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tion in the present case shows that the pretended authority by which the petitioner has been detained since his discharge is four certificates of the original convictions and sentences issued by the clerk on the seventeenth day of March, 1884, and sets up the said former discharge in bar of any further adjudication of the matters in that case. The return of the sheriff in the present case sets out said certificates as the authority by which only he holds the petitioner, and alleges substantially that he never was imprisoned in the county jail on the former certificates, but that by his request, he, the sheriff, had allowed and permitted bin to run at large in the village of Darlington during the whole time of said sentences, and alleges that the former discharge was no bar, because the commissioner had no jurisdiction of the case, and that it is absolutely void. It can be readily seen that this return undertakes to have the question whether the petitioner had actually suffered his full sentences before his discharge retried and redetermined upon the allegation of new facts only on the second writ of habeas corpus, which we have seen by the authorities cannot be done. That was the real and only question adjudicated by the commissioner, and it can be reviewed only by certiorari, and until reversed in that way is final. The real question here is whether the rearrest of the petitioner and his imprisonment on the same cause were lawful after such first discharge, and that question depends upon the question we have already examined, whether the commissioner had jurisdiction of the writ in that case; for it is not claimed that this court can, on this writ, go behind said judgment and correct the errors in the record. Not only is it clearly the law, but it is consonant with sound policy and reason, that one court or officer should not review or have the authority to reverse the judgment of discharge of another court or officer on habeas corpus. Under our statute, courts, and even this court, and a judge at chambers and court commissioners, have equal power and jurisdiction of the writ. The citizen should have a speedy and sure remedy and relief against unlawful imprisonment, and have the judgment conclusive. To secure this end the statute of prohibition under a penalty has been enacted.

But conceding that the first petition did show what is now shown on the return to this writ, that the sheriff had voluntarily allowed the petitioner to run at large during the whole of the aggregate term of the sentences, and that he had not been confined within. the jail at all during said term, would it then have been clearly shown that the term of his imprisonment had not in law expired? and if so, did such showing divest the commissioner of jurisdiction in the case to even decide that question wrongly or to decide it at all? If he had decided that under such facts the petitioner had not been imprisoned at all on the judgments and certificates, and had therefore remanded the prisoner, would there have been any question of his jurisdiction to so decide? That decision might have been right and the other wrong; but if a court or tribunal has jurisdiction to decide rightly, so it has to decide wrongly, and the error of it must in either case be corrected only by appeal, or on error, or on writ of certiorari. This is sufficiently clear by all the authorities. But is it so clear a question, or rather, is it so clear as not to be a question at all-that the petitioner, even according to the return to this writ, had not suffered and fulfilled his whole punishment by the sentences? Let us see, by a brief glance at the authorities, whether it may not be in some doubt, at least; although we do not pretend to decide the question, as in our view we have no right to decide it on this writ. The first sentence was that if the fine and costs were not paid forthwith, that he be imprisoned, etc. The term commenced then at once, for the fine and costs

were not paid. The certificates were at once issued and placed in the hands of the sheriff, and the defendant was in court. When a prisoner is sentenced to imprisonment, the day of the sentence is the first day of the term. Then he is, in legal contemplation, in a different custody from that of the court. Clifford's case, 44 Mo. 280. In this case the prisoner, after he was sentenced in one case, and during his imprisonment, was sentenced in another case for a term to begin when the first was ended. He was held after such first term was ended, and properly discharged on habeas corpus. If the time of the imprisonment is not fixed in the sentence it is void. State v. Smith, 10 Nev. 106; Ex parte Gibson, 31 Cal. 626.

In Wright v. State, 5 Ind. 290, the prisoner was on trial for murder, and during the trial the jury was discharged by the expiration of the term of court. On habeas corpus he was remanded, and it was held on certiorari that the judge had jurisdiction of the writ to discharge or remand and did right to remand him, because he might plead his first jeopardy in bar of another trial, and thereby be relieved from imprisonment.

