Gambar halaman

tion in the present case shows that the pretended au- were not paid. The certificates were at once issued thority by which the petitioner has been detained and placed in the hands of the sheriff, and the desince his discharge is four certificates of the original fendant was in court. When a prisoner is sentenced convictions and sentences issued by the clerk on the to imprisonment, the day of the sentence is the first seventeenth day of March, 1884, and sets up the said day of the term. Then he is, in legal contemplation, former discharge in bar of any further adjudication of in a different custody from that of the court. Clifford's the matters in that case. The return of the sheriff in

case, 44 Mo. 280. In this case the prisoner, after he the present case sets out said certificates as the au- was sentenced in one case, and during his imprisonthority by which only he holds the petitioner, and al- ment, was sentenced in another case for a term to leges substantially that he never was imprisoned in begin when the first was ended. He was held after the county jail on the former certificates, but that by such first term was ended, and properly discharged on bis request, he, the sheriff, had allowed and permitted habeas corpus. If the time of the imprisonment is not biu to run at large in the village of Darlington during fixed in the sentence it is void. State v. Smith, 10 Nev. the whole time of said sentences, and alleges that the 106; E. parte Gibson, 31 Cal. 626. former discharge was no bar, because the commis- In Wright v. Stute, 5 Ind. 290, the prisoner was on sioner had no jurisdiction of the case, and that it is trial for murder, and during the trial the jury was disabsolutely void. It can be readily seen that this re- charged by the expiration of the term of court. On turn undertakes to have the estion whether the pe- habeas corpus he was remanded, and it was held on titioner had actually suffered his full sentences before certiorari that the judge had jurisdiction of the writ to his discharge retried and redetermined upon the alle- discharge or remand and did right to remand him, begation of new facts only on the second writ of habeas cause he might plead his first jeopardy in bar of corpus, which we have seen by the authorities cannot another trial, and thereby be relieved from imprisonbe done. That was the real and only question ad- ment. judicated by the commissioner, and it can be reviewed In State v. McClure, Phil. Law (N. C), 492, the senonly by certiorari, and until reversed in that way is tence was to pay a fine aud costs, and be imprisoned final. The real question here is whether the rearrest until paid indefinitely. The sheriff allowed the prigof the petitioner and his imprisonment on the same oner to go at large on his parol. He did uot pay, and cause were lawful after such first discharge, and that the solicitor had him arrested on a ca. sa. On motion question depends upon the question we have already before the court he was discharged, and on writ of examined, whether the commissioner had jurisdiction error or appeal the Supreme Court reversed the order; of the writ in that case; for it is not claimed that this not on the ground that he was properly rearrested on court can, on this writ, go behind said judgment and the sentence and had been improperly discharged, but correct the errors in the record. Not only is it clearly because he was arrested on a new process. Com. v. the law, but it is consonant with sound policy and Keniston, 5 Pick. 420. The sentence was ten days' reason, that one court or officer should not review or solitary confinement, and two years at hard labor on hare the authority to reverse the judgment of dis- October 6, 1825. On October 26, 1827, he was sentenced charge of another court or officer on habeas corpus. to imprisonment for another crime. Held, that Under our statute, courts, and even this court, and a the second sentence was void because imposed before judge at chambers and court commissioners, have the first sentence had exired by limitation of time. equal power and jurisdiction of the writ. The citizen The term of every sentence runs from its date. Prince should have a speedy and sure remedy and relief v. State, 1 Am. Crim. Rep. 545. The day of the senagainst unlawful imprisonment, and have the judge tence is the first day of imprisonment, whether actument conclusive. To secure this end the statute of ally in prison or not, and it is presumed tbat he was. prohibition under a penalty has been enacted.

