon the argument of a general demurrer to an The case was, on being first brought up, reindictment for a libel on the president and con-manded by the supreme court, on the ground gress of the United States, contained in the Con- that the questions on which the judges of the necticut Courant, of the 7th of May, 1806, charg-court were divided, were imperfectly stated. It ing them with having, in secret, voted two millions of dollars, as a present to Bonaparte, for leave to make a treaty with Spain; the judges of that court were divided in opinion, whether the circuit court of the United States had a com came back with a certificate, that "the opinions mon law jurisdiction in cases of libel. United 21. In this case, the question certified, on which the judges of the circuit were divided in opinion, was, whether a writ of habere facias possessionem should be issued; the defendant, in the circuit court of Maryland, having obtained, in a state court, an order for an injunction to stay the proceedings in the circuit court. The supreme court directed that the writ be issued. M'Kim v. Voorhies, 7 Cranch, 279; 2 Cond. Rep. 492. 22. The defendant was indicted in the circuit court of Vermont, under the embargo laws, for loading carriages with pearl-ashes, with intent to export them. The jury found him guilty; and that the ashes were worth two hundred and eighty dollars. The defendant moved in arrest of judgment, for defect in the finding; and on the question presented by the motion, the judges were divided in opinion; which division was certified to the supreme court. United States v. John Tyler, 7 Cranch, 285; 2 Cond. Rep. 492. 23. This case came up from the circuit court of Ohio, upon a certificate, stating that the judges of that court were divided in opinion upon the question, whether that court had power to issue a mandamus to the register of a land office in Ohio, commanding him to issue a final certificate of purchase to the plaintiff, for certain lands in that state. M'Intire v. Wood, 7 Cranch, 504; 2 Cond. Rep. 588. 24. This case was certified from the circuit court of the district of Vermont, in which, upon an action of ejectment brought by the town of VOL. I.-24 26. This case was certified from the circuit court of the United States, for the district of Vermont; the judges of the court being divided in opinion, as to the constitutionality of the act of congress, to prohibit trading with the enemy; the defendant being indicted and convicted on that statute, for attempting to transport "fat cattle, which were then and there munitions of war," from Vermont to Canada. A motion was made in arrest of judgment, because fat cattle were neither provisions nor munitions of war, within the meaning of the statute. On this motion, the judges were divided in opinion. It was directed to be certified, that fat cattle were munitions of war, within the meaning of the act. United States v. Job L. Barber, 9 Cranch, 243; 3 Cond. Rep. 405. 27. The question on which the judges of the circuit court divided in opinion, and which was certified to the supreme court, was, whether fat cattle are "munitions of war," and "driving them," transportation, under the act of congress, United States v. Sheldon, 2 Wheat. 119; 4 Cond. Rep. 62. 28. The question certified to the supreme court, from the circuit court of West Tennessee, was on the construction of the act of the legis lature of Tennessee, relative to possession of lands. Patton's Lessee v. Easton, i Wheat. 476; 3 Cond. Rep. 631. 29. The supreme court of the United States has no jurisdiction of causes brought before it, on a certificate of division of opinion of the Cases certified from the Circuit Courts. judges of the circuit court, for the District of Columbia. The appellate jurisdiction extends only to the final judgment and decrees of that court. Ross v. Triplett, 3 Wheat. 600; 4 Cond. Rep. 351. 30. An action of debt was brought in the circuit court of Rhode Island, on a bond, that I. S. should continue and be a true prisoner; and the defendants pleaded a discharge, under the law of the state, for the relief of poor debtors. The plaintiff replied, that I. S. did not remain a true prisoner, and that the discharge was fraudulently obtained; to which replication the defendants demurred. The judges of the circuit court were divided in opinion, on the sufficiency of the replication; and this division was certified to the The court ordered it to be certified, that the replication was insufficient to avoid the plea of the defendants. Ammidon v. Smith et al., 1 Wheat. 447; 3 Cond. Rep. 619. supreme court. New York were divided in opinion: 1. Whether, since the adoption of the constitution, the power to pass a bankrupt law is not exclusively in congress. 2. Whether the act of New York is a bankrupt act, within the meaning of the consttution of the United States. 3. Whether the act of New York, of 1811, impairs the obligation of contracts. 