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Cited and applied in Spencer v. Sully County, 4 Dak. 480, 33 N. W. 99, in holding territorial legislature had no power to invest county boards of commissioners with judicial powers; Territory v. Flowers, 2 Mont. 535, holding, under its common-law jurisdiction, the Montana Territorial District Court has jurisdiction over the statutory crime of assault and battery; arguendo, in People v. House, 4 Utah, 380, 10 Pac. 842, and People v. Spiers, 4 Utah, 387, 10 Pac. 610.

Courts.- Probate Courts do not proceed according to the course of the common law, p. 382.

Cited and applied in United States v. Hall, 5 N. Mex. 182, 21 Pac. 86, holding, under act providing affidavit in making final proof in pre-emption claims, may be made before clerk of County Court, the same cannot be made before clerk of Probate Court; incidentally, as discussing nature of Probate Courts, in following: Detroit, etc., Ry. Co. v. Judge, 63 Mich. 680, 30 N. W. 600, Chadwick v. Chadwick, 6 Mont. 579, 13 Pac. 388, and State Printing Co. v. Board, Okl. —, 56 Pac. 958.

Territories.- Act of Utah territorial legislature, conferring general jurisdiction in chancery and law on Probate Courts, is, in view of Federal statute organizing the territory, void, p. 384.

Cited and principle applied in Clayton v. Utah, 132 U. S. 640, 83 L. 458, 10 S. Ct. 193, in holding act of legislature of Territory of Utah, relating to mode of appointing an auditor of public accounts, to be in conflict with organic law, and, therefore, invalid; Perea v. Barela, 5 N. Mex. 470, 23 Pac. 770, holding act of New Mexico legislature investing Probate Courts with exclusive jurisdiction in all proceedings relating to estates of decedents, is void, being in conflict with the organic law which confers chancery and commonlaw jurisdiction on other courts; to same effect is same case on rehearing, 6 N. Mex. 241, 27 Pac. 507; In re Christiansen, 17 Utah, 422, 425, 70 Am. St. Rep. 800, 803, 53 Pac. 1006, 1007, 41 L. R. A. 507, 508, reaffirms the holding; McCray v. Baker, 3 Wyo. 193, 18 Pac. 750, holding act of Wyoming territorial legislature, providing for granting of injunctions by probate judge, in absence from county of district judge, is void, as being in violation of organic aet. Cited in Territory v. Bramble, 2 Dak. 199, 5 Pac. 947, People v. Spiers, 4 Utah, 389, 393, 10 Pac. 612, 615, People v. Douglass, 5 Utah, 291, 14 Pac. 803, and Lincoln Min. Co. v. Court, 7 N. Mex. 502, 38 Pac. 585, dissenting opinion in Clancey v. Clancey, 7 N. Mex. 418, 38 Pac. 169, Browning v. Browning, 3 N. Mex. (668), 467, Pac. 682, and Territory v. Flowers, 2 Mont. 536, in discussion as to Jurisdiction of territorial courts.

Cited, arguendo, in Webster v. Seattle Trust Co., 7 Wash. 648, 649, 653, 35 Pac. 1083, 1084, 1085, where it was held power given Probate Courts by legislature of Washington Territory to make

same.

distribution of a testator's estate to minor children not provided for in will, was not in contravention of organic act creating such courts. Cited in dissenting opinion in Reis v. Lawrence, 63 Cal. 143, as authority for holding a decree of divorce rendered by Utah Probate Court, is void for want of jurisdiction in court to render Cited, arguendo, in Irwin v. Irwin, 2 Okl. 195, 37 Pac. 552, and in dissenting opinion in same case, p. 225, 37 Pac. 562, where it was held the Probate Courts of the Territory of Oklahoma have jurisdiction to hear and determine actions of divorce, and this view was reaffirmed on rehearing in S. C., 3 Okl. 201, 202, 41 Pac. 374, 375. Cited in Whitmore v. Hardin, 3 Utah, 131, 1 Pac. 468, where it was held that the legislature may designate Probate Courts as proper court for hearing divorce proceedings.

Distinguished and explained in Ex parte Lothrop, 118 U. S. 118, 30 L. 110, 6 S. Ct. 987, where act of territorial legislature of Arizona, in organizing County Courts, was held valid; Robinson v. Fair, 128 U. S. 86, 32 L. 423, 9 S. Ct. 34, in holding it within the power of a State legislature to invest a Probate Court with authority to make partition of an undivided estate among heirs-at-law of deceased; Bent v. Thompson, 138 U. S. 122, 34 L. 905, 11 S. Ct. 241, where question raised was as to practice in Territorial Probate Courts, not as to their jurisdiction; Bucher v. Thompson, 7 N. Mex. 119, 32 Pac. 499, where jurisdiction was conferred on Probate Court in certain kinds of civil cases.

Miscellaneous.- Cited incidentally in Greeley v. Winsor, 1 8. Dak. 632, 48 N. W. 218.

