shall be the duty of the marshal "forthwith balance of the original deposit upon the ground that the Selma bank was at the time of the deposit a designated depositary of public money and was part of the Treasury of the United States, and that consequently a deposit in it was a payment into the Treasury of the United States, binding the latter to its return if the decision of the court should be against condemnation. To the contention the court answered by Chief Justice Waite: "The position assumed by the appellants is to our minds wholly untenable. The designated depositaries are intended as places for the deposit of the public moneys of the United States; that is to say, moneys belonging to the United States. No officer of the United States can charge the government with liability for moneys in his hands not public moneys by depositing them to his own credit in a bank designated as a depositary. In this case the money deposited belonged for the time being to the court, and From these provisions it will be seen was held as a trust fund pending the litigation. The United States claimed it, but their that the public moneys of the United States claim was contested. So long as this contest are the revenues of the United States from all remained undecided, the officers of the Treas- sources, and the gross amount received must ury could not control the fund. Although de-first be paid into the Treasury. §§ 3617 and posited with a bank that was a designated depositary, it was not paid into the Treasury. No one could withdraw it except the court or the clerk, and it was held for the benefit of whomsoever in the end it should be found to belong." But that case is claimed to be distinguished from the pending one because the "confisca tion act," "under which the Branch Case was decided, contained no provision for the deposit in the Treasury, pendente lite, of the proceeds of property seized, but not yet finally condemned. [181] In other words, the argument is that there was no provision in the "confiscation act," which required a deposit of the proceeds of the sale of property seized, and hence the deposit was the personal act of the officer, neither directed nor authorized by law, and did not charge the United States with responsibility, but that in the pending case, in pursuance of law, the deposit was virtually in the Treasury of the United States and became the property of the United States-"assets of the Treasury"-and subject, as public moneys are subject, to the use of the United States, and that the relation of debtor and creditor was created between the owner of the property sold and the United States. It is impracticable to quote all the provisions of law in regard to the deposit, keeping, and disbursement of the moneys of the United States. They will be found with a reference to the statutes of which they are the reproduction in the Revised Statutes of the United States, title XL., Public Moneys. It is sufficient to say that places of deposit of the public moneys *are provided, and the【】 "2] duty of the officers who receive and disburse them. 3618. They are then subject to the draft of They From this summary we may more clearly understand the particular provisions of law which were applicable to public depositaries at the time of the deposit in this case. were contained in the act of March 3, 1857 (11 Stat. at L. 249, chap. 114, § 3621, Rev. Stat.), and in § 45 of the general banking act (13 Stat. at L. 113, chap. 106, § 3620, Rev. Stat.). The first act provided that "every disbursing officer or agent of the United States, having any money of the United States intrusted to him for disbursement, shall be and he is hereby required to deposit the same with the Treasurer of the United States or with some one of the assistant treasurers or public depositaries, and draw for the same only in favor of the persons to whom payment is to be made in pursuance of law and instruc tions; except when payments are to be made in sums under twenty dollars, in which cases such disbursing agent may check in his own name, stating that it is to pay small claims." The second act provided that "all associa tions under this act, when designated for The argument concedes, and necessarily, that purpose by the Secretary of the Treas that there must have been authority or requirement of law for the deposit in this case. ury, shall be depositaries of public money. Was there such authority or requirement? except receipts from customs, under such It is claimed to have been contained in cer- regulations as may be