Whart. Crim. Pr. & Pl. 925. But conceding that the first petition did show what In Migotti v. Colville, 14 Cox, C. C. 263, it was held is now shown on the return to this writ, that the sher- that a sentence for one calendar month expires, by its iff had voluntarily allowed the petitioner to run at limitation, on the day preceding that day which corlarge during the whole of the aggregate term of the responds numerically in the next succeeding month, sentences, and that he had not been confined within. with the day on which the sentence was passed, and the jail at all during said term, would it then have that the place in which the prisoner is to be confined been clearly shown that the term of his imprisonment is no part of the sentence and may be omitted. Weed had not in law expired ? and if so, did such showing v. People, 31 N. Y. 465; Whart. Crim. Pr. & Pl. 9:26. divest the commissioner of jurisdiction in the case to When the prisoner is sentenced to pay a fine and the even decide that question wrongly or to decide it at costs, and be imprisoned until paid, and tbe prisoner all? If he had decided that under such facts the is in court, he is in the custody of the officer under petitioner had not been imprisoned at all on the judg- the sentence. 2 Barb. Crim. Law, 372, 376. These auments and certificates, and had therefore remanded thorities would seem to make the question at least the prisoner, would there have been any question of doubtful. his jurisdiction to so decide? That decision might have There is still another question arising from the been right and the other wrong; but if a court or tri- cause of the failure of the actual imprisonment during bunal has jurisdiction to decide rightly, so it has to the time or whole term of the sentence, of much imdecide wrongly, and the error of it must in either case portance, and that is, whether a prisoner can be re-arbe corrected only by appeal, or on error, or on writ of rested and imprisoned after such term has expired, certiorari. This is sufficiently clear by all the authori- when such failure was not the fault or crime of the ties. But is it so clear a question, or rather, is it so prisoner himself. clear as not to be a question at all-that the petitioner, In E.c parte Clifford, supra, it is held that a recaperen according to the return to this writ, had not suf- ture after the term can be made only in case of escape fered and fulfilled his whole punishment by the sen- by the fault of the prisoner or criminal escape. The tences? Let us see, by a brief glance at the authori- right of recapture after the term depends upon ties, whether it may not be in some doubt, at least; whether the escape was the fault aud wrong of the although we do not pretend to decide the question, as prisoner himself. 1 Chit. Crim. Law, 421; 1 Bish. Crim. in our view we have no right to decide it on this writ. Pl. 120--129. The first sentence was that if the fine and costs were In Hollon v. Hopkins, 21 Kans. 638, the prisoner esnot paid forthwith, that he be imprisoned, etc. The caped on his way to prison. He was recaptured after term commenced then at once, for the fine and costs the three years of his sentence had expired, and it was


held lawful, because he failed to be imprisoned by his Section 4618, Rev. St. 1878, referring to offenses committed owu wrong, and that unless such failure was so caused within one hundred rods of a county line, held, constituhis sentence had expired by its own limitation.

tional. In Clerk v. Com., supra, the prisoner escaped from A mere irregularity in commitment proceedings is insufficient prison. The time of his absence was added to his to authorize a prisoner's discharge on habeas corpus. Rer. term, on the ground that he had not suffered his full St. 1878, & 3429. imprisonment by his own fault and wrong.

A committing magistrate is not bound by law to make the And there is still another question, whether in any same docket entries that he must where he has jurisdiccase, imprisonment after the term on a recapture, can tion to try and determine a case; and, by a failure to state be enforced without giving the prisoner the chance to that he adjourns a case at a certain time, at his office, be be heard on a rule to show cause or some malice. This does not lose jurisdiction. seems to have been the practice in all cases I have ex- IERTIORARI. amined, Com. v. Huggerty, supru ; State v. Addington, 2 Bailey, 51; State v. Smith, supra; Stale v. Chancellor,

The relator was arrested in Indiana upon a requisisupra; State v. Cokeran, supra ; and many others. But

tion issued by the governor of Wiscousin, upon a comas said before, we do not decide these questions, for

plaint in Justice Court, Columbia county, Wisconsin, they are not before us, having found the commis

charging him with embezzlement of property belongsioner had full jurisdiction to hear and decide them.

