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4 Cr. 62–73, 2 L. 550, SMITH v. CARRINGTON.

Evidence.- Admission of a copy of a letter in evidence, not authenticated, and the original unaccounted for, is error and ground for reversal of judgment, and the court cannot inquire into its weight or importance, p. 70.

Cited to this point in Manhattan Malting Co. v. Sweteland, 14 Mont. 272, 36 Pac. 84, as to admission of parol evidence where statute requires written. Approved in Laty v. Purdy, 2 Overt. 165, discussing general subject.

Exception to instructions.- Misdirection in the charge to the Jury affords ground for a bill of exceptions, p. 72.

Cited in Texas & Pacific Ry. v. Volk, 151 U. S. 78, 38 L. 80, 14 S. Ct. 240, as to omission of court to charge when requested; and, on same point, in Emerson v. Hogg, 2 Blatchf. 7, 13, F. C. 4,440; Brackett v. Norton, 4 Conn. 521, 10 Am. Dec. 181, as to charge containing construction of unproved foreign laws; State v. Hascall, 6 N. H. 359, as to omission to charge regarding competence of evidence; Firemen's Ins. Co. v. Walden, 12 Johns. 517, 7 Am. Dec. 344, holding erroneous a positive direction as to materiality of facts; Fletcher v. Howard, 2 Aikens, 117, 16 Am. Dec. 689, as to refusal to instruct regarding effect of possession by pledgor in case of pledge; Gordon v. City of Richmond, 83 Va. 439, 2 S. E. 729, as to obscure and misleading instructions. See note, 72 Am. Dec. 542, on general subject.

Distinguished in Knapp v. McBride, 7 Ala. 30, holding mere neg. lect to charge not ground for reversal; Dunlop v. Patterson, 5 Cow. 246, and Washburn v. Tracy, 2 D. Chip. 136, 15 Am. Dec. 663, holding that omission must be of instruction requested by counsel.

Instructions to jury.- The court cannot be required to charge respecting a matter of fact and, when such request is made, is not bound to separate law from fact and charge as to former, p. 71.

Cited and applied in Uuited States v. Burnham, 1 Mason, 69, F. C. 14,690, where request contained recital of evidence; so, also, in Stearns v. Barrett, 1 Mason, 173, F. C. 13,337; Proctor v. Hart, 5 Fla. 467, holding court may refuse to charge as to abstract proposi. tion not based on color of evidence. Followed in Brooke v. Young, 3 Rand. 112; in Peasley v. Boatwright, 2 Leigh (Va.), 197, under facts similar to principal case. Rule discussed and approved in Kitty v. Fitzhugh, 4 Rand. 604.

Evidence - Competency of witnesses.— Incompetency of a witness as to one point is not ground for his rejection generally, p. 69.

Cited in Beers v. Broome, 4 Conn. 256, as to witness interested in part of transaction; McMicken v. Fair, 4 Mart. La.) (N. S.) 173, as to interest in certain items of account. Cited generally in Knowles v. Dow, 22 N. H. 410, 55 Am. Dec. 171, discussing subject of evidence of custom.

Miscellaneous citations.- Cited in Sibly v. Hood, 3 Mo. 298, as to functions of jury; also in Denny v. Palmer, 5 Ired. 624, but not in point.

4 Cr. 73–74, 2 L. 554, PENDLETON V. WAMBERSIE.

Partnership - Assignment of interest - An assignee of a copartner may maintain a bill for an account against the other members of a partnership which was formed to deal in lands, p. 74.

Cited and rule applied in Hirbour v. Reeding, 3 Mont. 25, holding, further, as to effect of statute of frauds; so, also, in Chester v. Dickerson, 54 N. Y. 7, 13 Am. Rep. 552; Tiller v. Cook, 77 Va. 481, as to partnership formed for purpose of repairing and operating mill.

4 Cr. 75–137, 2 L. 554, EX PARTE BOLLMAN & SWARTWOUT.

Jurisdiction.- Courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction, p. 93.