In State v. McClure, Phil. Law (N. C), 492, the sentence was to pay a fine and costs, and be imprisoned until paid indefinitely. The sheriff allowed the prisoner to go at large on his parol. He did not pay, and the solicitor had him arrested on a ca. sa. On motion before the court he was discharged, and on writ of error or appeal the Supreme Court reversed the order; not on the ground that he was properly rearrested on the sentence and had been improperly discharged, but because he was arrested on a new process. Com. v. Keniston, 5 Pick. 420. The sentence was ten days' solitary confinement, and two years at hard labor on October 6, 1825. On October 26, 1827, he was sentenced to imprisonment for another crime. Held, that the second sentence was void because imposed before the first sentence had exired by limitation of time. The term of every sentence runs from its date. Prince v. State, 1 Am. Crim. Rep. 545. The day of the sentence is the first day of imprisonment, whether actually in prison or not, and it is presumed that he was. Whart. Crim. Pr. & Pl. 925.

In Migotti v. Colville, 14 Cox, C. C. 263, it was held that a sentence for one calendar month expires, by its limitation, on the day preceding that day which corresponds numerically in the next succeeding month, with the day on which the sentence was passed, and that the place in which the prisoner is to be confined is no part of the sentence and may be omitted. Weed v. People, 31 N. Y. 465; Whart. Crim. Pr. & Pl. 926. When the prisoner is sentenced to pay a fine and the costs, and be imprisoned until paid, and the prisoner is in court, he is in the custody of the officer under the sentence. 2 Barb. Crim. Law, 372, 376. These authorities would seem to make the question at least doubtful.

There is still another question arising from the cause of the failure of the actual imprisonment during the time or whole term of the sentence, of much importance, and that is, whether a prisoner can be re-arrested and imprisoned after such term has expired, when such failure was not the fault or crime of the prisoner himself.

In Ex parte Clifford, supra, it is held that a recapture after the term can be made only in case of escape by the fault of the prisoner or criminal escape. The right of recapture after the term depends upon whether the escape was the fault and wrong of the prisoner himself. 1 Chit. Crim. Law, 421; 1 Bish. Crim. Pl. 120--129.

In Hollon v. Hopkins, 21 Kans. 638, the prisoner escaped on his way to prison. He was recaptured after the three years of his sentence had expired, and it was

held lawful, because he failed to be imprisoned by his own wrong, and that unless such failure was so caused his sentence had expired by its own limitation.

In Clerk v. Com., supra, the prisoner escaped from prison. The time of his absence was added to his term, on the ground that he had not suffered his full imprisonment by his own fault and wrong.

And there is still another question, whether in any case, imprisonment after the term on a recapture, can be enforced without giving the prisoner the chance to be heard on a rule to show cause or some malice. This seems to have been the practice in all cases I have examined, Com. v. Huggerty, supra; State v. Addington, 2 Bailey, 51; State v. Smith, supra; State v. Chancellor, supra; State v. Cokeran, supra; and many others. But as said before, we do not decide these questions, for they are not before us, having found the commissioner had full jurisdiction to hear and decide them. They might be errors which could only be corrected on certiorari, but not on this writ.

The importance of the principles involved, and the able arguments made and the numerous authorities cited by the learned counsel, and the fact that two of my brethren dissent from this decision, must be my apology and excuse for writing such an unusually long opinion.

Section 4618, Rev. St. 1878, referring to offenses committed within one hundred rods of a county line, held, constitu tional.

A mere irregularity in commitment proceedings is insufficient
to authorize a prisoner's discharge on habeas corpus. Rev.
St. 1878, 3429.

A committing magistrate is not bound by law to make the
same docket entries that he must where he has jurisdie-
tion to try and determine a case; and, by a failure to state
that he adjourns a case at a certain time, at his office, he
does not lose jurisdiction.
ERTIORARI.

CERTI

The relator was arrested in Indiana upon a requisition issued by the governor of Wisconsin, upon a complaint in Justice Court, Columbia county, Wisconsin, charging him with embezzlement of property belonging to James Gowan, in that county, and brought into that county, where he was tried for that offense upon an information filed in the Circuit Court for that county, and acquitted upon the trial, and thereupon discharged by the court; that immediately thereafter and before he had time to leave the court-room, he was arrested upon a warrant issued by a justice of the peace of that county, upon a complaint for obtaining property, to wit, a horse, from Edward Lee by false pretenses, in that county, and was taken before a justice of the peace therein for examination, Dec. 29, 1883, and thereupon the justice adjourned the hearing, and entered such adjournment in his docket as follows: · December 29, 1883, 9 A. M. The witnesses for the

The return to the writ of habeas corpus in this case having been demurred to, we hold that the demurrer was well taken, and order that the same be sustained; and on the hearing of the petition and return, and duly considering the facts and records therein stated, 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 former case, is final and conclusive upon this court on this second writ on the same causes of detention, until reversed for errors therein; said commissioner having had jurisdiction of the writ, and lawful authority to determine whether the petitioner was held and imprisoned by the sheriff of La Fayette county, by lawful authority, on the causes of detention made to apappear before him, which are substantially the causes of his present imprisonment.