ing to James Gowan, in that county, and brought into They might be errors which could only be corrected on

that county, where he was tried for that offense upon certiorari, but not on this writ.

an information filed in the Circuit Court for that The importance of the principles involved, and the

county, and acquitted upon the trial, and thereupon able arguments made and the numerous authorities

discharged by the court; that immediately thereafter cited by the learned counsel, and the fact that two of

and before he had time to leave the court-room, he my brethren dissent from this decision, must be my

was arrested upon a warrant issued by a justice of the apology and excuse for writing such an unusually long

peace of that county, upon a complaint for obtaining opinion.

property, to wit, a horse, from Edward Lee by false The return to the writ of habeas corpus in this case

pretenses, in that county, and was taken before a jushaving been demurred to, we hold that the demurrer

tice of the peace therein for examination, Dec. 29, 1883, was well taken, and order that the same be sustained; and thereupon the justice adjourned the hearing, and and on the hearing of the petition and return, and entered such adjournment in his docket as follows: duly considering the facts and records therein stated,

“ December 29, 1883, 9 A. M. The witnesses for the we hold that the judgment of discharge of the peti- | State not all being present, the court took a recess untioner, rendered by the court commissioner in the

til lo'clock P.M.” At1 o'clock P.M., the parties all being former case, is final and conclusive upon this court on

present, the justice proceeded with the examination, this second writ on the same causes of detention, until

and afterward committed the defendant to the county reversed for errors therein; said commissioner having

jail of said county to await his trial. That whatever had jurisdiction of the writ, and lawful authority to

representations were made by the relator, constituting determine whether the petitioner was held and im

the false pretenses alleged, were made at Portage, in prisoned by the sheriff of La Fayette county, by law

that county, and that thereafter the relator went to ful authority, on the causes of detention made to ap

the county of Sauk, but within twenty rods of the appear before him, which are substantially the causes

boundary line between that county and Columbia of his present imprisonment.

county, and obtained the horse. While the relator was It is therefore ordered that the petitioner be and he being so held by the sheriff on the last-mentioned is hereby discharged from further detention and im- charge, he was brought before Hon. Alva Stewart, prisonment on the same causes thereof, and that he judge of the Circuit Court for that county, on habeas go hence without day.

corpus, and after hearing thereon he was ordered by Taylor and Cassoday, JJ., dissent.

that judge into the custody of the sheriff of Columbia

county. To review that order this certiorari is EXTRADITION-ARREST AND TRIAL FOR AN


Stroud, Armstrong & Stroud, for relator.

H. W. Chynoweth, assistant attorney-general, for reWISCONSIN SUPREME COURT, MAY 15, 1884.* spondent.

CASSODAY, J. 1. It is claimed that the arrest for STATE V. STEWART.

the last offense was illegal, because it was made immeWhere a prisoner has been extradited from one State to an- diately after the relator had been tried, acquitted and

other on the requisition of the governor for a certain of- discharged on the offense upon which he had been fense, and has been tried, acquitted and discharged, he brought to the State from Indiana on the requisition may be arrested and tried for another offense before he of the governor, and before he had time to return. has an opportunity of returning to the State from which Treaty stipulations between nations frequently guarhe was brought, in the absence of any compact between

antee to the fugitive the right to leave the demanding the States that this shall not occur; the prisoner, and not country after the trial for the offense for which the futhe State from which he was extradited, making the claim gitive has been surrendered, in case of acquittal, or in of violated rights.

case of conviction after his endurance of the punishInterstate extradition is distinguishable from extradition be- ment. When not so guaranteed it is sometimes made tween nations.

the subject of executive pledge. Whart. Conf. Laws, The words "treason, felony or other crime,'' as used in the

$S 835, 844, 846. It has been held that an extradited Constitution and laws of the United States, embrace every fugitive cannot be held in violation of such treaty or act forbidden and made punishable by a law of the State; pledge to answer for any other offense than the one for and when obtaining money under false pretenses is a which he had been surrendered. U. S. v. Watts, 14 crime by the laws of a State (Rev. St. 1878, $ 4122) the of

Fed. Rep. 130; Com. v. Hawes, 13 Bush, 697. But in fender is subject to interstate extradition. U. 8. Const.,

the absence of such treaty stipulation it has been held 82, art. 4; U.S. Rev. St., 85278.

that there is no implied obligation to delay the arrest * 19 N. W. Rep. 429.

for such other offense. Adriance v. Lugrave, 59 X. Y.

