« ForrigeFortsett »
diction in bankruptcy; to same effect are Winchester v. Heiskell, 119 U. S. 453, 80 L. 464, 7 8. 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 walve 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. 8. 238, 19 S. Ct. 163, 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. 8. 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 ob Jections 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 de presumption that they meant to relinquish their bottomry lien, p. 429.
Estoppel.- An expression of opinion, rather than a positive as sertion of a fact, is insufficient basis for an estoppel, p. 430.
Reafirmed 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 usefu 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, 139, 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 y. 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 rlver 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 D., and Shaw v. Oswego Iron Co., 10 Or. 378. 45 Am. Rep. 151, all holding river capable of floating logs during portion of year, navigable; 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 whicb 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. 636, as containing valuable discussion of what constitutes & 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 op 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 or navigable waters thereof, p. 440.
Olted with approval in In re Garnett, 141 U. S. 17, 33 L. 635, 11 S. Ct. 844, where laws of the United States relating to navigable waters were held to be applicable to navigable rivers as well as waters affected by the tide; Green Bay, etc., Co. v. Patten Co., 172 U. S. 69, 19 S. Ct. 101, holding the water power created by the erection of the dam and canal for purpose of navigation in Fox river is subject to control of United States. See monographic note, 10 Am. Dec. 388.
20 Wall. 445-459, 22 L. 365, INSURANCE CO. V. MORSE.
Removal of causes.— Party may waive his right to have a cause removed, p. 451.
Reaffirmed and adopted in Hanover Bank v. Smith, 13 Blatchf. 225, F. C. 6,035, holding right may be waived by conduct as well as by stipulation; Pollock v. Cohen, 32 Ohio St. 521, is to same effect; Wadleigh v. Standard, etc., Ins. Co., 76 Wis. 442, 45 N. W. 110, holding party should be allowed to withdraw his petition and bond for removal where he makes application before transcript of record has been sent to Federal court
Distinguished in Quimby v. Insurance Co., 58 N. H. 495, holding foreign corporation doing business in State, by accepting service of process in conformity with State laws, is not thereby deprived of right of removal of cause to Federal courts.
Constitutional law.– A citizen cannot barter away his life, freedom, or constitutional rights; therefore agreement by insurance company in its contract of insurance not to remove suit to Federal courts, any claim arising upon contract, is invalid, p. 451.
Cited and relied upon in Pope Mfg. Co. v. Gormully, 144 U. S. 236, 36 L. 419, 12 S. Ct. 637, holding contract not to set up any defense whatever to any suit which might be brought upon fifty different causes of action is in violation of public policy; Bauer v. Samson Lodge, 102 Ind. 269, 1 N. E. 575, Wortman v. Montana, etc., Ry. Co., 22 Mont. 279, 56 Pac. 321, Baltimore, etc., Ry. Co. v. Stankard, 56 Ohio St. 231, 60 Am. St. Rep. 747, 46 N. E. 578, Cupples v. Alamo Co., 7 Kan. App. 693, 51 Pac. 920, Supreme Lodge v. Ray. mond, 57 Kan. 651, 47 Pac. 534, and Supreme Council of Order of Chosen Friends v. Forsinger, 125 Ind. 55, 21 Am. St. Rep. 199, 25 N E. 130, 9 L. R. A. 502, all holding an agreement which entirely takes away the right to invoke the aid of courts in enforcing claims arising under contract, is invalid; Hankinson v. Page, 24 Blatchf. 429, 31 Fed. 188, and Mitchell v. Dougherty, 90 Fed. 642, 644, 62 U. S. App. 451, 454, are to same effect; Hancock v. Yaden, 121 Ind. 369, 16 Am. St. Rep. 399, 23 N. E. 254, 6 L. R. A. 577, where ante cedent contract, assuming to waive right to receive wages for mining coal in money, was held void; German-Am. Ins. Co. v. Etherton, 25 Neb. 508, 41 N. W. 406, holding provision in policy that
no sult against Insurer shall be sustained in any court of law or equity until after award shall have been obtained by arbitration, fixing amount due after loss, is void; also, Mentz v. Armenia Ins. Co., 79 Pa. St. 480, 21 Am. Rep. 82, holding such a condition in policy will not oust jurisdiction of courts. Cited, arguendo, in Smith v. Preferred Assn., 51 Fed. 522, Wright v. Insurance Co., 110 Pa. St. 36, 20 Atl. 717, and McCoy v. Able, 131 Ind. 423, 30 N. E. 330, without special application. See note on agreements to submit to arbitration, 14 Am. Dec. 297; note on by-laws of corporations restricting right to sue,” 85 Am. Dec. 621; note, 25 Am. Rep. 104, also note, 29 Am. Rep. 602. See monographic note, 8 Am. St. Rep. 922.
Courts. - State legislation cannot confer jurisdiction on Federal courts, nor can it limit or restrict authority given them by Congress, to contest a will was held valid.
Distinguished in In re Garcelon, 104 Cal. 590, 43 Am. St. Rep. 144, 38 Pac. 419, 32 L. R. A. 604, and n., where an agreement not
Cited in the following cases, to the effect that no provision in a State law can prevent the removal of a cause to Federal court, if case falls within terms of Federal statute, providing for removal of causes: Kern v. Huidekoper, 103 U. S. 492, 26 L. 357, Martin v. Baltimore, etc., Ry. Co., 151 U. S. 684, 38 L. 315, 14 S. Ct. 537, Goldey v. Morning News, 156 U. S. 523, 39 L. 519, 15 S. Ct. 561, Filer v. Levy, 17 Fed. 612, Am. Finance Co. v. Bostwick, 151 Mass. 27, 23 N. E. 659, and dissenting opinion in Johnson v. Brewers' Ins. Co., 51 Wis. 580, 585, 9 N. W. 658, 661, the majority holding a decision by State court after attempt at removal is not necessarily void; East Tennessee, etc., Ry. Co. v. Atlanta, etc., Ry. Co., 49 Fed. 612, 15 L. R. A. 111, bolding where Federal court has jurisdiction of a cause this jurisdiction cannot be restricted by laws of State respecting venue. Approved, arguendo, in Merchants' Mfg. Co. v. Grand Trunk Ry. Co., 21 Blatchf. 110, 13 Fed. 358.
Modified in Schollenberger v. Insurance Co., 21 Fed. Cas. 727, holding State legislation combined with consent of parties may conter jurisdiction on Federal courts.
Removal of causes.— On filing of proper petition and bond in suit which is removable, no further power of action in cause remains in State court, p. 454.
Reaffirmed in Ellerman v. New Orleans, etc., R. Co., 2 Woods, 125, F. C. 4,382, and Dennis v. County of Alachua, 3 Woods, 690, F. C. 3,791, the latter holding the approval of bond by State court is not necessary to Jurisdiction of Federal court; Friedman v. Israel, 26 Fed. 804, holding where property has been seized under attachment and cause has subsequently been removed to Federal court, sheriff cannot interpose his writ when property is demanded by