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Appeal from the Distrit Courtoise less ern District of New York

Proceeding by loca l'Here for a waitas Que Te * order denying the writ 1:1 Federer Rest

O'Hare was arrested by the United States mansial in the city of Buffalo on a charge of violating sections 3346 3361, and $382. Rer St. U.S. Comp. St. 1901, pp. 3630, 3840), and the sets and statutes amendatory thereof. He was held by a United States comunioner for the action of the grand jury and wanted to the county jail Writs of habeas corpus and certior issued, and after a hear ing thereon were dissed. George H. KE

for appel John Lord O S Atty Before LACO

DXE, a

S Circuit Judges

was arrested at
Sec. 334E

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In the case of Cheuvont v, Homer, 62 W. "á 45, 53 S. E. 364, it is said:

"The adenos paliest on by Horner and his wife to robot the proanmotion of frand in the 120etar of the propery 39 the hisha nd in the wils par short of the that the verden is on the ute" abov by car and tistartorg * Cence what the transaction is made in 206 faith, the copriceration arte quate and 72inarie and that the monsideration was paid out of per separate

All the patimony on this site, and in relation on the Moyano of the besperty from hahands wile, ** $d to be the who gonorrain 2x 's me amount of money ma** o hace doen ingesies in the procenty of the vile, or to be of yestionare and softicions character. This testimony la whol.7 Inantement to meet the me that when a wie dalms in test azzinot the one of her husband to have purchasest peal state there is a prescimolon a zainst the bora iria of the transaction, which the carrot overcome ezert ng clear and 13. groot that the procerty w28 paid for by her with 7.61ey derino, rom me tri pogon Var man har buarana. Ma largo . 0.25! A *2. VO V, S., EVO; : 1. Timuona, 201 W Va, 441 2 & F 14 Am. se Birts, MPA,: *Cort 1. th. 34 W, V2. MO "2 %. F. *235;. and many other ares The main pariera ken to be made by this testimony on hai of the husband and with a tha', there, 12% a 7ot paroi arbement, at, ie ime of the page on the 50** 7, that the human was to hold it. In his name in toret for the whe, and be wie in het teatrimong ea 78 that this w24 ta qiz nim a better rating in begin om The 67.!7 sidence of surn serret trist 1x "hat the hustand and white This randot. GTGTCe tae presumption por prevait against the res, in ech case."

While there are wore zaterrents in the petition tending to show that, among other things, it is the claim of the petitioner that she is entitled to be streaders to the rights of the vendor, uon the theory that she paid the purchase munEJ, and that, therefore, she stoill be permitted to editore the colection of the monary due het under the original vendor's lien. This claim, however, is not serio 19ly in sister spear in tris curt, as we understand it; but if it were, we are inciner to the opinion that the en:cence is not suffcient to sustain such contention.

For the reason hereinbefore stated, we are of opinion that there is no error in the ruling of the cost beicw, and that the judgment of that court shoid be


Ex parte OHAPE.

(Croit soort of Appeas, 501610 Grenit. May 2, 1919.)

No. 241.


Waters incloeer in whole or in part by a breakwater or other artifdal structure to afford a proterte anchorade, as well as three va incloen] by natural land, constitute a "haven" within Hey, SL 333246, 5281, 6962 (C. (Ap. Kl 131, pp. 2831), 3Alj), making certain arts offenses against the United States when committed "ason the high wax, or in any art of the sea, or in any river, haven, Creek, baxin of tay within the ad

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"Sec. 5361. Every person who, upon the high seas, or in any arm of the sea, or in any river, haven, creek, basın or bay, within the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any particular state, by surprise or by open force, maliciously attacks or sets upon any vessel belonging to another, with an intent to unlawfully plunder the same, or to despoil any owner thereof of any moneyg, goods, or merchandise laden on board thereof shall be punished by a fine of not more than five thousand dollars, and by imprisonment at hard labor not more than ten years.

"Sec. 5362. Every person who, upon the high seas, or in any other of the places mentioned in the preceding section, with intent to commit any felony, breaks or enters any vessel, or maliciously cuts, spoils, or destroys any cordage, cable, buoys, buoy-rope, head-fast, or other fast fixed to the anchor or moorings belonging to any vessel, shall be punished by a fine of not more than one thousand dollars, and by imprisonment at hard labor not more than five years."

The acts complained of took place on the "John Mitchell," a steel steam vessel of 4,000 tons, belonging in whole or in part to citizens of the United States and registered and enrolled under the laws of the United States. She had been berthed for the winter in the Blackwell Canal, Buffalo, and on May 13, 1909, was towed by a tug to a point about 300 feet inside the old Buffalo breakwater, where she was anchored for the purpose of fitting her out. The alleged assault, etc., took place May 18th.

It will appear from the section quoted that the federal government entertains jurisdiction where the vessel is in a "haven," only when such haven is out of the jurisdiction of any particular state. This restriction “does not apply to vessels on the high seas of the lakes." U. S. v. Rodgers, 150 U. S. 249, 14 Sup. Ct. 109, 37 L. Ed. 1071. The question here presented is whether the "John Mitchell” was upon the high seas of Lake Erie, or in a haven connected therewith. No one disputes the fact that the state of New York has jurisdiction of the locus in quo.

From a point on the shore of the lake nearly opposite the westerly line of the city of Buffalo, there extends for about half a mile in a northerly direction the Stony Point Breakwater. Five hundred and fifty feet beyond it comes the South Breakwater, which runs, also northerly, nearly two miles. Two hundred and fifty feet beyond it comes the Old Breakwater which runs, also northerly, about a mile and a half, and ends opposite Buffalo Light at the entrance of Buffalo creek and the beginning of the Niagara river. These three structures practically constitute a single breakwater with entrances through it at two places to the waters inclosed between it and the shore. This structure is about 3,000 feet from the shore line and half that distance from what is designated on the government chart, published by the War Department in 1906, as the "Buffalo Harbor Line," which last is substantially a 17-foot line; there being deeper water between it and the breakwaters. The body of water thus inclosed is designated on the said chart as the "Outer Harbor" of Buffalo. Manifestly it affords an anchorage and refuge for shipping from westerly and southwesterly storms. The John Mitchell lay near the middle of the Old Breakwater about 300 feet in shore from it. A section from the chart shows the situation in detail:

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It is contended that, because the breakwater is an artifical structure, the water which it cuts off from the main body of Lake Erie cannot be considered a “haven” or a "basin” within the meaning of these sections. Sir Matthew Hale's definition of a "haven” is quoted, italicized as follows:

“A place of large receipt and safe riding of ships so situated and secured by the land circumjacent, that vessels thereby ride and anchor safely, and are protected by the adjacent land from dangerous and violent winds." Hale, De Jure Maris, c. 2, 2.

This definition is quoted verbatim in recent law dictionariesStroud, Burrill, Black, and Bouvier. We do not know to what extent, in Hale's time, harbors, havens, and basins had been artificially created. There does not seem to be any reasonable distinction be

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