20 Wall. 385-386, 22 L. 385, THE S. B. WHEELER.

Admiralty. Where both District and Circuit Courts have concurred in decision of questions of fact, it will be affirmed in Supreme Court, unless proof of error is clear, p. 386.

Reaffirmed in The Lady Pike, 21 Wall. 9, 22 L. 502, The Richmond, 103 U. S. 542, 543, 26 L. 314, 451, Smith v. Burnett, 173 U. S. 436, 19 S. Ct. 445, and The S. S. Wilhelm, 59 Fed. 170, 16 U. S. App. 356, a cause in the Circuit Court of Appeals is to same effect; The Barque Kallisto, 2 Hughes, 144, F. C. 7,600, no special application.

Collision. Whether absence of lookout at bow of colliding schooner is contributory negligence is question of fact, p. 386.

20 Wall 387-403, 22 L. 354, NEW ORLEANS v. THE STEAMSHIP CO

Contempt of court is a specific criminal offense, p. 392.

Reaffirmed in Fischer v. Hayes, 19 Blatchf. 18, 6 Fed. 68, holding imposition of fine for contempt is a judgment in a criminal case; In re Ellerbe, 4 McCrary, 451, 13 Fed. 532, is to same effect; Denver, etc., Ry. Co. v. Atchison, etc., Ry. Co., 5 McCrary, 292, 16

Fed. 853, holding court has power to punish by fine and imprisonment only, and cannot make an order in nature of further directions for enforcement of decree; United States v. Berry, 24 Fed. 782, and proceedings for, cannot be heard in division of District Court, other than one in which acts amounting to contempt were committed; Kirk v. Milwaukee, etc., Mfg. Co., 26 Fed. 505, 508, Corbin v. Boles, 34 Fed. 699, Ex parte Crittenden, 62 Cal. 535, Tyler v. Connolly, 65 Cal. 32, 2 Pac. 417, In re Buckley, 69 Cal. 3, 10 Pac. 70, and Lester v. People, 150 Ill. 424, 41 Am. St. Rep. 384, 37 N. E. 1004, all approve and apply the rule; Van Hoorebeke v. United States, 46 Fed. 459, holding where district attorney appears for government in such a suit he is entitled to his statutory fee as for an independent suit; Gould v. Sessions, 67 Fed. 164, 35 U. S. App. 281, and Butler v. Fayerweather, 91 Fed. 459, 63 U. S. App. 123, holding judgment in such proceeding reviewable on writ of error only; In re Manning, 44 Fed. 276, holding writ or order for punishment of officer of court for contempt under section 725, revised statutes, cannot run to marshal of another district; Ex parte Gould, 99 Cal. 362, 37 Am. St. Rep. 59, 33 Pac. 1113, 21 L. R. A. 752, holding court cannot compel a party to testify against himself in such proceedings; Baldwin v. State, 126 Ind. 31, 25 N. E. 822, holding the offense bailable; State v. Hudson Elec. Co., 61 N. J. L. 115, 38 Atl. 818, holding, where proceedings are to punish party for alleged disregard of authority of court, the proceeding is quasi-criminal and entirely distinct from suit out of which it sprang; State v. Markuson, 5 N. Dak. 150, 64 N. W. 935, and State v. Knight, 3 S. Dak. 514, 44 Am. St. Rep. 813, 54 N. W. 414, holding writ of error proper remedy for reviewing judgment for contempt; State v. Nathans, 49 S. C. 204, 27 S. E. 54, holding such proceedings should be brought in name of State; Sharp v. State, 102 Tenn. 11, 49 S. W. 753, 43 L. R. A. 789, holding governor has power to pardon a person committed for contempt. Cited, arguendo, in dissenting opinion in Interstate Com. Commission v. Brimson, 155 U. S. 5, 39 L. 50, 15 S. Ct. 20, and In re Litchfield, 13 Fed. 868, quære, whether contempt can be committed outside jurisdiction of contemned court; In re Acker, 66 Fed. 292, holding contempt, if classified as a criminal offense, should be designated as a misdemeanor; Indianapolis Water Co. v. American, etc., Co., 75 Fed. 977, and Dodd v. Una, 40 N. J. Eq. 717, 5 Atl. 167, where contempts are classified; Teller v. People, 7 Colo. 451, 4 Pac. 48, and Ex parte Whitmore, 9 Utah, 458, 35 Pac. 530, holding further, no appeal lies from a judgment in such proceedings; Phillips v. Welch, 11 Nev. 190, holds likewise, where proceedings are purely criminal; Una v. Dodd, 38 N. J. Eq. 462, no special application. See note, 22 Am. St. Rep. 417.

Modified in In re Fil Ki, 80 Cal. 204, 22 Pac. 147, holding contempt is a quasi-criminal offense; Wyatt v. People, 17 Colo. 257,

28 Pac. 962, and Snow v. Snow, 13 Utah, 22, 43 Pac. 622, holding some contempts are civil; State v. Stevenson, 104 Iowa, 52, 73 N. W. 360, holding provision in code relating to new trials in criminal cases, does not apply to contempt proceedings.