110; U.S. v. Caldwell, 8 Blatchf. 131; U. S. v. Law- incorporated into the organic law of the nation, that it Tence, 13 id. 295.

would become, to a certain extent, an agency in the So it bas been held to be no ground for releasing a administration of the laws of every other State against prisoner who had escaped from the State into Canada treason, felony or other crime, as to all such criminals and forcibly brought back to the State, and there ar- as should come within its borders. By it each State rested without the assent of the authorities of Canada. agreed not to willingly become a refuge for the crimiState F. Breuster, 7 Vt. 118; People v. Rowe, 4 Parker, nals of any other, and not to allow any guilty person Crim. 253; Dow's Case, 18 Penu. St. 37. Here no treaty to go unpunished by its aid or connivance. This duty stipalation to guarantee return is involved, and hence each State voluntarily assumed. The crime being cases of international extradition arising under such committed, the offense properly charged, and the detreaties are not applicable. Ham v. State, 4 Texas mand being properly made, the act of Congress reApp. 645.

ferred to says “it shall be the duty of the executive This is a case of interstate extradition, and arises authority of the State" to cause the fugitive to be aruuder the Constitution and laws of the United States. rested and secured, and to be delivered to the agent “A person charged in any State with treason, felony, of the State from which he fled. or other crime, who shall flee from justice, and be "The performance of this duty however,” said found in another State, shall on demand of the execu- Taney, C. J., " is left to depend on the fidelity of the tive authority of the State from which he fled, be de- State executive to the compact entered into with the lirered up, to be removed to the State having juris- other States when it adopted the Constitution of the diction of the crime.'' Const. U. S., $ 2, art. 4. The United States and became a member of the Union. act of Congress is of the same import, and provides It was so left by the Constitution, and necessarily so tbat a copy of an affidavit made before a magistrate of left by the act of 1793. * * * But if the governor of the State from whence the person so charged has fled, Obio refuses to discharge this duty there is no power properly certified, shall be sufficient to authorize such delegated to the general government, either through demand, arrest and delivery. Ch. 198 Rev. St., and s the judicial department or any other department, to 5278, U. S. Rev. St.