It is therefore ordered that the petitioner be and he is hereby discharged from further detention and imprisonment on the same causes thereof, and that he go hence without day.

Taylor and Cassoday, JJ., dissent.

EXTRADITION—ARREST AND TRIAL FOR AN-
OTHER OFFENSE.

WISCONSIN SUPREME COURT, MAY 15, 1884.*

STATE V. STEWART.

Where a prisoner has been extradited from one State to another on the requisition of the governor for a certain of fense, and has been tried, acquitted and discharged, he may be arrested and tried for another offense before he has an opportunity of returning to the State from which he was brought, in the absence of any compact between the States that this shall not occur; the prisoner, and not the State from which he was extradited, making the claim of violated rights.

Interstate extradition is distinguishable from extradition between nations.

The words "treason, felony or other crime," as used in the Constitution and laws of the United States, embrace every act forbidden and made punishable by a law of the State; and when obtaining money under false pretenses is a crime by the laws of a State (Rev St. 1878, § 4422) the offender is subject to interstate extradition. U. S. Const., §2, art. 4; U. S Rev. St., § 5278.

*19 N. W. Rep. 429.

til 1 o'clock P.M." At 1 o'clock P.M., the parties all being present, the justice proceeded with the examination, and afterward committed the defendant to the county jail of said county to await his trial. That whatever representations were made by the relator, constituting the false pretenses alleged, were made at Portage, in that county, and that thereafter the relator went to the county of Sauk, but within twenty rods of the boundary line between that county and Columbia county, and obtained the horse. While the relator was being so held by the sheriff on the last-mentioned charge, he was brought before Hon. Alva Stewart, judge of the Circuit Court for that county, on habeas corpus, and after hearing thereon he was ordered by that judge into the custody of the sheriff of Columbia county. To review that order this certiorari is brought.

Stroud, Armstrong & Stroud, for relator.

H. W. Chynoweth, assistant attorney-general, for respondent.

CASSODAY, J. 1. It is claimed that the arrest for the last offense was illegal, because it was made immediately after the relator had been tried, acquitted and discharged on the offense upon which he had been brought to the State from Indiana on the requisition of the governor, and before he had time to return. Treaty stipulations between nations frequently guarantee to the fugitive the right to leave the demanding country after the trial for the offense for which the fugitive has been surrendered, in case of acquittal, or in case of conviction after his endurance of the punishment. When not so guaranteed it is sometimes made the subject of executive pledge. Whart. Conf. Laws, §§ 835, 844, 846. It has been held that an extradited fugitive cannot be held in violation of such treaty or pledge to answer for any other offense than the one for which he had been surrendered. U. S. v. Watts, 14 Fed. Rep. 130; Com. v. Hawes, 13 Bush, 697. But in the absence of such treaty stipulation it has been held that there is no implied obligation to delay the arrest for such other offense. Adriance v. Lugrave, 59 N. Y.

110: U. S. v. Caldwell, 8 Blatchf. 131; U. S. v. Lawrence, 13 id. 295.

So it has been held to be no ground for releasing a prisoner who had escaped from the State into Canada and forcibly brought back to the State, and there arrested without the assent of the authorities of Canada. State v. Brewster, 7 Vt. 118; People v. Rowe, 4 Parker, Crim. 253; Dow's Case, 18 Penn. St. 37. Here no treaty stipulation to guarantee return is involved, and hence cases of international extradition arising under such treaties are not applicable. Ham v. State, 4 Texas App. 645.

This is a case of interstate extradition, and arises under the Constitution and laws of the United States. "A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime." Const. U. S., § 2, art. 4. The act of Congress is of the same import, and provides that a copy of an affidavit made before a magistrate of the State from whence the person so charged has fled, properly certified, shall be sufficient to authorize such demand, arrest and delivery. Ch. 198 Rev. St., and § 5278, U. S. Rev. St.