Courts. Supreme Court has no appellate jurisdiction over criminal cases decided in Circuit Court, p. 392.

Cited, arguendo, in Tinsley v. Anderson, 171 U. S. 105, 18 S. Ct. 807, no special application.

Courts.- Supreme Court has no jurisdiction to review a judg ment of Circuit Court Imposing fine for contempt, p. 392.

Reaffirmed in Hayes v. Fischer, 102 U. S. 122, 26 L. 96, where attempt was made to review such a judgment by writ of error; arguendo, in Newport Light Co. v. Newport, 151 U. S. 539, 38 L. 263, 14 S. Ct. 433, In re Ellerbe, 4 McCrary, 453, 13 Fed. 533, and Searls v. Worden, 13 Fed. 718.

Distinguished in Worden v. Searls, 121 U. S. 26, 30 L. 857, 7 S. Ct. 820, where proceedings, while nominally for contempt, were really proceedings to award damages to plaintiff; In re Spofford, 62 Fed. 444, and Sessions v. Gould, 63 Fed. 1002, 26 U. S. App. 368, apparently holding such a judgment might be reviewed in Circuit Court of Appeals on writ of error.

Courts.- Circuit Court, having acquired jurisdiction of a case, is entitled to hold it exclusively until case is finally disposed of, p. 392.

Cited and applied in Sharon v. Sharon, 84 Cal. 431, 23 Pac. 1101, where suit was brought in State court, embracing same matter as was subject of suit in United States Circuit Court; State v. Burke, 35 La. Ann. 188, holding State Supreme Court will not order the payment of an entire fund to a petitioner while other parties are claiming payment out of it in the United States Supreme Court under writ of error to State court; Wilmer v. 'Atlanta, etc., Ry. Co., 2 Woods, 421, F. C. 17,775, Adams v. Mercantile Trust Co., 66 Fed. 621, 30 U. S. App. 204, and Ex parte Turner, 3 Woods, 609, F. C. 14,246, where jurisdiction of court has attached, right of plaintiff to prosecute his suit therein, cannot be taken away by proceedings in another court, unless of superior jurisdiction; Logan v. Greenlaw, 12 Fed. 19, Slaughter-House Co. v. Slaughter-House Co., 37 La. Ann. 881, and Hale v. Bugg, 82 Fed. 37, without special application.

War.- Government of United States had same power and rights in territory taken from the so-called Confederate government, that it would have in territory won by conquest in a foreign war, p. 393. Cited in Daniel v. Hutcheson, 86 Tex. 60, 22 S. W. 936, in deter mining the extent of authority of the military government estab lished in Texas.

War.- City government of New Orleans, while under military authority, had power to lease city property for a term extending beyond period when civil government was restored, p. 395.

Cited in dissenting opinion in Detroit v. Detroit City Ry. Co., 56 Fed. 900, 907, and in Detroit v. Detroit Ry. Co., 60 Fed. 168, arguendo.

20 Wall. 403-407, 22 L. 361, LYON v. POLLARD.

Contracts.—Under contract for services which provided notice should be given of intent to terminate same, in case contract is terminated before full period of notice has lapsed, party aggrieved can only recover for days remaining, p. 407.

Master and servant. Where agreement for service provided either party might terminate same on giving thirty days' notice to other, under suit for damages by party discharged without notice, the defendant may show the other party was unfit for service, p. 407.

See note, 58 Am. Dec. 727.

20 Wall. 407-413, 22 L. 385, AVERY v. HACKLEY.

Liens. Valid lien is not divested by fact that holder takes a bill of sale of property on which lien exists, which sale is afterwards set aside as a fraudulent preference of creditors under bankruptcy act, p. 411.

Cited and applied in Hutchinson v. Murchie, 74 Me. 190, holding creditors electing to avoid a fraudulent conveyance take the property as it was when transferred and subject to all liens then existing; Fowler v. Parsons, 143 Mass. 407, 9 N. E. 803, holding lien is not waived by fact that holder thereof, who is also holding property under claim of ownership, fails to assert same when property is demanded by true owner; Enright v. Amsden, 70 Vt. 188, 189, 191, 40 Atl. 39, 40, holding a mortgagee of personal property does not abandon his lien by purchasing the goods under an arrangement with mortgagor, that he shall resell them and apply the proceeds to the discharge of the liability indemnified against by mortgage. See note, 52 Am. Dec. 285.

20 Wall. 414-420, 22 L. 389, MAYS v. FRITTON.

Courts. Where party voluntarily submits to jurisdiction of State court he cannot, after judgment has gone against him, come into Federal court and object that State court had no authority. p. 418.

Cited and rule applied in Scott v. Kelly, 22 Wall. 59, 22 L. 730, holding assignee in bankruptcy, after submitting to jurisdiction of State court, cannot set up that Federal courts alone have juris

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