use any coercive means to compel bim." Kentucky v. The act however is wholly silent as to any delay in Dennison, 24 How. 109. To the same effect, Taylor v. arresting the prisoner upon any different charge after Taintor, 16 Wall. 370; Ex parte Virginia, 100 U. S. 347, be has been acquitted, or after he has endured the pun. 359; Ex parte Siebold, id. 391. ishment for the offense for which he was extradited. “But if he act,” said Mr. Justice Swayne in Taylor It contains no provision securing to the fugitive v. Taintor, supra, “and the fugitive is surrendered, any right of return. This distinction between inter- the State whence he is removed can no longer require bational and interstate extradition seems to be very his appearance before her tribunals, and all obligations marked. True, the learned judge who wrote the opin- which she has taken to secure that result thereupon at ion in Cannon's case, 47 Mich. 487; 11 N. W. Rep. 280, once, ipso facto, lose their binding effect." Thns it apcited by counsel, said: "We do not perceive any pears that the State demanding and the State deliverground for the distinction." But the difference between ing are each ur.der a reciprocal duty to the other, the such treaty stipulations and the Constitution and laws performance of which depends upon their respective of the United States was not even mentioned, and no fidelity to the mutual obligations resting upon them.But authority was cited nor argument advanced to prove the State of Indiana !8 not here complaining of any viothat there was none. On the contrary, the learned lation of duty, nor that any of its sovereign rights have judge said: “We do not deem it necessary to refer at been outraged. It is the fugitive who makes comlarge to the decided cases which were cited on the plaint, and in the name of Iudiana asks that he may hearing. They cannot be reconciled in principle, al- be restored to that State from which he was extrathough very few of them would conflict with our views dited. He does this under an agreement or compact 01 so plain a case as the present.” The learned judge between the two States, not made to secure his escape and the court were evidently impressed with the fea- from punishment, but to insure his trial, notwithtures and circumstances of the arrest in that particu standing he has fled the State, in case he is charged lar case which distinguished it from the cases there with a crime. Here the relator was extradited becited by counsel. It has frequently been held in effect cause he was so charged. For that offense he was however by courts of equal ability that a fugitive from tried, acquitted and discharged. The record discloses justice extradited under the Constitution and laws of no executive pledge guaranteeing his return. After his the United States, on the charge of the commission of discharge he was arrested for obtaining property under a specific crime, and discharged therefrom, can be false pretenses. He now asked to be discharged, beheld by the courts of the State to which he is surrend- cause he was not allowed time to return to Inered for another and entirely different crime. In re diana before being arrested for the second offense. Voyes, 17 Alb. L. J. 407; In re Miles, 52 Vt. 609; Ham Iu Cannon's case, supra, the prisoner was taken v. State, supra; Williums v. Bacon, 10 Wend. 636; from Kansas to Michigan on a requisition of the Browning v. Abrams, 51 How. Pr. 172; Dow's Case, governor of the latter State on the criminal charge of 18 Penn. St. 37.

seduction committed in that State. On being thus The interstate extradition clause of the Constitution brought into Michigan, he was taken before a justice was never intended for the benefit of tugitives, nor to en. of the peace December 12, 1881, on the warrant for the able them to escape just punishment for their offenses. seduction, for examination. The hearing was adjourned On the contrary, it was to secure the apprehension for cause to December 27, 1881. Before the hearing, of any who should escape the jurisdiction wherein his and while the prisoner was out on bail, to wit, Decemoffense had been committed. It was in effect a compact ber 16, 1881, the prosecuting attorney commenced basbetween the States upon a subject purely local, and as to tardy proceedings for the same transaction involved in whicb each would otherwise have been an independent the previous complaint for seduction, and thereupon a sovereiguty, that in case any person charged with warrant was issued and he was arrested December 17, crime in one State fled into another, such other 1881. To that charge he refused to plead. December should, on demand of the executive of the former, 27, 1881, he was brought before the magistrate on the cause him to be arrested and secured, if found therein, charge of seduction, which was at once discontinued and delivered up to the agent of the former, to be re- on the admitted ground that it was not founded on moved to the State from which he so fled. It was, in any legal reasons. Thereupon the prisoner was released effect, a pledge from every State to each of the others by the Supreme Court on habeas corpus from detention ; in the bastardy proceedings. The court held that he it was held that statute was constitutional which was iu legal duress at the time of the arrest in the provided that if any mortal wound be given in one bastardy proceedings, and in that the case is distin- county, by means whereof death shall epsue in anguishable from the one before us. The court also held other county, the offense may be prosecuted in either in effect that bastardy was not such an offense as would county. Rev. St. 1849, $ 8, ch. 141; Rer. St. 1858, S. have authorized extradition. If that was so, it was a ch. 72; Rev. St., § 4619. Both of “these sections," strong and additional reason for holding the arrest il- said the late chief justice, “were framed by Fery in legal. U. S. y. Watts, supra. The court also inti

telligent gentlemen, some of them being distinguished mated, if it did not hold, that the charge of seduction members of the bar, in the same year in which the was resorted to without any legal ground therefor,and Constitution was adopted, and they are plainly founded in bad 'faith, merely to get the prisoner within the on the clause of the Constitution in question." In re State. Williams v. Bacon, supra. Here there is no Eldred, 46 Wis. 549; S.C., 1 N. W. Rep.175. Of course intimation of any bad faith.