prescribed by the Secre tain statutes of the United States which en-tary; they may also be employed as financial abled the Secretary of the Treasury to desig- agents of the government; and they shall nate national banks as public depositaries, and by the acts of March 3, 1863 (12 Stat. at L. 759, chap. 86), and June 30, 1864 (13 Stat. at L. 308, chap. 174). The latter acts respectively provided, with some difference of expression and detail, that "prize property" may be ordered sold by the Court pendente lite, and upon any sale it perform all such reasonable duties, as deposi taries of public moneys and financial agents of the government, as may be required of them. And the Secretary of the Treasury shall require of the associations thus desig nated satisfactory security, by the deposit of United States bonds and otherwise, for the safe-keeping and prompt payment of the pub 123 lic money deposited with them, and for the | Argued and Submitted October 27. 1899. De[183]faithful performance of their duties as ficided November 20, 1899. nancial agents of the government; provided, that every association which shall be selected [184] and designated as receiver or depositary of the public money shall take and receive at par all of the national currency bills by whatever association issued, which have been paid into the government for internal revenue or for loans or stocks." It was also provided by the act of August 6, 1846 (§ 3616, Rev. Stat.): "All marshals, district attorneys, and other persons than those mentioned in the preceding section, having public money to pay to the United States, may pay the same to any depositary constituted by or in pursuance of law, which may be designated by the Secretary of the Treasury." APPEAL from a judgment of the District The facts are stated in the opinion. Mr. C. D. O'Brien argued the cause and filed a brief for appellant: Habeas corpus is the appellant's proper Re Neagle, 135 U. S. 1, 34 L. ed. 55, 10 Mr. Edward Winterer argued the cause It is obvious from these provisions that it was only public money of the United States of which national banks could be made depositaries, and it was therefore only public The writ of habeas corpus is not a proceed. money which an officer could deposit in them, ing for the correction of errors, and cannot whether he received it originally or received be used as a substitute for a writ of error. it to disburse. This is the ruling in the Ex parte Lange, 18 Wall. 163, 21 L. ed. Branch Case, and it is clearly applicable to S72; Ex parte Siebold, 100 U. S. 371, 25 L. the case at bar. By the seizure of the Teres-ed. 717; Ex parte Curtis, 106 U. S. 371, 27 ita the title to her did not change nor the L. ed. 232, 1 Sup. Ct. Rep. 381; Ex parte title to the proceeds of her sale, pendente Royall, 117 U. S. 241, 29 L. ed. 868, 6 Sup. lite. That awaited adjudication, and what- Ct. Rep. 734; Re Frederich, 149 U. S. 70, 37 ever relations to such proceeds or responsi-L. ed. 653, 13 Sup. Ct. Rep. 793; Re Snow, bility for them the United States might have 120 U. S. 274, 30 L. ed. 658, 7 Sup. Ct. Rep.. assumed if they had been deposited with an 556; Stevens v. Fuller, 136 U. S. 468, 34 L. assistant treasurer, they did not become pub-ed. 461, 10 Sup. Ct. Rep. 911. lic money and subject to the statutes applicable to public money, and authorized to be deposited in a public depositary. In the absence of exceptional and urgent circumstances this question should be reviewed in the Supreme Court of the United States on a writ of error. New York v. Eno, 155 U. S. 89, 39 L. ed. It is not without significance that when Congress authorized "moneys paid into any court of the United States, or received by the S0, 15 Sup. Ct. Rep. 30; Bergemann v. Backofficers thereof, in any cause pending or ad-r, 157 U. S. 655, 39 L. ed. 845, 15 Sup. Ct. judicated in such court," to be deposited with a designated depositary, it required it to be done in the name and to the credit of such court," and not to the credit of the United States. Act of March 24, 1871 (17 Stat. at L. 1, chap. 2). Judgment affirmed. v. NORMAN MARKUSON, Appt., N. F. BOUCHER, Warden of the Penitentiary of North Dakota at Bismarck. (See S. C. Reporter's ed. 184-187.) Habeas corpus to review conviction in state court. Habeas corpus to review a judgment of a state court in a criminal case, on the ground that Rep. 727: Ex parte Royall, 117 U. S. 241, 29 L. ed. 868, 6 Sup. Ct. Rep. 734; Andrews v. Swartz, 156 U. S. 272, 39 L. ed. 422, 15 Sup. Ct. Rep. 389; Ex parte Fonda, 117 U. S. 516, 29 L. ed. 