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gin canal, at a place within the body of Cook county, in the state of Illinois. In November, 1883, the district court made an interlocu. tory decree, finding that both parties were in fault, and decreeing that they should each pay one-half of the damages occasioned by the collision, to be thereafter ascertained and assessed by the court. The owners of the B & C have now presented to this court a petition praying that a writ of prohibition may issue to the judge of the said district court, prohibiting him from proceeding further in said suit. The ground alleged for the writ is the want of jurisdiction of the district court, as a court of admiralty, over the waters where the collision occurred.

The Illinois and Michigan canal is an artificial navigable waterway, connnecting Lake Michigan and the Chicago river with the Illinois river and the Mississippi river. By the act of congress of March 30, 1822, c. 14, (3 St. 659, the use of certain public lands of the United States was vested in the state of Illinois forever, for a canal to connect the Illinois river with the southern bend of Lake Michi. gan. The act declared “that the said canal, when completed, shall be and forever remain a public highway, for the use of the government of the United States, free from any toll or other charge whatever for any property of the United States, or persons in their service, passing through the same.” This declaration was repeated in the act of March 2, 1827, c. 51, (4 St. 234,) granting more land to the state of Illinois to aid it in opening the canal. We take judicial notice of the historical fact that the canal, 96 miles long, was completed in 1848, and is 60 feet wide and 6 feet deep, and is capable of being navigated by vessels, which a canal of such size will accommodate, and which can thus pass from the Mississippi river to Lake Michigan and carry on interstate commerce, although the canal is wholly within the territorial bounds of the state of Illinois.

By the act of 1822, if the land granted thereby shall cease to be used for a canal suitable for navigation, the grant is to be void. It may properly be assumed that the district court found to be true the allegations of the libel, before cited, as to the character and employment of the two vessels, those allegations being put in issue by the answer.

Within the principles laid down by this court in the cases of The Daniel Ball, 10 Wall. 557, and The Montello, 20 Wall. 430, which extended the salutary views of admiralty jurisdiction applied in The Genesee Chief, 12 How. 443, The Hine v. Trevor, 4 Wall. 555, and The Eagle, S Wall. 15, we have no doubt of the jurisdiction of the district court in this case. Navigable water situated as this canal is, used for the purposes for which it is nised,-a highway for commerce between ports and places in different states, carried on by vessels such as those in question here,-is public water of the United States, and within the legitimate scope of the admiralty jurisdiction con. ferred by the constitution and statutes of the United States, even though the canal is wholly artificial, and is wholly within the body of a state, and subject to its ownership and control; and it makes no difference as to the jurisdiction of the district court that one or the other of the vessels was at the time of the collision on a voyage from one place in the state of Illinois to another place in that state. The Belfast, 7 Wall. 624. Many of the embarrassments connected with the question of the extent of the jurisdiction of the admiralty disappeared when this court held, in the case of The Eagle, ubi supra, that all of the provisions of section 9 of the judiciary act of September 24, 1789, c. 20, (1 St. 77,) which conferred admiralty and maritime jurisdiction upon the district courts, were inoperative, except the simple clause giving to them “exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction. That decision is carried out by the enactment in section 563 of the Revised Statutes, subd. 8, that the district courts shall have jurisdiction of "all civil causes of admiralty and maritime jurisdiction," thus leaving out the inoperative provisions.

This case does not raise the question whether the admiralty jurisdiction of the district court extends to waters wholly within the body of a state, and from which vessels cannot so pass as to carry on commerce between places in such state and places in another state or in a foreign country; and no opinion is intended to be intimated as to jurisdiction in such a case.

The prayer of the petition is denied.

(109 U. S. 651)

WINCHESTER & PARTRIDGE MANUFG Co. v. FUNGE.

(January 7, 1884.)

DEBTOR AND CREDITOR-PAYMENT IN WAGONS-ACCEPTANCE-DELIVERY IN PART.