where the offense is partly committed in each county, Whether obtaining property under false pretenses is and wholly in ueither, as where it is committed right a “crime" within the meaning of that word as used upon the line between two counties, there must be in the Constitution and laws of the United States is a jurisdiction somewhere, and at common law it seems question properly for consideration. It seems to be to have been in either county. ? Whart. Crim. Law settled that the words "treason, felony or other (7th ed.), S 2141. crime," as there used, " embrace every act forbidden But assuming that the offense was committed at the and made punishable by a law of the State. The word place where the horse was obtained, and not where the crime' of itself includes every offense, from the high- representations were made, yet we are of the opinioni est to the lowest in the grade of offenses, and includes that the courts of Columbia county had jurisdiction. what are called misdemeanors, as well as treason and These sections of the statutes having been adopted the felony." 24 How. 99; People v. Donohue, 84 N. Y. same year as the Constitution, and the constitational 438; Morton v. Skinner, 48 Ind. 123; In re Voorhees, 32 clause having been embodied in the same title with N. J. Law, 141. This rule was adopted by the present these sections by the revisers of the statutes of 1849, chief justice In re Cooper, 52 Wis. 701, 702, and is and the Legislature which adopted them, show pretty abundantly supported by the authorities there clearly that the words “or district” as used in this cited.

clause of the Constitution, were intended by the The obtaining of property under false pretenses is framers of that instrument, and understood by all at clearly a crime in this State (Rev. St., § 4422), and the time, to mean something different from the word being so, there can be no question but that it is a "county" as therein used, especially when taken in crime withing the meaning of that word as used in the connection with the words “which county or district Constitution and laws of the United States.

shall have been previously ascertained by law." From It follows that the relator might have been again ex- this it appears to be competent for the Legislature to tradited had he been allowed to go to Indiana, after change the boundaries of the districts without changbeing discharged on the first offense. This being so, ing the boundaries of the counties. For as observed there seems to be no practical reason for holding the by Ryan, C. J., in the case above cited, “the words relator could not be legally arrested immediately upon

'county' or 'district,' as used in tho clause, must both the discharge from the first offense, iustead of being be held to have a meaning and a use." 46 Wis. 548. allowed to escape the State and then brought back on

Giving to each such distinct meaning and use, requisition. Such an arrest in such a case was certainly there seems to be no difficulty in holding that each not in violation of any law of the Uuited States. It

criminal district, as ascertained by the laws now in was not in conflict with any agreement between the

force, extends 100 rods beyond the boundaries of each States. It was no breach of any executive pledge. It

county. was no interruption of any comity between the States.

Whether a juryman residing outside of the county, We must therefore hold that the arrest was not illegal

but within 100 rods of the county line, and hence by reason of any of the objections mentioned.

within the district, would for that reason be incompe2. It is claimed that although the alleged misrepro- tent, or a subject of peremptory challenge, is a quessentations were made iu Columbia county, yet that tion not here presented. “This very peculiar lanthe arrest was illegal because the property, when ob- guage" of the Constitution, said the late chief justice, tained, was twenty rods beyond the boundary line of " is obviously desigued to avoid the difficulties which that county. The statute provides that offenses com- bad arisen at the common law, without depriving the mitted within oue hundred rods of the dividing line accused of trial by a jury of the vicinage." 46 Wis. 548. between two counties may be alleged in the informa