994, 6 Sup. Ct. Rep. 848; Re Duncan, 139 U. S. 449, 35 L. ed. 219, 11 Sup. Ct. Rep. 573; Re Wood, 140 U. S. 278, 35 L. ed. 505, 11 Sup. Ct. Rep. 738: Cook v. Hart, 146 U. S. 183, 36 L. ed. 934, 13 Sup. Ct. Rep. 40;. Re Frederich, 149 U. S. 70, 37 L. ed. 653, 13 Sup. Ct. Rep. 793; Pepke v. Cronan, 155 U. S. 100, 39 L. ed. 84, 15 Sup. Ct. Rep. 34; Tinsley v. Anderson, 171 U. S. 101, 43 L. ed. 91, 18 Sup. Ct. Rep. 805. *Mr. Justice McKenna delivered the[184] opinion of the court: On the 3d of January, 1898, the appellant presented a petition to the United States dis trict court for the district of North Dakota for a writ of habeas corpus. It alleged that the petitioner was confined, and had been since the 7th of December, 1897, in the state penitentiary of North Dakota, under and in pursuance of a "certain pretended committutionality of statute, see note to Hovey v. El-ment" issued by the district court of the fifth liott (N. Y.) 39 L. R. A. 449. [No. 77.] NOTE. As to habeas corpus to test consti As to jurisdiction of Federal courts on habeas corpus, see notes to Re Huse, 25 C. C. A. 4, and Tinsley v. Anderson, 43 L. ed. U. S. 92. judicial district of the state, in and for the county of Barnes, upon a "pretended judg ment and sentence" of said court in certain proceedings therein instituted on the relation of the assistant attorney general of the state, and by the terms of said judgment and sentence the petitioner was sentenced to be imprisoned in said state penitentiary for one jear. [185] *That petitioner appealed to the supreme art of the state, which court affirmed "in ail things the said judgment, conviction, and sentence," whereupon he was confined as aforesaid. That the proceedings "were had and carried on" under and pursuant to the provisions of § 7605 of the Revised Statutes of the state, and of other statutes of the state. edly decided the proper remedy was by writ It is not necessary to review the cases or to repeat or justify their reasoning. We lately stated the rule and the reasons for it in the cases of Baker v. Grice, 169 U. S. 284, 42 L. ed. 748, 18 Sup. Ct. Rep. 323, and in Tinsley v. Anderson, 171 U. S. 101, 43 L. ed. 91, 18 Sup. Ct. Rep. 805. In the latter, passing on an appeal from judgment dismissing a writ of habeas corpus, the chief justice said: "The dismissal by the circuit court of the United States of its own writ of habeas corpus was in accordance with the rule, repeatedly laid down by this court, that the circuit The petition further alleged that the said courts of the United States, while they have statutes violated the fifth and sixth articles power to grant writs of habeas corpus for the of the Amendments of the Constitution of the purpose of inquiring into the cause of reUnited States, and article 1 of the Fourteenth straint of liberty of any person in custody Amendment, in that they (the statutes) pro- under the authority of a state in violation of vide for the charging of a citizen with an in- the Constitution, a law, or a treaty of the famous crime and compel him to answer and United States, yet, except in cases of peculiar be punished therefor without a presentment urgency, ought not to exercise that jurisdic and indictment of a grand jury, and deprive tion by a discharge of the person in advance in a criminal prosecution the right of a trial of a final determination of his case in the by an impartial jury of the state and district courts of the state, and, even after such final wherein the crime was committed, and per-determination, will leave him to his remedy mit a conviction of one accused of crime with- to review it by writ of error from this court. out being confronted with the witnesses Ex parte Royall, 117 U. S. 241, 29 L. ed. 868, against him, and operate to abridge the 6 Sup. Ct. Rep. 734; Ex parte Fonda, 117 U. privileges and immunities of chuizens of the S. 516, 29 L. ed. 994, 6 Sup. Ct. Rep. 848; Re United States, and deprive them of liberty Frederich, 149 U. S. 70, 37 L. ed. 653, 13 Sup. and property without due process of law and Ct. Rep. 793; Pepke v. Cronan, 155 U. S. the equal protection of the laws, in that they 100, 39 L. ed. 84, 15 Sup. Ct. Rep. 34; Bergeprovide that in prosecutions thereunder a mann v. Backer, 157 U. S. 655, 39 L. ed. 845, conviction for the contempt of court may be 15 Sup. Ct. Rep. 727; Whitten v. Tomlinson, had without a trial by jury, whereas in all 160 U. S. 231, 40 L. ed. 406, 16 Sup. Ct. Rep. other criminal prosecutions persons accused 297; Baker v. Grice, 169 U. S. 284, 42 L. ed. are entitled to a jury