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to warrant commitment; In re Veremaitre, 28 Fed. Cas. 1149. re. manding prisoner for extradition where warrant of commissioner prima facie sufficient; Peltier v. Pennington, 14 N. J. L. 318, remanding prisoner, where original warrant irregularly issued; Ex parte Mooney, 26 W. Va. 39, 53 Am. Rep. 61, holding that where person is imprisoned under sentence, part of which is invalid, he will not be discharged until legal portion of sentence has been served.

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Treason - Levying war.- A conspiracy to subvert the government by force is not treason; war must actually be levied, p. 126.

Cited in United States v. Hanway, 2 Wall. Jr. 202, F. C. 15,299, defining treason in charge to jury; affirmed in United States v. Burr, 25 Fed. Cas. 165, where same facts involved as in principal case; State v. McDonald, 4 Port. 463, applying principle in holding that to make a free person guilty of encouraging a rebellion of slaves there must be proof of actual rebellion. See also note. 94 Am. Dec. 580. Cited arguendo in dissenting opinion, Luther V. Borden, 7 How. 81, 12 L. 615; United States v. O'Sullivan, 27 Fed. Cas. 378.

Treason - Levying war.-. If a body of men be actually assembled for the purpose of subverting the government by force, all who perform a part, however minute and however remote from the scene of action, are traitors, p. 126.

Cited and principle applied in United States v. Athens Armory, 2 Abb. (U. S.) 146, F. C. 14,473 (see 35 Ga. 360), holding property used for purpose of manufacturing arms for Confederate government liable to confiscation; United States v. Greathouse, 2 Abb. 373, 4 Sawy. 467, F. C. 15,254, defining treason in charge to jury on in. dictment for fitting out vessel to aid rebel government; Lawson v. Miller, 44 Ala. 625, 4 Am. Rep. 149; Hill v. Edwin, 44 Ala. 667, 668; Latham v. Clark, 25 Ark. 579, holding Confederate government to have been treasonable in origin, hence notes issued by it could not constitute valid consideration for contract; State v. Larkin, 49 N. H. 43, holding remote acts done in aid of conspiracy renders person conspirator; Druecker v. Salomon, 21 Wis. 626, 94 Am. Dec. 575, holding persons remotely connected with concerted attempt to resist execution of draft, guilty of levying war. See also note, 94 Am. Dec. 581. Cited arguendo in Sparf v. United States, 156 U. S. 66, 39 L. 349, 15 S. Ct. 279, discussing subject of evidence of accomplices; Noble v. Cullom, 44 Ala. 562, maintaining invalidity of judg. ments rendered by courts in insurrectionary States; Anderson r. Baker, 23 Md. 625, enumerating crimes defined in State Constitution.

Distinguished in Young v. United States, 97, U. S. 65, 24 L. 999. as to nonresident alien; Charge to Federal Grand Jury by Sprague, J., 1 Sprague, 594, F. C. 18,263, holding action of mob in interrupting proceedings of court and rescuing fugitive slave not to constitute levying war."

Practice.- An affidavit made before one magistrate may justify a commitment by another, p. 129.

Cited and principle applied in In re Kaine, 14 Fed. Cas. 90, holding that district judge awarding writ of habeas corpus may make it returnable before Circuit Court; In re Metzger, 17 Fed. Cas. 235, in extradition proceedings, committing prisoner on affidavits made in foreign court, and duly authenticated; In re Alexander, 1 Low. 531, F. C. 162, where person was arrested in one judicial district for crime committed against Federal laws in another district, and certified copy of indictment found in latter held admissible in evidence.

Jurisdiction.- Trial of offenses against the laws of the United States, committed without the jurisdiction of any State or district, shall be held in the district where the offender is found or into which he is first brought, p. 136.

Cited and principle applied in Jones v. United States, 137 U. S. 212, 34 L. 695, 11 S. Ct. 83, extending principle to crime of murder committed upon Guano Islands, previously declared to be United States territory; United States v. Bird, 1 Sprague, 300, F. C. 14,597, sustaining indictment for violation of anti-slavery laws upon high seas; United States v. Baum, 74 Fed. 46, as to adultery committed in territory, holding offense punishable in territorial court.

Certiorari.- In this case the writ of habeas corpus was accom. panied by a writ of certiorari.

Cited as precedent in In re Martin, 5 Blatchf. 306, 308, F. C. 9,151, reviewing commitment by commissioner to await action of Federal grand jury; In re Snell, 31 Minn. 111, 16 N. W. 692, issuing writ to examine record of court, prisoner to answer on criminal charge.