Of course no one would insist upon a construction tion to have been committed in either of them, and

which would require every juryman in every criminal may be prosecuted and punished in either county, and case to be a resident of the very place where the crime the court of either such county, whose process shall was committed. On the contrary, most of them must have been first served upon the defendant, shall have

necessarily reside quite remotely from such place. The priority of jurisdiction. Rev. St. 1849, § 7, ch. 141; constitutional right secured is that they shall be taken Rev. St. 1858, $ 7, ch. 172; Rev. St., $ 4618. It is urged from “ the county or district wherein the offense shall that this statute is in conflict with the provision of have been committed.” This constitutional provision the Constitution which secures to the accused the

does not undertake to define or limit the jurisdiction right “ to a speedy public trial by an impartial jury of

of the courts over criminal offenses, but simply defines the county or district wherein the offense shall have

and limits the locality from which a jury must be been committed, which county or district shall have

taken for the trial of such offenses, and secures to him been previously ascertained by law.” Section 7, art. 1.

the right of a trial within the same limits. This bas This provision was embodied in the same title of the

been substantially held in Minnesota. State v. RobinRevised Statutes of 1849 as the above section. Rev. St.

son, 14 Minn. 453 (Gil. 333). See also Wheeler v. State. 1849, $ 2, ch. 132. Assuming that the obtaining of the 24 Wis. 52. In Tennessee the words “or district" in 3 property was essential to the completion of the offense,

similar constitutional provision were treated, in view yet it was, in part at least, committed in the county of

of their prior use, as a mere superfluity. Armstrong r. Columbia. Wilcox v. Nolze, 34 Ohio St. 520. This

State, 1 Cold. 338. But for the same reason, we feel being so, the constitutional question involved is very bound to give them significance. If the clause in quesmuch like the one in State v. Farley, 12 Wis. 537, where tion was intended to absolutely define and limit crim.

inal jurisdiction, then there could be no change of in an action brought by it against S. Held, that agrevue even on behalf of the prisoner. It is the “right suming the purchaser could be deemed a bona fide of the “accused" that the constitutional clause in purchaser, as to which quere, it did not affect the rights question is dealing with, and not the jurisdiction of of plaintiff as against defendant; that it could not set the courts. It is found in the article on the “ Declara- up its own wrongful act to defeat his title, and that he tion of Rights," and not in the article on “Judiciary." was entitled to recover. Also held, that a demand of No clause of this last article, or any other, has been payment,or of a transfer of the stock to plaintiff before pointed out which seems to limit such criminal juris- suit brought, was not necessary; that having refused diction to the precise boundaries of the county, and to transfer to H. denied his ownership, and caused the we find none. On the contrary, the Constitution, in stock to be sold as the property of S. No further reanother article, speaks of each county of this State or- quest or demand was necessary on his part or that of ganized for judicial purposes” ($ 11, art. 7), clearly in- his transferee who succeeded to his rights. H. had dicating that a county may be organized as a county, become the owner of the stock as against S. and as and yet not organized as such for judicial purposes. Ac-against the defendaut. By the assignment and transcordingly there are several counties in the State organ- fer of the certificates he had obtained the entire legal ized for county purposes only, and yet each is attached and equitable title. McNeil v. Teuth Nat. Bank, 46 to some other county for judicial purposes. The Con- N. Y. 331; 7 Am. Rep. 341. Of this fact the bank had stitution seems to leave such criminal jurisdiction al- Dotice, and it became its duty to make the transfer remost wholly to be regulated by statute. We must there quested on the books. Its refusal was a wrong from fore hold that the arrest was not illegal by reason of which no right could spring. Thereafter the bank was the property being obtained twenty rods outside of the bound to recognize H.'s title exactly as if it had done boundaries of Columbia county; and that notwith- | its duty and made the transfer on its books. The restanding that fact, the courts of that county, uuder quirements of a registry, existing only for its own prothe statute referred to, had jurisdiction to prosecute tection and convenience, must be deemed waived and and panish the offense of which the accused is non-essential when it wrongfully refuses to obey its charged