trial; and, further, in 748, 18 Sup. Ct. Rep. 323." that under such proceedings a contempt of court is punishable as an infamous crime, whereas in all other proceedings a contempt of court is punishable as a misdemeanor. Petitioner further alleged that he was in "straitened circumstances, and without means or power to prosecute a writ of error from the supreme court of the state to the Supreme Court of the United States, or to employ counsel to present or argue it there, and is informed and believes if he had such means it could not be brought on for hearing before the expiration of his sentence." A writ of habeas corpus was prayed for and issued. On return and hearing it was discharged, and the petitioner remanded to custody. From the order remanding, this appeal was prosecuted, and the petitioner was admitted to bail to await the decision of the appeal. The rea In Baker v. Grice Mr. Justice Peckham said: "Instead of discharging they [the Federal courts] will leave the prisoner to be dealt with by the courts of the state; that after a final determination of the case by the state court the Federal courts will even then generally leave the petitioner to his remedy by writ of error from this court. son for this course is apparent. It is an exceedingly delicate jurisdiction given to the Federal courts by which a person under an laws may, by the decision of a single judge indictment in a state court and subject to its of the Federal court, upon a writ of habeas corpus, be taken out of the custody of the oftherefrom, and thus a trial by the state ficers of the state and finally discharged courts of an indictment found under the[187] laws of a state be finally prevented." The jurisdiction is more delicate, the reason against its exercise stronger, when a single judge is invoked to reverse the decision of the highest court of a state in which the constitutional rights of a prisoner could have been claimed and may be were rightly decided, or, if not rightly decided, could be reviewed and redressed by a writ of error from this court. In the brief of appellant's counsel, and also in that of the attorney general of the state, as well as in oral argument, the constitutional points raised were argued at length. We are not disposed to consider them. We have frequently pronounced against the re[188]view by habeas corpus of the judgments *of the state courts in criminal cases, because The case at bar presents no circumstances some right under the Constitution of the to justify a departure from the rule or to reUnited States was alleged to have been de lieve from the application of its reasons. Nor nied the person convicted, and have repeat-does the question arise what right appellant would have had to petition relief from the district court if his remedies against the judgment of the state court had ceased to exist. Judgment affirmed. †THE NEW YORK. (See S. C. Reporter's ed. 187-210.) 8. shall slacken her speed, or, if necessary, shall An obligated steamer proposing by whistle 9. The fault of a vessel will not preclude the Libel in admiralty for collision-cross-libel 1. 2. Judicial notice may be taken of the Cana dian act of 1886 for the regulation of navigation, which is in all material respects like the act of Congress of 1885. A Canadian statute used in the trial court by consent of counsel, and shown by affidavit to have been treated as part of the record, though not formally certified as such, but certified by the clerk to be a true copy of the act as published, in response to a writ of certiorari reciting that the statute had been introduced in evidence, and requiring the clerk to transmit a certified copy thereof to the circuit court of appeals, may be considered on a review of the decision by the Supreme Court of the United States on writ of certiorari. ber 20, 1899. N WRIT OF CERTIORARI to the United O`States Circuit Court of Appeals for the Sixth Circuit to review a decision reversing See same case below, 54 U. S. App. 248, 82 Statement by Mr. Justice Brown: This was a libel in admiralty filed by the Erie & Western Transportation Company, owner of the propeller Conemaugh, and a[189] cross-libel by the Union Steamboat Company, owner of the propeller New York, against the propeller Conemaugh, to recover damages for a collision between these vesThe rule that a steamer approaching ansels which occurred between 7 and 8 o'clock other vessel which has disregarded her sig in the evening of October 21, 1891, on the nals, or whose position or movements are uncertain, is bound to stop until her course be Canadian side of the Detroit river, a short ascertained with certainty, is peculiarly ap-distance below the village of Sandwich in piicable when a vessel going up a narrow river channel is about to meet a descending vessel upon cross courses, and signals of the latter are given three times without reply. 