other demands whatsoever," and especially payments that are or will be due on his contract for building the "Etlah; "gives "them full power in and about the premises to have, use, and take all lawful ways and means in his name for the purposes aforesaid, and to make such acquittances, or other sufficient discharges, for me and in my name, and generally to do all other acts necessary and lawful to be done in and about the premises."

We are of opinion that this authorized Gilman, Son & Co. to accept payment of a voucher which declared on its face that it was the last, the full payment for the extra work done on the vessel, and thereby bind their principal to such acceptance.

But if we could be mistaken in this, the reasonable presumption is that Gilman, Son & Co. had nothing to do with obtaining this voucher from the Navy Department, but that it was so obtained by McCord himself, and forwarded by him to Gilman, Son & Co. for collection of the paymaster at New York. This is quite consistent with the fact that they were mere bankers. It is certainly fair to suppose that McCord presented his own statement of the account to the navy officers, and the final approval of the chief of the bureau of construction at Washington is dated April 26, 1866. The payment as indorsed on that same voucher by the paymaster at New York to Gilman, Son & Co. is dated May 11, 1866, which is just about a reasonable time for the voucher to have been received from Washington by McCord at St. Louis, and by him forwarded to Gilman, Son & Co. at New York for collection. If this be the true history of the voucher, McCord is bound by his own actions; for the voucher, while in his hands, had on its face the clearest statement that the sum therein allowed was "the full and final payment on all extras, and in full for all claims and demands for that work," and if he forwarded it in this shape to his bankers to get the money on it, without protest, he must be bound by that statement in the voucher.

The Court of Claims finds that the delay in completing the vessel was caused by the changes ordered by the United States, and that, owing to the rise in the prices of the labor and materials on the work done under. the original contract, and without reference to the changes, the cost of that work was increased to the buil ler $118,283.20.

The appellants asserted a claim for this amount also, which the court refused.

It is very clear that both parties contemplated the probability that the work would not be completed at the precise period of eight months from the date of the contract. They also contemplated that changes would be made in the construction of the battery. They made such provision for these matters as they deemed necessary for the protection of each party. For the reasonable cost and expenses of the changes made in the construction, payment was to be made; but for any increase in the cost of the work not changed, no provision was made. There was a provision for delay, by which the contractor was to submit to pay $4,500 for every month of that delay. This provision, the only one on that subject, if strictly enforced, might have made him a still greater loser; but it seems to have been waived. But we are very clear that without any such provision he must be held to have taken the risk of the prices of the labor and materials which he was bound to furnish, as every other contractor does who agrees to do a specified job at a fixed price. It is one of the elements which he takes into account when he makes his bargain, and he cannot expect the other party to guarantee him against unfavorable changes in those prices.

Judgment affirmed.

۱

PETITION for a writ of prohibition to restrain the District Court of the United States for the Eastern District of New York fron. exercising jurisdiction in a proceeding in rem to enforce an alleged lien for wharfage against the canal-boat or barge "John M. Welch."

As the facts in the case are fully stated in the opinion of the court, they are omitted here.

Mr. Edward D. McCarthy and Mr. J. E. Gowen for the petitioners.

The District Court has no jurisdiction over the barge " John M. Welch," because, 1, a contract of wharfage is not a maritime contract. The Genesee Chief, 12 How. 443; The Lottawanna, 21 Wall. 558; The Belfast, 7 id. 624; Insurance Company v. Dunham, 11 id. 1; Rex v. Humphrey, 1 McCle. & Yo. 194; Platt v. Hibbard, 7 Cow. (N. Y.) 497; Barry v. Langmore, 12 Ad. & E. 640; Speares v. Hartley, 3 Esp. 81; Richardson v. Goss, 3 Bos. & Pul. 119.

ner, 13 Wend. (N. Y.) 290; Sacramento v. New World, 4 Cal. 44; Story, Bailm., sects. 451, 453; 2 Kent, Com. 635, 642; Gaisede v. Trent & Mersey Navigation Co., 4 T. R. 581; Steinman v. Wilkins, 7 Serg. & R. 466.

Mr. F. A. Wilcox, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court. Judicial power under the Federal Constitution extends to all cases of admiralty and maritime jurisdiction, and it was doubtless the intention of Congress, by the ninth section of the Judiciary Act, to confer upon the District Court the exclusive original cognizance of all admiralty and maritime causes, the words of the act being in terms exactly coextensive with the power conferred by the Constitution. In order, therefore, to determine the limits of the admiralty jurisdiction, it becomes necessary to ascertain the true interpretation of the constitutional grant. On that subject three propositions may be assumed as settled by authority, and to those it will be sufficient to refer on the present occasion, without much discussion of the principles on which the adjudications rest: 1. That the jurisdiction of the district courts is not limited to the particular subjects over which the admiralty courts of the parent country exercised jurisdiction when our Constitution was adopted. 2. That the jurisdiction of those courts does not extend to all cases which would fall within such jurisdiction, according to the civil law and the practice and usages of continental Europe. 3. That the nature and extent of the admiralty jurisdiction conferred by the Constitution must be determined by the laws of Congress and the decisions of this court, and by the usages prevailing in the courts of the States at the time the Federal Constitution was adopted. No other rules are known which it is reasonable to suppose could have been in the minds of the framers of the Constitution than those which were then in force in the respective States, and which they were accustomed to see in daily and familiar practice in the State courts.

Authority is conferred upon the libellants, as the proprietors of the wharf and slip in question, by the law of the State, to charge and collect wharfage and dockage of vessels lying

at said wharf, and within the slip adjoining the wharf of the libellants.

Sufficient appears to show that the respondents are the owners of the barge named in the libel; that on the 10th of October, 1876, she completed a trip from the port of Baltimore for the port of New York, and that she took wharfage at the wharf or pier of the libellants, where she remained for eleven days. For the use of the berth occupied by the barge the libellants charged $34.20, as wharfage and dockage. Due demand was made; and, payment being refused, the libellants instituted the present suit, which is a libel in rém against the barge to recover the amount of that charge. Process was served; and the respondents appeared and excepted to the libel, and set up that process of condemnation should not issue against the barge, for the following reasons: 1. Because no maritime lien arises in the case for the matters set forth in the libel. 2. Because no lien in such a case is given for wharfage against boats or vessels by the laws of the State. 3. Because the law of the State referred to in the libel as giving a lien for wharfage is unconstitutional and void, for the following reasons: (1.) Because it imposes a restriction on commerce. (2.) Because it imposes a duty of tonnage on all vessels of the character and description of that of the respondents. (3.) Because it discriminates against the boats or barges of persons who are not citizens of the State where the proprietors of the wharf reside.

Pending the proceedings in the District Court, the respondents presented a petition here, asking leave to move this court for a prohibition to the court below forbidding the District Court to proceed further in the case.

Pursuant to said petition, this court entered an order permitting argument upon the merits of the petition, and directing that due notice be given to the libellants and the clerk of the District Court. Hearing was had in conformity to that order, and the case was held under advisement.

Power is certainly vested in the Supreme Court to issue the writ of prohibition to the District Court, when that court is proceeding in a case of admiralty and maritime cognizance of which the District Court has no jurisdiction. 1 Stat. 81; United States v. Peters, 3 Dall. 12.