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 judgment 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 established 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.


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

diction in bankruptcy; to same effect are Winchester v. Heiskell, 119 U. S. 453, 30 L. 464, 7 S. Ct. 282, Augustine v. McFarland, 2 Fed. Cas. 215, and In re Moller, 8 Ben. 530, F. C. 9,699, the two latter boiding assignee may waive that provision in bankruptcy act which provides that property covered by a mortgage shall be sold in such manner as bankruptcy court shall direct; Grant v. Buckner, 172 U. S. 238, 19 S. Ct. 165, where a receiver appointed by a Federal court voluntarily went into State court; Beall v. Walker, 26 W. Va. 748, holding where there is no objection from Bankruptcy Court or from assignee or creditors, party may proceed in State court to enforce liens against property of bankrupt. Cited in Eyster v. Gaff, 91 U. S. 526, 23 L. 405, Francisco v. Shelton, 85 Va. 788, 8 S. E. 794, McHenry v. La Société, 95 U. S. 59, 24 L. 371, and Calhoun v. Lanaux, 127 U. S. 639, 32 L. 299, 8 S. Ct. 1348, relating to question of concurrent jurisdiction of State and Federal courts in bankruptcy matters; Fisher v. Lewis, 69 Mo. 630, where a sale of property of a bankrupt under execution upon judgment rendered and levy made prior to adjudication of insolvency, was held valid. Approved, arguendo, in Calhoun v. Lanaux, 127 U. S. 638, 32 L. 298, 8 S. Ct. 1347, and Lindsey v. Corkery, 29 Gratt. 659. See note, 17 Am. Rep. 207.

Appeal and error.- Objection to action of lower court, to be available in appellate court, must have been taken below, p. 418. Cited in Upton v. McLaughlin, 105 U. S. 646, 26 L. 1200, to obJections to the admission of evidence.

Bankruptcy. To make a transfer of property fraudulent as to creditors, it must be shown that transferee took with knowledge that he was being preferred, p. 420.

Reaffirmed in Harmanson v. Bain, 1 Hughes, 203, F. C. 6,072, and In re Hamilton, 1 Fed. 807, where arrangement between debtor and certain creditors, entered into in good faith some time before debtor became insolvent, was held valid; Chadwick v. Carson, 78 Ala. 122, holding fact that two weeks subsequent to time of execution of a mortgage it was generally known that mortgagor was insolvent, does not raise presumption mortgagee knew of his condition at time of execution of same. Approved, arguendo, in Sanford v. Huxford, 32 Mich. 316, 20 Am. Rep. 649, and Stewart v. Hopkins, 30 Ohio St. 531.

Miscellaneous. Cited in Harmanson v. Bain, 1 Hughes, 201, F. C. 6,072, as instance of bill to avoid fraudulent conveyance.

20 Wall. 421-430, 22 L. 362, BELLE OF THE SEA.

Shipping. Where adjusters of average take up a bottomry bond and have it assigned to them, collect freights, general average and insurance, and make disbursements on vessel, there is no presumption that they meant to relinquish their bottomry lien, p. 429.

Estoppel.- An expression of opinion, rather than a positive assertion of a fact, is insufficient basis for an estoppel, p. 430.

Reaffirmed in Borland v. Zittlosen, 27 Fed. 134, and Mason v. Bridge Co., 28 W. Va. 650, holding mere matter of inference or opinion not sufficient.

20 Wall. 430-445, 22 L. 391, THE MONTELLO.

Navigable waters.- Those streams will be regarded navigable which, in their ordinary condition, afford a channel for useful commerce, p. 439.