4 The failure of a vessel to see the lights of another vessel or hear signals blown by her on a clear night, when they are not more than a mile apart, is conclusive evidence of a defective lookout. the province of Ontario, and between what is known as Petite Côte, on the Canadian side, and Smith's Coal Shutes, on the American side, of the river. The river at this point is nearly straight, and flows in a direction about south-southwest. The underwriters of the cargo of the Conemaugh were permit. ted to intervene to protect their interests. 5. Failure to put the officers and crew of a she was bound from Milwaukee to Erie, Pa., The libel of the Conemaugh averred that vessel on the stand to explain why the lights of another vessel were not seen or her signals with a cargo of about 1,800 tons of package heard in a clear night, when the vessels were freight; that she was proceeding down the not more than a mile apart, greatly strength-river on the American side of mid-channel, ens the presumption of a defective lookout. The fact that a steamer is entitled to hold her course does not excuse her from attending to signals, from answering where an auswer is required, or from adopting such precautions as may be necessary to prevent a collision, in case there be a distinct indica 6. "having hauled some to starboard to avoid some piles driven in the channel," and known as the Kasota piles, and when half or threequarters of a mile above Smith's Coal Dock, she received a signal of two blasts from the steamer Burlington, which, with four barges in tow, had gone down the Canadian side of the river, and was then rounding to at the 7. The rule that every vessel, when approach-coal dock on the American side, exhibiting ing another so as to involve risk of collision, her masthead and green lights to the Cone†The docket title of this case is Erie & West- | 35 L. ed. U. S. 453; The Niagara, 28 C. C. A. ern Transportation Company et al., Petitioners, 532; The Mount Hope, 29 C. C. A. 368. V. Union Steamboat Company, Claimant of the Propeller New York. tion that the obligated steamer is about to fail in her duty. NOTE.--A8 to rules for avoiding collisions, see notes to St. John v. Paine, 13 L. ed. U. S. 537; Williamson v. Barrett, 14 L. ed. U. S. 68; The Abbotsford v. Johnson, 25 L. ed. U. S. 168; The E. A. Packer v. New Jersey Lighterag" Co. As to the signification of the signals of meeting vessels, see note to The New York, 30 C. C. A. 630. As to damages for collision where both res sels are at fault, see note to The City of Hartford v. Rideout, 24 L. ed. U. S. 930. As to presumption against a party from faiiure to produce evidence, see Cartier v. Troy Lumber Co. (III.) 14 L. R. A. 470 and note. maugh. Her engine was at once checked, | her quarter starboarded so as to go close unand remained checked until the time of the der her stern. *While passing under the[191] collision, her helm starboarded, the whistle stern of this barge, and not more than 10 or answered by two blasts, and the propeller 20 feet from her, several short blasts of a hauled out sharply, keeping some distance propeller, which proved to be the Coneabove the tow, and so directing her course as inaugh, were heard close at hand, and not to pass astern and to the Canadian side of more than 100 feet away. The Conemaugh the tow, which was then stretched out in the pursued her course directly across the bowa river toward that side; that the Conemaugh of the New York, which was then swinging then made the lights of the New York down under a hard-a-starboard helm. A collision the river below the tow, and coming up to was then inevitable, and there was neither ward the Conemaugh upon such a course time nor room enough to stop the engine of that the Conemaugh would cross the course the New York, and the only way left open to of the New York before the latter could avoid a collision was to continue under headreach the point of intersection; that the way and to swing clear under a hard-a-starConemaugh at once blew her a signal of two board helm. This was done. Notwithblasts, notifying the New York that she was standing this the Conemaugh, with considerso directing her course as to keep well in on able headway, continued on her course across