The act however is wholly silent as to any delay in arresting the prisoner upon any different charge after he has been acquitted, or after he has endured the pun. ishment for the offense for which he was extradited. It contains no provision securing to the fugitive any right of return. This distinction between international and interstate extradition seems to be very marked. True, the learned judge who wrote the opinion in Cannon's case, 47 Mich. 487; 11 N. W. Rep. 280, cited by counsel, said: "We do not perceive any ground for the distinction." But the difference between such treaty stipulations and the Constitution and laws of the United States was not even mentioned, and no authority was cited nor argument advanced to prove that there was none. On the contrary, the learned judge said: "We do not deem it necessary to refer at large to the decided cases which were cited on the hearing. They cannot be reconciled in principle, although very few of them would conflict with our views on so plain a case as the present." The learned judge and the court were evidently impressed with the features and circumstances of the arrest in that particu lar case which distinguished it from the cases there cited by counsel. It has frequently been held in effect however by courts of equal ability that a fugitive from justice extradited under the Constitution and laws of the United States, on the charge of the commission of a specific crime, and discharged therefrom, can be held by the courts of the State to which he is surrendered for another and entirely different crime.

In re

Noyes, 17 Alb. L. J. 407; In re Miles, 52 Vt. 609; Ham v. State, supra; Williams v. Bacon, 10 Wend. 636; Browning v. Abrams, 51 How. Pr. 172; Dow's Case, 18 Penn. St. 37.

The interstate extradition clause of the Constitution was never intended for the benefit of fugitives,nor to enable them to escape just punishment for their offenses. On the contrary, it was to secure the apprehension of any who should escape the jurisdiction wherein his offense had been committed. It was in effect a compact between the States upon a subject purely local, and as to which each would otherwise have been an independent Sovereignty, that in case any person charged with crime in one State fled into another, such other should, on demand of the executive of the former, cause him to be arrested and secured, if found therein, and delivered up to the agent of the former, to be removed to the State from which he so fled. It was, in effect, a pledge from every State to each of the others

incorporated into the organic law of the nation, that it would become, to a certain extent, an agency in the administration of the laws of every other State against treason, felony or other crime, as to all such criminals as should come within its borders. By it each State agreed not to willingly become a refuge for the criminals of any other, and not to allow any guilty person to go unpunished by its aid or connivance. This duty each State voluntarily assumed. The crime being committed, the offense properly charged, and the demand being properly made, the act of Congress referred to says "it shall be the duty of the executive authority of the State" to cause the fugitive to be arrested and secured, and to be delivered to the agent of the State from which he fled.

"The performance of this duty however," said Taney, C. J., "is left to depend on the fidelity of the State executive to the compact entered into with the other States when it adopted the Constitution of the United States and became a member of the Union. It was so left by the Constitution, and necessarily so left by the act of 1793. * **But if the governor of Ohio refuses to discharge this duty there is no power delegated to the general government, either through the judicial department or any other department, to use any coercive means to compel him." Kentucky v. Dennison, 24 How. 109. To the same effect, Taylor v. Taintor, 16 Wall. 370; Ex parte Virginia, 100 U. S. 347, 359; Ex parte Siebold, id. 391.

"But if he act," said Mr. Justice Swayne in Taylor v. Taintor, supra, "and the fugitive is surrendered, the State whence he is removed can no longer require his appearance before her tribunals, and all obligations which she has taken to secure that result thereupon at once, ipso facto, lose their binding effect." Thus it appears that the State demanding and the State delivering are each under a reciprocal duty to the other, the performance of which depends upon their respective fidelity to the mutual obligations resting upon them. But the State of Indiana 's not here complaining of any violation of duty, nor that any of its sovereign rights have been outraged. It is the fugitive who makes complaint, and in the name of Indiana asks that he may be restored to that State from which he was extradited. He does this under an agreement or compact between the two States, not made to secure his escape from punishment, but to insure his trial, notwithstanding he has fled the State, in case he is charged with a crime. Here the relator was extradited because he was so charged. For that offense he was tried, acquitted and discharged. The record discloses no executive pledge guaranteeing his return. After his discharge he was arrested for obtaining property under false pretenses. He now asked to be discharged, because he was not allowed time to return to Indiana before being arrested for the second offense.

