128 U.S. 132

9 S.Ct. 40

32 L.Ed. 369


October 29, 1888.

W. A. Hammond and B. Howard Haman, for the motion.

W. A. Fisher and Thos. C. Chappell, in pro. per. contra.



Bradshaw recovered judgment December 6, 1887, against Chappell in the circuit court for Howard county, Md., in an action of trespass on the case, after a trial by jury upon a plea of not guilty, for damages by fire to his (Bradshaw's) schooner, alleged to have resulted from the negligence of Chappell's servants in cutting a burning scow or lighter loose from Chappell's wharf, and allowing it to drift against Bradshaw's vessel. From this judgment Chappell prosecuted an appeal to the court of appeals of Maryland, by which tribunal the judgment was affirmed on the 14th day of March, 1888. On the 27th of March Chappell moved for a rehearing, upon the ground, which had not been up to that time presented in any form, that the circuit court for Howard county should have limited the measure of damages to the value of the scow which occasioned the injury complained of, under the provisions of section 18, c. 121, act Cong. June 26, 1884, (23 St. at Large, 57.) The court of appeals overruled the motion, because, as the court states, 'this act of congress was not before the circuit court when the case was tried, nor before this court on appeal, and that no reference to it or construction of it was made in either court.' After an unsuccessful application therefor to the chief judge of the court of appeals, a writ of error was finally allowed by one of the justices of this court, and now comes before us upon a motion to dismiss.


To give this court jurisdiction to review the judgment of a state court under section 709 of the Revised Statutes, because of the denial by a state court of any title, right, privilege, or immunity claimed under the constitution or any treaty or statute of the United States, it must appear on the record that such title, right, privilege, or immunity was 'specially set up or claimed,' at the proper time, in the proper way. 'To be reviewable here,' says WAITE, C. J., in Spies v. Illinois, 123 U. S. 181, 8 Sup. Ct. Rep. 21, 22, 'the decision must be against the right so set up or claimed. As the supreme court of the state was reviewing the decision of the trial court, it must appear that the claim was made in that court, because the supreme court was only authorized to review the judgment for errors committed there, and we can do no more.' Tested by this wellsettled rule it is apparent that this writ of error cannot be maintained, as it is conceded that the plaintiff in error did not set up or claim in the trial court the limitation, the benefit of which he now insists should have been accorded him.


As to the contention of plaintiff in error—also not brought forward below, but suggested for the first time when application was made to the chief judge of the court of appeals to allow the writ of error—that the state court had no jurisdiction, because the jurisdiction of the courts of the United States is exclusive in all cases of admiralty and maritime jurisdiction, and that this is necessarily such a case, it is sufficient to say that, as the action as brought and defended was a common-law action, without any of the ingredients of an admiralty or maritime cause, it was, as such, clearly within the provision of the ninth section of the judiciary act of 1789, as embodied in section 563 of the Revised Statutes, 'saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it.' The motion must be granted, and the writ dismissed, and it is so ordered.

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