Miscellaneous citations.- Cited also in Holmes V. Jennison, 14 Pet. 628, 10 L. 627, as instance of practice on awarding writ; dissent. ing opinion, Luther v. Borden, 7 How. 87, 12 I. 618, on point that writ of habeas corpus is in force during insurrection as well as peace, unless suspended by competent authority; Ex parte Terry, 128 U. S. 303, 32 L. 408, 9 S. Ct. 79 (see also 13 Sawy. 462), and United States v. New Bedford Bridge, 1 Wood. & M. 440, F. C. 15,867, on point that Federal courts have power to punish for contempt (not directly decided in principal case); Johnson v. Tompkins, 1 Bald. 594, F. C. 7,416, citing argument of counsel to effect that accused in criminal proceedings has right to be confronted with witnesses against him. The following cases cite the principal case as authority for holding that the privilege of the writ of habeas corpus can be suspended only by authority of congress; Ex parte Field, 5 Blatchf. 82, F. C. 4,761; Ex parte Merryman, Taney, 267, F. C. 9,487; Ex parte Benedict, 3 Fed. Cas. 168, 171. Cited in Dunlop v. Monroe, 1 Cr. C. C. 541, F. C. 4,167, on point that parol evidence is admissible to show authority of person taking deposition (application doubtful); In re Dana, 68 Fed. 894, as to practice in taking testimony in ex parte proceeding; so also in In re Bates, 2 Fed. Cas. 1018; Hussey v. State, 87 Ala. 126, 6 So. 421, on point that where affidavits are presented in support of change of venue counter affidavits may be received; Johnson v. Duncan, 3 Mart. (La.) (O. S.) 533, 6 Am. Dec. 676, as to suspension of writ of habeas corpus; Swan v. Gray, 44 Miss. 392, on point that acts of de facto officer will be deemed valid as regards third persons (application doubtful). Erroneously cited in Little v. Chauvin, 1 Mo. 632. Cited in Girard v. Taggart, 5 Serg. & R. 35, as holding that courts are not precluded from examining into the correctness of their previous decisions; State v. Frew, 24 W. Va. 437, 49 Am. Rep. 258. and State v. Tugwell, 19 Wash. 252, 52 Pac. 1061, on point that courts have power to punish for contempt.

4 Cr. 137–141, 2 L. 574, SKILLERN'S EXRS. v. MAY'S EXRS.

Judgment.- Equity will enjoin a judgment at law based on an obligation to convey lands, to which the obligor has retained the legal title, and part of which have been lost through obligor's neglect to pay taxes, pp. 140, 141.

Cited in Tufts v. Tufts, 3 Wood. & M. 475, 503, F. C. 14,233, as to contract for sale of land where vendee has failed to pay any part of purchase price; Smith v. Robertson, 23 Ala. 318, as to contract for sale of land where defect in vendor's title.

Distinguished in Buford v. Bird, 8 Mo. 243, where action not in equity.

4 Cr. 141-164, 2 L. 576, FRENCH v. BANK OF COLUMBIA.

Negotiable paper.- Accommodation indorser is entitled to have demand on maker and notice, p. 161.

Cited and applied in dissenting opinion, Magruder v. McDonald, 3 Cr. C. C. 310, F. O. 8,965; Ramdulollday v. Darieux, 4 Wash. 63, F. C. 11,543, as to indorser of bill of exchange, where drawer not entitled to notice; Phipps v. Harding, 70 Fed. 478, 34 U. S. App. 148, holding insolvency no excuse for failure of notice; so also in Adams v. Torbert, 6 Ala. 868; followed in Holland v. Turner, 10 Conn. 315; Hill v. Martin, 12 Mart. (La.) (O. S.) 182, 184, 13 Am. Dec. 375, as to note indorsed after maturity; Hilton v. Smith, 5 Gray, 401; Ferris v. Saxton, 4 N. J. L. 21, and in Bogy v. Keil, 1 Mo. 743, under facts similar to those in principal case; applied in Brown v. Mott, 7 Johns. 362, holding further as to liability of indorser; Agan v. McManus, 11 Johns. 182, holding insolvency of maker no excuse unless known to indorser; Smedes v. The Bank, 20 Johns. 382, as to note indorsed and delivered to bank for collection; Denny v. Palmer, 5 Ired. 623, 624, where belief on part of indorser that note would not be paid, held not to excuse notice; Richter v. Selin, 8 Serg. & R. 438; applied in McNeill v. Elam, Peck (Tenn.), 269, holding further as to right to sue prior indorsers; Farmers' Bank v. Vanmeter, 4 Randolph, 559, holding further no right of contribution as between several accommodation indorsers in absence of agreement; Catlin V. Jones, 1 Pinn. 132, holding that declaration must aver presentment and dishonor; Corwith v. Morrison, 1 Pinn. 490, as to note indorsed after maturity. The rule is also approved in the following cases, discussing the general subject of liability of accommodation indorsers: Yeaton v. Bank, 5 Or. 50, 3 L. 34; Woodworth v. Bank, 19 Johns. 407, 10 Am. Dec. 252; Strothart v. Lewis, 1 Overt. 258.