own rule. Isham v. Buckingham, 49 N. Y. 220; Bill3. It is claimed that because the committing magis- | ings v. Robinson, 94 id. 415. In Johnson v. Laflin, 17 trate, on account of the absence of some of the wit- Alb. L. J. 146, the United States Circuit Court said of Desses on the part of the State, took a recess from 9 a sale by transfer of the certificates, “ that the transo'clock A. M. to 1 o'clock P. M. without stating that the action between Laflin and Britton was complete withcase was adjourned to that time at his office, he thereby out registration of the transfer, and that it is equally lost jurisdiction. To support this contention several complete as to the bank unless the bank had some civil cases are cited. We do not understand that these valid reason for refusing to register the transfer." cases are at all applicable. We are not referred to any And such must necessarily be the rule unless the arbistatute requiring a committing magistrate to make the trary consent or refusal of the bank is to determine same docket entries that he must in a case of which the validity of a sale which it merely requires to be be has jurisdiction to hear, try and determine; and we registered. As easily might it be said that the conare not aware of any case where the custody of a pris- sent of a county clerk or register was essential to the oner, on commitment in such case, has been held to operative force of an executed deed. While H. was ab be illegal merely because such entries have not been solute owner as against the defendant, the latter properly kept. The statutes regulating examination sued S., and upon an attachment seized and sold H.'s and commitments seem to have been complied with. stock, the Bank of Raleigh becoming the purchaser. Rev. St., ch. 195. Besides a mere irregularity in such It is not easy to see how that bank can be deemed a commitment seems to be insufficient to authorize a bona fide purchaser, or acquired any right in the propdischarge on habeas corpus. Rev. St., $ 3429.

erty of H. by an attachment against S.; but assuming The order remanding the prisoner is

the possibility of such a result as flowing from the Affirmed. condition of the registry (Fisher v. Essex Bank, 5

Gray, 380), and yet it seerns to us wholly immaterial NEW YORK COURT OF APPEALS ABSTRACT. against the Bank of New Berne or as against H. No

what rights the Bank of Raleigh acquired, either as

such question is here. What occurred, vested in H., CORPORATION

STOCK - BY-LAWS- as between him and the defendant, the entire legal and REMEDIES-DEMAND THAT TRANSFERS BE MADE-AT- equitable title in the shares as perfectly as if the transTACHMENT -A provision in the statute under which a fer demanded had been made. The defendant corpocorporation is organized, or in its by-laws, requiring ration cannot set up its own wrongful act to defeat the transfers of its stock to be made upon its books, is for title which passed. After as well as before the sale to its benefit; and where the owner of stock has assigned the Bank of Raleigh, Hope remained the owner as beand transferred, for a valuable consideration, the cer- tween him and the Bank of New Berne, and entitled tificate issued to him, and the corporation, when re- to have and receive the dividends declared upon sixtyquested to make the transfer, without a valid reason one shares,and what the bank did, or what obligations refuses to do so, this amounts to a waiver of the re- it incurred to the Bank of Raleigh in no respect altered quirements, and the transfer is complete, and the cor- its duty and liability to H. A further question is poration is bound to recognize the title of the assignee raised over the sufficienoy of plaintiff's demand, which precisely the same as if it had done its duty and made appears to have been for dividends amounting to $6,680, the proper entries upon its books. S. being the owner and so very much too large. The referee found upon of sixty-one shares of defendant's stock, which stood the facts that no demand was necessary, and the Genin his name upon its books, for a valid consideration eral Term affirmed the conclusion. The point insisted sold the stock, and assigned the certificates to H., who upon is that the plaintiff was bound to demand a transpresented them, with the assignment, to defendant, fer to himself on the books of the bank, and which and demanded a transfer to himself upon its books; should be accompanied by notice of the transfer of the this was refused. H. thereafter sold and assigned the certificates to bim. Why, when the bank had refused certificates to plaintiff. In an action to recover divi- to transfer the stock to H. upon its books when he dedends declared upon the stook it appeared, that after manded it, his assignee should be compelled to repeat notice of the transfer to H., defendant caused the the same process in the face of that refusal, we are unstock to be seized and sold under an attachment issued able to see. H. would not have been bound to try



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