In Cannon's case, supra, the prisoner was taken from Kansas to Michigan on a requisition of the governor of the latter State on the criminal charge of seduction committed in that State. On being thus brought into Michigan, he was taken before a justice of the peace December 12, 1881, on the warrant for the seduction, for examination. The hearing was adjourned for cause to December 27, 1881. Before the hearing, and while the prisoner was out on bail, to wit, December 16, 1881, the prosecuting attorney commenced bastardy proceedings for the same transaction involved in the previous complaint for seduction, and thereupon a warrant was issued and he was arrested December 17, 1881. To that charge he refused to plead. December 27, 1881, he was brought before the magistrate on the charge of seduction, which was at once discontinued on the admitted ground that it was not founded on any legal reasons. Thereupon the prisoner was released by the Supreme Court on habeas corpus from detention

in the bastardy proceedings. The court held that he was in legal duress at the time of the arrest in the bastardy proceedings, and in that the case is distinguishable from the one before us. The court also held in effect that bastardy was not such an offense as would have authorized extradition. If that was so, it was a strong and additional reason for holding the arrest illegal. U. S. v. Watts, supra. The court also intimated, if it did not hold, that the charge of seduction was resorted to without any legal ground therefor, and in bad faith, merely to get the prisoner within the State. Williams v. Bacon, supra. Here there is no intimation of any bad faith.

Whether obtaining property under false pretenses is a "crime" within the meaning of that word as used in the Constitution and laws of the United States is a question properly for consideration. It seems to be settled that the words "treason, felony or other crime," as there used, "embrace every act forbidden and made punishable by a law of the State. The word 'crime' of itself includes every offense, from the highest to the lowest in the grade of offenses, and includes what are called misdemeanors, as well as treason and felony." 24 How. 99; People v. Donohue, 84 N. Y. 438; Morton v. Skinner, 48 Ind. 123; In re Voorhees, 32 N. J. Law, 141. This rule was adopted by the present chief justice In re Cooper, 52 Wis. 701, 702, and is abundantly supported by the authorities there cited.

The obtaining of property under false pretenses is clearly a crime in this State (Rev. St., § 4422), and being so, there can be no question but that it is a crime withing the meaning of that word as used in the Constitution and laws of the United States.

It follows that the relator might have been again extradited had he been allowed to go to Indiana, after being discharged on the first offense. This being so, there seems to be no practical reason for holding the relator could not be legally arrested immediately upon the discharge from the first offense, instead of being allowed to escape the State and then brought back on requisition. Such an arrest in such a case was certainly not in violation of any law of the United States. It was not in conflict with any agreement between the States. It was no breach of any executive pledge. It was no interruption of any comity between the States. We must therefore hold that the arrest was not illegal by reason of any of the objections mentioned.

2. It is claimed that although the alleged misrepresentations were made in Columbia county, yet that the arrest was illegal because the property, when obtained, was twenty rods beyond the boundary line of that county. The statute provides that offenses committed within one hundred rods of the dividing line between two counties may be alleged in the information to have been committed in either of them, and may be prosecuted and punished in either county, and the court of either such county, whose process shall have been first served upon the defendant, shall have priority of jurisdiction. Rev. St. 1849, § 7, ch. 141; Rev. St. 1858, § 7, ch. 172; Rev. St., § 4618. It is urged that this statute is in conflict with the provision of the Constitution which secures to the accused the right "to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed, which county or district shall have been previously ascertained by law." Section 7, art. 1. This provision was embodied in the same title of the Revised Statutes of 1849 as the above section. Rev. St. 1849, § 2, ch. 132. Assuming that the obtaining of the property was essential to the completion of the offense, yet it was, in part at least, committed in the county of Columbia. Wilcox v. Nolze, 34 Ohio St. 520. This being so, the constitutional question involved is very

h like the one in State v. Pauley, 12 Wis. 537, where

it was held that a statute was constitutional which provided that if any mortal wound be given in one county, by means whereof death shall ensue in another county, the offense may be prosecuted in either county. Rev. St. 1849, § 8, ch. 141; Rev. St. 1858, § 8, ch. 172; Rev. St., § 4619. Both of "these sections," said the late chief justice, "were framed by very intelligent gentlemen, some of them being distinguished members of the bar, in the same year in which the Constitution was adopted,and they are plainly founded on the clause of the Constitution in question." In re Eldred, 46 Wis. 549; S. C., 1 N. W. Rep.175. Of course where the offense is partly committed in each county, and wholly in neither, as where it is committed right upon the line between two counties, there must be jurisdiction somewhere, and at common law it seems to have been in either county. 2 Whart. Crim. Law (7th ed.), § 2141.