Distinguished in Morris v. Bank, 93 Ala. 513, 9 So. 606, holding that where note made for accommodation of payee, he is not entitled to notice of presentment to maker; so also in Blenderman v. Price, 50 N. J. L. 300, 12 Atl. 777, and in Mechanics' Bank v. Griswold, 7 Wend. 168, where note was discounted for accommodation of indorser.

Negotiable paper.- Drawer of bill of cha is entitled to strict notice, if, at time of drawing bill, he has right to expect that it will be honored, p. 154.

Rule applied in Dickins v. Beal, 10 Pet. 577, 578, 9 L. 540, holding drawer entitled where he had funds in hands of drawee; Hopkirk v. Page, 2 Brock. 27, F. C. 6,697, holding notification by drawee to drawer that bills will not be honored, excuses indorsee. See also separate opinion of Godard J., in Shepard v. Hawley, 1 Conn. 372, 6 Am. Dec. 247, applying principle in holding each joint indorser entitled to notice; Pitts v. Jones, 9 Fla. 524, holding that drawer's right to sue drawee fixes right to notice; Bloodgood v. Hawthorn, 9 La. 127, holding that where from nature of business relations, drawer could reasonably expect draft to be honored, mere lack of funds in drawee's hands does not excuse notice; Eichelberger v. Finley, 7 Harr. & J. 387, 16 Am. Dec. 316, holding that check is drawn without funds in bank, drawer is not entitled to notice although drawee has not been diligent in presenting; Grosvenor v. Stone, 8 Pick. 83, where draft drawn pursuant to agreement to honor; Dunbar v. Tyler, 44 Miss. 13, holding that open and current account between parties creates implied authority to draw; so also in Robinson v. Ames, 20 Johns. 150, 11 Am. Dec. 260; Durrum v. Hendrick, 4 Tex. 500, where bill drawn in good faith but without funds in drawee's hands. See also Neederer v. Barber, 17 Fed. Cas. 1274, and Hamlin v. Simpson, 105 Iowa, 128, 74 N. W. 907, discussing general subject of notice.

Distinguished in Bowen v. Bank, 87 Fed. Rep. 436, under State statute holding notice excused by absence of prejudice to drawer;


4 Cr. 164-177

Notes on U. S. Reports.


Taylor v. Bank; 7 T. B. Mon. 582, holding excuse of notice to drawer not to apply to indorser. Rule limited in Foard v. Womack, 2 Ala. 371, and in McRae v. Rhodes, 22 Ark. 319, bolding notice excused where no funds in drawer's hands.

4 Cr. 164–165, 2 L. 583, HOPKIRK V. BELI. No citations.

4 Cr. 165–166, 2 L. 583, HICKS v. ROGERS.

Ejectment.- In Vermont devisees of a tract of land “to be equally divided between them," may maintain ejectment jointly, p. 166.

Cited in Matthews v. Hall, 1 Vt. 331, to support the rule that a note payable to A. or bearer may be sued upon by a bearer without indorsement. Cited generally in Lytle v. State, 17 Ark. 659, and McFarland v. Stone, 17 Vt. 175, 44 Am. Dec. 328.

Denied in Campbell v. Wallace, 12 N. H. 370, 37 Am. Dec. 224.

4 Cr. 167–168, 2 L. 584, UNITED STATES V. CANTRIL.

Penal statutes Repugnancy.- A penal statute, in itself repugnant, cannot support an indictment, p. 167.

Cited and principle applied in Hall v. Bank, 6 Whart. 597, construing statute providing penalty for failure of bank to redeem notes. Cited generally in Campbell's Case, 2 Bland Ch. 231, 20 Am. Dec. 372.

Criticised in United States v. Howell, 11 Wall. 437, 20 L. 197. Distinguished in Mackey v. State, 3 Ohio St. 364; State v. Randall, 2 Aikens, 102, 105, and State v. Twitty, 2 Hawks, 453, under facts, in construing statutes providing penalty for counterfeiting bank notes.

4 Cr. 169–171, 2 L. 584, STHRESHLEY V. UNITED STATES.

Office - Effect of removal from.- A collector of revenues has lo authority to receive duties after his removal from office, though they became payable while he was in office, p. 171.

Rule applied in Cutts v. United States, 1 Gall. 74, F. C. 3,522. And see note, 10 Am. St. Rep. 856, citing principal case to the point that sureties on official bond are not liable for acts committed after removal of principal from office.

Miscellaneous citations.- Cited also in Calhoun v. Levy, 33 La. Ann. 1299, but not in point.

4 Cr. 172-177, 2 L. 585, MARSHALL V. CURRIE.

Land – Description of.- If monuments mentioned in a deed are uncertain, courses and distances may identify or dispense with them, p. 176.

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