Cited and applied in In re Garvey, 7 Conn. 248, denying authority of judge to issue habeas corpus, in chambers, where such authority not given by statute; People v. Taylor, 1 Scam. 202, State Supreme Court refusing writ of habeus corpus in exercise of original jurisdiction; Baker v. Chisholm, 3 Tex. 158, disclaiming jurisdiction to entertain appeal from decision of lower court in contested election case; Solon v. State, 5 Tex. App. 305, denying jurisdiction of Justice's Court over misdemeanor not specified by statute.

Jurisdiction.- Federal courts have no common-law jurisdiction, and can take cognizance of offenses only as authorized by congress.

P. 93.

Cited, and applied in dissenting opinion, Tennessee v. Davis, 100 U. S. 282, 25 L. 657, majority holding trial for murder, committed by revenue officer in discharge of duty, removable to Federal court; dissenting opinion, In re Neagle, 135 U. S. 78, 96, 34 L. 76, 83, 10 S. Ct. 673, 679, majority sustaining decree of Circuit Court discharging, in habeas corpus proceeding, Federal officer held for murder by State court; In re Barry, 136 U. S. 601, 607, 608, 509, 610, 612, 613, note, 34 L. 505, 507, 508, 509, 42 Fed. Rep. 116, 120, 121, 122, 123, 124, 126, 127, F. C. 1,059, denying jurisdiction of Circuit Court to issue writ, at instance of alien parent, to determine right of other parent to custody of child; United States v. Wilson, 3 Blatchf. 438, F. C. 16,731, where jurisdiction given to Circuit Court, over torts committed on high seas," held not to extend to those committed in port; Ex parte Everts, 1 Bond, 200, 202, F. C. 4,581, refusing writ to review proceedings of State court awarding custody of child, al. though petitioner was citizen of another State; so, also, in Bennett v. Bennett, Deady, 314, F. C. 1,318; United States v. New Bedford Bridge, 1 Wood. & M. 408, 436, 440, 448, F. C. 15,867, quashing indictment against corporation for maintaining obstruction in navigable river, in absence of act of congress making such act punishable; United States v. Plumer, 3 Cliff. 55, F. C. 16,056, denying jurisdiction of Circuit Court to review, on writ of error, judgment of District Court in criminal cause; In re Boles, 48 Fed. Rep. 76, 4 U. S. App. 1, denying jurisdiction of Federal Court of Appeals issue writ of habeas corpus to be served outside of circuit; King v. McLean Asylum, 64 Fed. Rep. 342, 347, 348, 21 U. S. App. 481, refusing writ to review commitment of person in insane asylum, by order of State court; Ludington v. The Nucleus, 15 F. C. 1095, holding contracts for materials furnished at home port in building vessel not to be within act extending jurisdiction of District Courts to great lakes; dissenting opinion, Slocum v. Wheeler, 1 Conn. 453, arguing that in order to repder judgment of District Court, sitting as Admiralty Court, conclusive, jurisdiction must appear on record; dissenting opinion, Chumasero v. Potts, 2 Mont. 290, arguing that Territorial court cannot issue writ of mandamus without authority of congress. The principle has also been applied in In re Garvey, 7 Colo. 507, 4 Pac. 760, denying jurisdiction of judge to issue babeas corpus at chambers where statute gives such jurisdiction to court generally.

Distinguished in Ex parte Des Rochers, McAll, 72, 73, F. C. 3,824, issuing writ, at instance of party to suit, where justice of State Supreme Court, whose presence was necessary to decide cause, was deprived of liberty by individuals.

Construction.— The nature of a provision in a statute, as well as its context, may be resorted to to determine its meaning, p. 95.

Cited and applied in Brady v. Bartlett, 56 Cal. 364, construing statute directing mode of levying assessments for public improvements.

Jurisdiction.- State courts are not inferior courts within mean. ing of Federal Constitution, p. 97.

Cited and principle applied in Davison v. Champlin, 7 Conn. 248, holding that congress cannot confer on State court jurisdiction of offense arising under postal laws.

Habeas corpus will not issue from Federal to State court except in cases arising under laws of the United States, p. 97.