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But assuming that the offense was committed at the place where the horse was obtained, and not where the representations were made, yet we are of the opinion that the courts of Columbia county had jurisdiction. These sections of the statutes having been adopted the same year as the Constitution, and the constitutional clause having been embodied in the same title with these sections by the revisers of the statutes of 1849, and the Legislature which adopted them, show pretty clearly that the words "or district" as used in this clause of the Constitution, were intended by the framers of that instrument, and understood by all at the time, to mean something different from the word county as therein used, especially when taken in connection with the words "which county or district shall have been previously ascertained by law." From this it appears to be competent for the Legislature to change the boundaries of the districts without changing the boundaries of the counties. For as observed by Ryan, C. J., in the case above cited, "the words 'county' or 'district,' as used in the clause, must bʊth be held to have a meaning and a use." 46 Wis. 548. Giving to each such distinct meaning and use, there seems to be no difficulty in holding that each criminal district, as ascertained by the laws now in force, extends 100 rods beyond the boundaries of each county.

Whether a juryman residing outside of the county, but within 100 rods of the county line, and hence within the district, would for that reason be incompetent, or a subject of peremptory challenge, is a question not here presented. "This very peculiar language" of the Constitution, said the late chief justice, "is obviously designed to avoid the difficulties which had arisen at the common law, without depriving the accused of trial by a jury of the vicinage." 46 Wis. 548. Of course no one would insist upon a construction which would require every juryman in every criminal case to be a resident of the very place where the crime was committed. On the contrary, most of them must necessarily reside quite remotely from such place. The constitutional right secured is that they shall be taken from "the county or district wherein the offense shall have been committed." This constitutional provision does not undertake to define or limit the jurisdiction of the courts over criminal offenses, but simply defines and limits the locality from which a jury must be taken for the trial of such offenses, and secures to him the right of a trial within the same limits. This bas been substantially held in Minnesota. State v. Robinson, 14 Minn. 453 (Gil. 333). See also Wheeler v. State, 24 Wis. 52. In Tennessee the words "or district" in a similar constitutional provision were treated, in view of their prior use, as a mere superfluity. Armstrong v. State, 1 Cold. 338. But for the same reason, we feel bound to give them significance. If the clause in question was intended to absolutely define and limit crim

Held, that as

inal jurisdiction, then there could be no change of in an action brought by it against S. venue 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 question is dealing with, and not the jurisdiction of the courts. It is found in the article on the "Declaration of Rights," and not in the article on "Judiciary." No clause of this last article, or any other, has been pointed out which seems to limit such criminal jurisdiction to the precise boundaries of the county, and we find none. On the contrary, the Constitution, in another article, speaks of each county of this State organized for judicial purposes " (§ 11, art. 7), clearly indicating that a county may be organized as a county, and yet not organized as such for judicial purposes. Accordingly there are several counties in the State organized for county purposes only, and yet each is attached to some other county for judicial purposes. The Constitution seems to leave such criminal jurisdiction almost wholly to be regulated by statute. We must therefore hold that the arrest was not illegal by reason of the property being obtained twenty rods outside of the boundaries of Columbia county; and that notwithstanding that fact, the courts of that county, under the statute referred to, had jurisdiction to prosecute and punish the offense of which the accused is charged.

3. It is claimed that because the committing magisings trate, on account of the absence of some of the witnesses on the part of the State, took a recess from 9 o'clock A. M. to 1 o'clock P. M. without stating that the case was adjourned to that time at his office, he thereby lost jurisdiction. To support this contention several civil cases are cited. We do not understand that these cases are at all applicable. We are not referred to any statute requiring a committing magistrate to make the same docket entries that he must in a case of which he has jurisdiction to hear, try and determine; and we are not aware of any case where the custody of a prisoner, on commitment in such case, has been held to be illegal merely because such entries have not been properly kept. The statutes regulating examination and commitments seem to have been complied with. Rev. St., ch. 195. Besides a mere irregularity in such commitment seems to be insufficient to authorize a discharge on habeas corpus. Rev. St., § 3429. The order remanding the prisoner is

Affirmed.