For the purpose of settling a debt, the debtor gave to the creditor orders for 25

wigons, and the creditor gave to the debtor a written receipt, which he accepted, stating that the wagons were to be received in payment of the claim, provided they were delivered to the creditor in good condition and merchantable order, and that it was understood and agreed that if the wagons were so delivered in good condition they were to be sold for the highest prices that could be obtained for them, and the surplus, after paying the debt and cost of sell. ing, should be refunded to the debtor. Twenty-one of the wagons were delivered, but none of them were in good condition and merchantable order. The creditor sold 19 of them, and made ineffectual efforts to sell the other 2, and, after crediting the net proceeds of sale, sued the debtor to recover the balance of the debt. Held, that the receiving the 21 wagons and proceeding to sell them was an acceptance of them pro tanto in payment of the claim; that the contract for the payment in wagons was unfulfilled as to the 4 wagons not delivered; and that the price for which the 19 wagons were sold, and the selling value of the 2 not sold, had no bearing on the case, unless there was a surpius of the proceeds of sale to be refunded to the debtor under the contract.

Appeal from the Supreme Court of Utah Territory.

*652

F. S. Richards, for appellant.
E. D. Hoge, for appellee.

BLATCHFORD, J. *This is an appeal from the supreme court of Utah territory, in a suit brought in the First judicial district court of that territory, in March, 1882, by the appellant, a Wisconsin corporation, against the appellee, to recover the sum of $1,444.90, and interest from the filing of the complaint. The complaint contains two counts. The first sets forth that the appellee owed the appellant $2,832.40, for a balance of an account; that, for the purpose of settling such indebtedness, the appellee gave to the appellant's agents, on the twenty-eighth of October, 1880, six orders, on six different parties in Utah territory, for the delivery to such agents of wagons, 25 in number, the orders being severally for 1, 3, 2, 5, 9, and 5 wagons; that, at the same time, said agents executed and delivered to the appellee a receipt, which he accepted, as follows:

“Received from W. W. Funge orders on the respective parties named in the annexed list, for wagons therein mentioned, which wagons are to be received in payment of the claim of Winchester & Partridge Manufacturing Company against said Funge for twenty-eight hundred and thirty-two dollars and forty cents, provided the said wagons are delivered to said Winchester & Partridge Manufacturing Company, or their agents, W. W. Burton & Co., in good conditlon and merchantable order, at the respective places named in said orders, on presentation thereof; and it is understood and agreed that if: said wagons are so delivered in good condition and promptly, as aforesaid, they are to be sold to the best advantage and for the highest prices that can be obtained for them, and any surplus of the proceeds thereof that may remain after paying said debt of $2,832.40, and the actual and necessary cost of selling the same, is to be refunded to said Funge, unless prior to that time he shall have been paid two hundred dollars, ($200,) which he agrees, at their option, to take in lieu of said surplus, and in full settlement of his account with said company." -that 4 of the wagons covered by the order for 9 wagons were not delivered; that 21 of the wagons were delivered, but were none of them in good condition and merchantable order; and that the appellant had sold 19 of them for $1,807.43 net, and had made ineffectual efforts to sell the other 2. The second count sets forth an indebtedness of the appellee to the appellant of $2,832.40, for a balance of an account, in August, 1880, and a credit thereon of the net proceeds of certain wagons, leaving due $1,444.90, with interest from the filing of the complaint.

The appellee filed a demurrer, and alleged therein as a ground of demurrer to the complaint, and to each count separately, that it did not state facts sufficient to constitute a cause of action. The district court sustained the demurrer, and, the appellant electing to stand by its complaint, judgment was entered in favor of the appellee. The supreme court affirmed the judgment, and the case is here for review. We are of opinion that, on the terms of the receipt, which expressed the contract between the parties, the appellant, or its agents, were required to determine, on receiving the

wagons, whether they were in good condition and merchantable order, and were at liberty to reject them if not meeting those conditions; that the receiving the 21 and proceeding to sell them was an acceptance of the 21 in payment pro tanto of the claim; that the contract for the payment in wagons was unfulfilled as to the 4 wagons not delivered ; and that the price for which the 19 wagons were sold, and the selling value of the 2 not sold, have no bearing on the case under the first count, unless there be a surplus of the proceeds of sale, to be refunded to the appellee, under the contract.