the Canadian shore, and to leave the New the bows of the New York, so that the lat York to starboard as she should come abreast ter struck her, stem on, on the starboard side, abreast of her forward gangway, and glancing along this side was swung by the Conemaugh nearly alongside." The New York immediately backed, and offered her asthen on the bank she refused the assistance. sistance to the Conemaugh, but as she was That no other passing signal was heard from [190]of the tow. Receiving *no reply thereto, the Conemaugh repeated the signal of two blasts. The New York did not reply to this second signal, whereupon the Conemaugh blew a third signal of two blasts, when the New York, which had all the time been coming rapidly up the river, without replying to any of the Conemaugh's signals, turned suddenly and rapidly to starboard, swinging over any steamer after the exchange of the signal to the Canadian side; seeing which, the Cone of one blast with the Burlington, except the maugh blew alarm whistles and hardstar-signal of two short blasts from the Coneboarded her helm. But the New York, first swinging rapidly and violently to starboard, and apparently turning some to port before she struck, came on at full speed, struck the Conemaugh on the starboard side abreast the texas, cut deeply into her, and crushed her side. The Conemaugh almost immediately struck the Canadian bank of the river and filled and sank. maugh, and that when this was received the New York was close alongside of the last barge heading for the Canadian bank of the river, where no steamer could pass with safety, starboard to starboard. A large amount of testimony was intro duced on behalf of the libellant, but none A hearing upon whatever by the claimant. pleading and proofs before the district court resulted in a decree holding both vessels in the district judge expressed some doubt with fault and dividing the damages, although regard to the fault of the Conemaugh. 53 Fed. Rep. 553. Libellant soon thereafter moved for a rehearing upon the ground that the rules of the supervising inspectors had no application; that the International Rules adopted in 1885 governed the case, and asked leave to submit further testimony, and for other reasons. The answer and cross-libel of the New York averred that she was bound on a voy age from Buffalo to Milwaukee, laden with a cargo of general merchandise; that at the time of the collision she was bound up the Detroit river, and when near the point in said river below where the river Rouge empties into it, a steamer-the Burlingtonwith a tow of four barges began to round to from the Canadian side to Smith's Coal Dock on the American side, exhibiting to the New This was granted, and a new York her masthead and red side light, as decree entered vacating the former decree, well as the red side lights of the barges in and adjudging the New York to have been tow. To this the New York blew her a pass- solely in fault upon the ground that, under ing signal of one blast, "at the same time the case of The City of New York, 147 U. S.[192] checking her engine and reducing her speed 85, sub nom. Alexander v. Machan, 37 L. ed. to about 4 miles an hour, and then porting 90, 13 Sup. Ct. Rep. 211, then recently decidher helm so as to pass under the stern of the ed, the fault of the Conemaugh had not been last barge. When the New York had ar- proved with sufficient clearness to justify a rived at a point abreast of the last barge in division of damages. Thereupon the claimtow, a signal of two whistles was heard, but ant moved to vacate the decree and for leave being unable to see any vessel, and noticing to introduce evidence in its own behalf, which only a white light close on the Canadian was denied. This motion was repeated upon bank of the river, this signal of two blasts affidavits, and the deposition of the master, was not answered, as it seemed to be intend- second mate, and engineer of the New York ed for some other vessel, the New York being taken de bene esse under the statute. The then close to the Canadian bank, and there motion was, however, denied, the depositions not being room enough for any vessel to safe-stricken from the files, and a final decree enly pass between her and that bank. The tered against the New York for the damages New York therefore, still running slowly, and loss to the Conemaugh and her cargo. continued on her course so as to go around Thereupon the claimant appealed the cause close to the last barge, and when abreast of to the circuit court of appeals, and upon the |