Cited and principle applied in Ex parte Boyer, 109 U. S. 631, 27 L. 1057, 3 S. Ct. 435, where the Illinois and Lake Michigan canal was held to be navigable water within meaning of Constitution and laws of United States, conferring admiralty jurisdiction; In re Garnett, 141 U. S. 15, 35 L. 634, 11 S. Ct. 843, holding maritime law of the United States is in force on navigable rivers thereof above tide water as well as within limits of; United States v. Rio Grande Irr. Co., 174 U. S. 698, 699, 19 S. Ct. 773, where Rio Grande river within limits of Territory of New Mexico was held not to be a navigable stream; The E. M. McChesney, 8 Ben. 157, 159, F. C. 4,463, holding admiralty has jurisdiction to enforce a contract against a canal-boat, when said boat at time of entering into contract was lying in a navigable stream which empties into Lake Erie; United States v. Burlington, etc., Ferry Co., 21 Fed. 333, holding Congress has power to regulate the navigation of boats on navigable waters of United States, though such boats be engaged exclusively in State commerce; The Hazel Kirk, 25 Fed. 605, 606, where waters of Jamaica bay, lying entirely within State of New York, are held to be public navigable waters of the United States; The Katie, 40 Fed. 488, 7 L. R. A. 63, and n., holding the law of limited liability applicable to a vessel navigating the Savannah river; Lewis v. Coffee County, 77 Ala. 192, 54 Am. Rep. 56, and Sullivan v. Spotswood, 82 Ala. 167, 168, 2 So. 718, both holding a stream which has sufficient depth and width during portion of year to be used for transportation of logs, or products of tillage of country along its banks, is navigable; to same effect are Little Rock, etc., Ry. Co. v. Brooks, 39 Ark. 409, 43 Am. Rep. 280, and Carter v. Thurston, 58 N. H. 107, 42 Am. Rep. 584; Goodwell v. Police Jury, 38 La. Ann. 755, reaffirms the general rule; Clark v. Cambridge, etc., Imp. Co., 45 Neb. 805, 64 N. W. 240. applying rule in holding Republican river non-navigable; Commissioners v. Lumber Co., 116 N. C. 738, 47 Am. St. Rep. 834, 21 S. E. 944, Falls Mfg. Co. v. Oconto River Co., 87 Wis. 149, 58 N. W. 261, Willow River Club v. Wade, 100 Wis. 99, 76 N. W. 276, 42 L. R. A. 318, and n., and Shaw v. Oswego Iron Co., 10 Or. 378. 45 Am. Rep. 151, all holding river capable of floating logs during portion of year, navi

gable; State v. Pacific Guano Co., 22 S. C. 76, holding tidal channels navigable in law only when navigable in fact; Heyward v. Farmers' Co., 42 S. C. 153, 46 Am. St. Rep. 714, 19 S. E. 971, 28 L. R. A. 51, holding whether surrounding circumstances are such as to make a stream presently useful for navigation should not be considered in determining its navigability; Sweeney v. Chicago, etc., Ry. Co., 60 Wis. 69, 18 N. W. 759, holding Wisconsin river a stream over which the regulations of Congress extend; dissenting opinion in Gwaltney v. Timber and Land Co., 111 N. C. 560, 16 S. E. 695, the majority holding a stream which was used for floating logs was not, under circumstances, navigable.

Cited, arguendo, in Peters v. New Orleans, etc., R. Co., 56 Ala. 536, as containing valuable discussion of what constitutes a navigable watercourse; Walker v. Allen, 72 Ala. 459, holding streams above tidal waters, not treated as navigable in surveys made by the United States, are prima facie not navigable; Wood v. Fowler, 26 Kan. 688, 40 Am. Rep. 333, New England Trout, etc., Club v. Mather, 68 Vt. 346, 35 Atl. 325, 33 L. R. A. 571, and Concord Co. v. Robertson, 66 N. H. 5, 25 Atl. 720, without special application. See note, 50 Am. Dec. 649; note, collecting authorities, 81 Am. Dec. 583.

Distinguished in Chisolm v. Caines, 67 Fed. 292, holding partially navigable creeks, which open upon a bay, but lead merely into private lands, are not public navigable water; Toledo Shooting Co. v. Erie Shooting Club, 90 Fed. 682, 62 U. S. App. 649, 650, holding an arm of a lake, in which the water. is from two to three feet deep, and in certain portion of year is covered with grass and rushes, is not navigable water.

Navigable waters. A river is a navigable water of United States when it forms by itself, or its connection with other waters, a continuous highway over which commerce is, or may be, carried on with other States or foreign countries in customary modes in which such commerce is conducted by water, p. 439.

Cited and applied in Commonwealth v. King, 150 Mass. 225, 22 N. E. 906, 5 L. R. A. 538, the Connecticut river being navigable only between different places in Massachusetts, it is not within Federal maritime jurisdiction; arguendo, in Covington, etc., Bridge Co. v. Kentucky, 154 U. S. 210, 38 L. 966, 14 S. Ct. 1089, in discussion as to what navigable streams are entirely under control and regulation of States; Louisville, etc., R. Co. v. Railroad Commissioners, 19 Fed. 708, in discussion as to power of States to regulate railroad rates. See note, 84 Am. Dec. 769.

Navigable water.- Fox river in Wisconsin is a navigable river, though made so by artificial improvements, and vessels navigating same are subject to laws of United States regulating traffic on navigable waters thereof, p. 440.

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