on petition for a re-hearing:
The learned counsel for the defendant, in his petition for a rehearing, has suggested some difficulties, which it is proper to notice. It is insisted, that the whole course of reasoning of my former opinion tends to the conclusion that the original jurisdiction of the District Courts of the United States, in civil admiralty cases, is exclusive.
It may be true, and, for the sake of the argument only, we will concede the fact, that, under the Constitution of the United States, and the Judiciary Act of 1789, an appeal from this Court to the Supreme Court of the United States, will only involve the question of jurisdiction, and not the merits of the decision under the Admiralty Code. But this in no way impairs the reasons given, or the grounds upon which the opinion was based.
When the Constitution extended the judicial power of the United States “ to all cases of admiralty and maritime jurisdiction,” it made the Maritime Code the law of the nation. As such, it is not in the power of a State to change it. If changed, it must be done by the Rational Legislature. The provision, that the judicial power shall extend to all such cases, is fully satisfied when the appellate power is extended to them. (Kent, pp. 318, 320.)
In the case of Wiscart v. Dauchey, (3 Dallas, 321,) it was held that only appellate jurisdiction is given to the Supreme Court in those cases where the jurisdiction depends upon the nature of *736the subject-matter; and “ even this appellate jurisdiction is likewise qualified; inasmuch as it is given, with such exceptions and under such regulations as Congress shall make.” “Here, then,” continues the Chief Justice, “ is the ground, and the only ground on which we can sustain an appeal. If Congress has provided no rule to regulate our proceedings, we can not exercise an appellate jurisdiction; and, if the rule is provided, we can not depart from it.” This view was confirmed by the subsequent cases of Clark v. Bazadoni, (1 Cranch, 77,) The United States v. More, (3 Cranch, 159,) and Duroussian v. The United States, (6 Cranch, 307.).
The failure of Congress to provide for an appeal from the State tribunals, in civil admiralty eases, can not affect the question.as to their concurrent original jurisdiction, under the Constitution of the United States. If this concurrent original jurisdiction exists, then the right of appeal depends upon the pleasure of Congress. . .. ■
As to another point, involving a question of practice, it, is proper to give the reasons which induced me to concur in deciding the point against the defendant. . .
I concur with my Brother jField, that “the. contract was the substantive cause of action, and the injuries received were .alleged by way of special damage.” But I do not concur with him in the conclusion he draws.
. It is true, that the husband and wife were nominally joined as plaintiffs; but the cause of action, as distinctly set forth in the complaint, was a contract only between Warner and the owners of defendant. The name of Mrs. Warner was, therefore, mere surplusage, and not a defect of parties under the fortieth section of the Code, and might have been stricken out on motion,.if desired. (1 Ch. Plead., 14, note 10; Code, § 69.) Had final judgment been rendered for plaintiffs, it would have been a good bar to a subsequent suit by Warner alone, upon the same cause of action. All the parties to be affected by the decision were before the Court. Where A and B sue upon a joint cause of action, they must prove the joint cause, as alleged. When one plaintiff only sues, and alleges a joint cause of action, the defendant may demur, for the reason that one of the parties interested, in the subject of the suit is not before the Court, and may not be bound by the decision. There are the best reasons why a defendant may demur for a defect of parties, plaintiff or defendant. This right to demur was given, to enable the defendant to have all the parties before the Court, as provided in section seventeenth of the Code.