NEW YORK COURT OF APPEALS ABSTRACT.

CORPORATION-TRANSFER

OF STOCK-BY-LAWSREMEDIES-DEMAND THAT TRANSFERS BE MADE-AT

TACHMENT -A provision in the statute under which a corporation is organized, or in its by-laws, requiring transfers of its stock to be made upon its books, is for its benefit; and where the owner of stock has assigned and transferred, for a valuable consideration, the certificate issued to him, and the corporation, when requested to make the transfer, without a valid reason refuses to do so, this amounts to a waiver of the requirements, and the transfer is complete, and the corporation is bound to recognize the title of the assignee precisely the same as if it had done its duty and made the proper entries upon its books. S. being the owner of sixty-one shares of defendant's stock, which stood in his name upon its books, for a valid consideration sold the stock, and assigned the certificates to H., who presented them, with the assignment, to defendant, and demanded a transfer to himself upon its books; this was refused. H. thereafter sold and assigned the certificates to plaintiff. In an action to recover dividends declared upon the stock it appeared, that after notice of the trausfer to H., defendant caused the stock to be seized and sold under an attachment issued

purchaser, as to which quære, it did not affect the rights of plaintiff as against defendant; that it could not set up its own wrongful act to defeat his title, and that he was entitled to recover. Also held, that a demand of payment,or of a transfer of the stock to plaintiff before suit brought, was not necessary; that having refused to transfer to H. denied his ownership, and caused the stock to be sold as the property of S. No further request or demand was necessary on his part or that of his transferee who succeeded to his rights. H. had become the owner of the stock as against S. and as against the defendant. By the assignment and transfer of the certificates he had obtained the entire legal and equitable title. McNeil v. Teuth Nat. Bank, 46 N. Y. 331; 7 Am. Rep. 341. Of this fact the bank had notice, and it became its duty to make the transfer requested on the books. Its refusal was a wrong from which no right could spring. Thereafter the bank was bound to recognize H.'s title exactly as if it had done its duty and made the transfer on its books. The requirements of a registry, existing only for its own protection and convenience, must be deemed waived and non-essential when it wrongfully refuses to obey its own rule. Isham v. Buckingham, 49 N. Y. 220; Billv. Robinson, 94 id. 415. In Johnson v. Laflin, 17 Alb. L. J. 146, the United States Circuit Court said of a sale by transfer of the certificates, "that the transaction between Laflin and Britton was complete without registration of the transfer, and that it is equally complete as to the bank unless the bank had some valid reason for refusing to register the transfer." And such must necessarily be the rule unless the arbitrary consent or refusal of the bank is to determine the validity of a sale which it merely requires to be registered. As easily might it be said that the consent of a county clerk or register was essential to the operative force of an executed deed. While H. was ab solute owner as against the defendant, the latter sued S., and upon an attachment seized and sold H.'s stock, the Bank of Raleigh becoming the purchaser. It is not easy to see how that bank can be deemed a bona fide purchaser, or acquired any right in the property of H. by an attachment against S.; but assuming the possibility of such a result as flowing from the condition of the registry (Fisher v. Essex Bank, 5 Gray, 380), and yet it seems to us wholly immaterial what rights the Bank of Raleigh acquired, either as against the Bank of New Berne or as against H. No such question is here. What occurred, vested in H., as between him and the defendant, the entire legal and equitable title in the shares as perfectly as if the transfer demanded had been made. The defendant corporation cannot set up its own wrongful act to defeat the title which passed. After as well as before the sale to the Bank of Raleigh, Hope remained the owner as between him and the Bank of New Berne, and entitled to have and receive the dividends declared upon sixtyone shares, and what the bank did, or what obligations it incurred to the Bank of Raleigh in no respect altered its duty and liability to H. A further question is raised over the sufficiency of plaintiff's demand, which appears to have been for dividends amounting to $6,680, and so very much too large. The referee found upon the facts that no demand was necessary, and the General Term affirmed the conclusion. The point insisted upon is that the plaintiff was bound to demand a transfer to himself on the books of the bank, and which should be accompanied by notice of the transfer of the certificates to him. Why, when the bank had refused to transfer the stock to H. upon its books when he demanded it, his assignee should be compelled to repeat the same process in the face of that refusal, we are unable to see. H. would not have been bound to try

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