4. Whether the plea of the discharge, in bar, is a good plea. The judges of the circuit court were opposed in opinion; and on motion of the plaintiff's counsel, the questions were certified to the supreme court for their final decision. The court ordered it to be certified, that since the adoption of the constitution of the United States, a state has authority to pass a bankrupt law, provided the law does not impair the obligation of contracts, within the meaning of the constitution, and provided there be no act of congress in force to establish a uniform system of bankruptcy, conflicting with such law; and 31. The defendant was indicted for murder, that the act of New York, so far as it attempts in the circuit court of Massachusetts, under the to discharge the contract sued upon, is a law eighth section of the act of congress of 30th violating the obligation of contracts. Sturges v. April, 1790. The offence was committed on Crowninshield, 4 Wheat. 122; 4 Cond. Rep. 410. board a vessel of the United States, lying in the 35. The facts of the case being found by a harbour of Boston. The jury found the defend- special verdict, and the judges being divided in ant guilty; and upon the facts being stated, a opinion on questions arising on the verdict, the motion for a new trial was made; on the ques-questions were certified to the supreme court. tions arising on which motion, the judges of the Somerville's Ex'rs. v. Hamilton, 4 Wheat. 230; circuit court were divided in opinion. The ques-4 Cond. Rep. 436. tions were as to the jurisdiction of the court over the offence; and whether the state courts of Massachusetts had not jurisdiction of the offence. The supreme court directed it to be certified, that the circuit court had not jurisdiction of the offence. United States v. Bevans, 3 Wheat. 336; 4 Cond. Rep. 275. 32. In this case, it was certified to the supreme court that the judges of the circuit court of Virginia were opposed in opinion, whether the plaintiffs, the devisees under the will of Silas Hart, were capable of taking under the will. The will of Silas Hart, under which the question arose, was certified, with the question on which the circuit court was divided. The court directed it to be certified, that the devisees were incapable of taking. Trustees of the Philadelphia Baptist Association v. Hart's Ex'rs., 4 Wheat. 1; 4 Cond. Rep. 371. 33. The question referred to the supreme court, by a certificate of division between the judges of the circuit court, on facts stated by the court, was, whether the circuit court of Kentucky could take jurisdiction of a case, when one of the grants for the land in controversy was issued out by the state of Virginia, the other by the state of Kentucky, both grants being founded upon warrants and locations made under the laws of Virginia. Colson v. Lewis, 2 Wheat. 377; 4 Cond. Rep. 168. 34. An action was brought on two promissory notes, made in New York, on the 22d of March, 1811, against the maker. The defendant pleaded his discharge under the insolvent laws of New York, averring his compliance with the law, and a certificate of his discharge under the act of the 3d of April, 1811. Four questions arose in this case, on which the judges of the circuit curt of 36. The difference of opinion of the judges of the circuit court of Delaware, was, whether certain depositions taken under a commission issued from the circuit court of Delaware, could be read in evidence. This difference was certified to the supreme court, and the question decided. Sergeant's Lessee v. Biddle et al., 4 Wheat. 508; 4 Cond. Rep. 522. 37. On an indictment for manslaughter, the defendant was found guilty, subject to the opinion of the court, whether the circuit court of Pennsylvania had jurisdiction in a case where the offence was committed on board an American ship, lying in the river Tigris, off Whampoa, in the empire of China. On the question of jurisdiction the judges were divided in opinion, and the division was certified to the supreme court, and was decided in favour of the defendant. United States v. Wiltberger, 5 Wheat. 76; 4 Cond. Rep. 593. 38. The jury found a special verdict, in the circuit court of Virginia, on a trial of an indictment for piracy; and on a motion to arrest the judgment, the question, whether the act charged against the defendant, and found by the jury, was a piracy by the law of nations, so as to be punishable under the act of congress of the 3d of March, 1819, was presented, and the judges of the circuit court were divided in opinion; and thereupon, the question was certified to the supreme court. United States v. Smith, 5 Wheat. 153; 4 Cond. Rep. 619. 39. The prisoners were found guilty in the cir cuit court of Massachusetts, for murder on the high seas, out of the jurisdiction of a particular state. The counsel of the prisoners moved the court for a new trial, on the ground of the misdirection by the court on points of law which |