As to the second count, it sets forth a good cause of action. That count does not involve, on its face, any question as to the contract evidenced by the receipt embodied in the first count.

The judgment of the supreme court is reversed, with direction to it to reverse the judgment of the district court, and to take or direct buch further proceedings in the suit as may be according to law and in conformity with this opinion.

(110 U. 8. 67)

SUSQUEHANNA Boom Co. and others v. WEST BRANCH Boom Co.

(January 7, 1884.)

SUPREME COURT OF THE UNITED STATES-JURISDICTION TO REVIEW JUDGMENTS

OF STATE COURT8.

The supreme court of the United States has no jurisdiction to review the judge

ment of a state court unless a federal question was clearly before the court when the judgment was rendered; and where, upon a motion for a rehearing by the state court after judgment, it is for the first time suggested that a constitutional question is involved, a refusal to allow the motion is not enough to give the federal court jurisdiction.

In Error to the Supreme Court of Pennsylvania. On motion to dismiss.

W. A. Wallace, for plaintiffs in error.
S. D. Ball, for defendant in error.

WAITE, C. J. The Susquehanna Boom Company was incorporated by the general assembly of Pennsylvania on the twenty-sixth of March, 1846, and as early as 1849 erected under its charter a boom in the west branch of the Susquehanna river, at Williamsport, for the purpose of securing logs and other lumber floating in the river. Its charter did not purport to confer upon it any exclusive rights to the use of the river above the boom for bringing logs down. On the twenty-sixth of March, 1849, the West Branch Boom Company was incorporated to construct and maintain a boom on the south side of the west branch at Lock Haven, about 25 miles above Williamsport. Under its charter this company was not allowed to extend its boom more than half way across the river, but it could “erect such piers,

89.

sidebranches, or sheer-booms as might be necessary. With this au- . thority a sheer-boom was constructed in the north half of the stream. This suit was begun in a state court of Pennsylvania to enjoin the West Branch Company from maintaining such a sheer-boom, on the ground that under its charter no such structure could be placed by it on the north side of the branch. The supreme court of the state, on appeal, decided that it could put in and maintain such a sheer-boom, and adjudged accordingly. To reverse that judgment this writ of error was brought. The West Branch Company now moves to dismiss the writ because no federal question is involved. It is clear to our minds that we have no jurisdiction. The constitution protects state corporations in such contracts with the state as their charters imply. The Susquehanna Company, whose rights are involved, was given full authority to erect and maintain its boom at Williamsport. That undoubtedly implied the right to use the river as others used it for bringing logs to the boom. The West Branch Company was also authorized to construct its boom in the south half of the river at Lock Haven, Whether it could under its chapter put a sheer-boom in the north balf, seems to have been a question with the Susquehanna Company, and this suit was brought to have that question settled. That is clearly all there was in the case up to the time of the final decision in the supreme court, whose judgment we are now called on to review. There is nowhere, either in the pleadings, the evidence, or the suggestions of counsel, prior to the judgment, so far as we have been able to discover, even an intimation that the Susquehanna Company claimed any contract right under its charter to exclude the West Branch Company from such use as that company was making of the north half of the stream. The only controversy, apparently, was about the right of the West Branch Company, under its charter, to such use at all. “Certainly," as was said in Brown v. Colorado, 106 U. S. 97, [S. C. 1 Sup. Ct. Rep. 175,] “if the judg. ment of the courts of the states are to be reviewed here on such, that is to say, federal, “questions, it should only be when it appears unmistakably that the court either knew, or ought to have known, that such a question was involved in the decision to be made.” The fact that on a petition for rehearing it was suggested that if the charter of the West Branch Company was so construed as to give it the right to maintain its sheer-boom in the north half of the stream, that charter would impair the obligation of the contract of the state with the Susquehanna Company, is unimportant here, because our jurisdiction extends only to a review of the judgment as it stands in She record. We act on the case as made to the court below when the judgment was rendered, and cannot incorporate into the record any new matter which appears for the first time after the judgment on a petition for rehearing. Such a petition is no part of the record on which the judgment rests.

The motion to dismiss is granted.

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