Cited and applied in Holmes V. Jennison, 14 Pet. 620, 621, 625, 626, 10 L. 622, 623, 625, 626, refusing writ where prisoner held for extradition under warrant issued by governor of State; Ex parte Hung Hang, 108 U. S. 553, 27 L. 812, 2 S. Ct. 864, where petitioner held for trial for violation of city ordinance alleged to be repugnant to Federal Constitution; In re Barry, 136 U. S. 625, note, 34 L. 513, 42 Fed. Rep. 133, F. C. 1,059, refusing writ to review decision of State court awarding custody of minor child; so also in Ex parte Everts, 1 Bond, 200, 202, F. C. 4,581, Bennett v. Bennett, Deady, 314, F. C. 1,318, and King v. McLean Asylum, 64 Fed. Rep. 342, 347, 848, 21 U. S. App. 481.

Habeas corpus.— The Supreme Court has jurisdiction to issue & writ of habeas corpus to examine into the cause of a commitment by an inferior Federal court, p. 101.

A number of citing cases are upon this point. The rule has been cited and applied in Ex parte Watkins, 7 Pet. 572, 573, 8 L. 788, where prisoner committed under ca. sa. to collect fine; dissenting opinion, In re Kaine, 14 How. 146, 14 L. 363, majority refusing writ where proceedings of commissioner committing prisoner had been held valid in Circuit Court upon a habeas corpus; Ex parte Milligan, 4 Wall. 110, 18 L. 292, holding that suspension of privilege of writ does not suspend writ itself, and it will issue to review decision of lower court committing prisoner under declaration suspending writ; Ex parte McCardle, 6 Wall, 324, 18 L. 817, and Ex parte Yerger, 8 Wall. 97, 98, 19 L. 336, holding that Supreme Court may issue writ accompanied by writ of certiorari to revise decision of lower court, in habeas corpus proceedings, remanding prisoner; Ex parte Lange, 18 Wall. 166, 21 L. 875, extending principle and discharging prisoner held under final judgment of lower court, rendered without authority; Ex parte Perkins, 29 Fed. 908, applying principle in Circuit Court issuing habeas corpus where prisoner committed for contempt by court lacking jurisdiction in first instance; State v. Sullivan, 50 Fed. 598, holding that grant by congress general power

issue writ included writ of habeas corpus cum causa; In re McDonald, 16 Fed. Cas. 20, 23, collecting and discussing authorities; the principle has also been applied in State courts, and the following cases have relied upon it: Ex parte Harbour, 39 Ark. 129, holding that Supreme Court of State may review, on certiorari, decision of inferior court refusing bail; State v. Neel, 48 Ark. 288, 3 S. W. 633, issuing writ to determine as between lessees, who has right to services of convict; State v. Mace, 5 Md. 340, issuing writ of habeas corpus ad testificandum; State v. Grant, 10 Minn. 46, holding constitutional, act of legislature confer. ring upon Supreme Court power to issue writ; dissenting opinion, Ex parte Marmaduke, 91 Mo. 251, 4 S. W. 99, as instance where United States Supreme Court issued writ; State v. Barber, 4 Wyo. 63, 32 Pac. 16, holding that where State Supreme Court is authorized to issue writ of mandamus generally, it may issue it to compel election board to canvass returns.

Cited generally in Ex parte Davis, 7 Fed. Cas. 47; In re Kaine, 14 Feu. Cas. 87, 88, discussing subject of habeas corpus; People v. Tur. ner, 1 Cal. 147, 52 Am. Dec. 298, discussing subject of ex parte jurisdiction of State Supreme Court; dissenting opinion, Hyatt v. Allen, 54 Cal. 364, 368, as instance where Supreme Court issued writ in exercise of appellate jurisdiction.

Distinguished in Ex parte Kearney, 7 Wheat. 42, 5 L. 392, holding commitment for contempt to be in the nature of a conviction, and hence habeas corpus could not issue; Ex parte Watkins, 3 Pet. 208, 7 L. 655, where prisoner held under conviction in criminal case by court of competent jurisdiction; In re Metzger, 5 How. 189, 190, 191, 12 L. 110, denying jurisdiction of court to issue writ, as incident to appellate power, where commitment ordered by district judge at chambers; In re Kaine, 14 How. 119, 130, 131, 133, 14 L. 351, 356, 357, denying jurisdiction to issue writ where legality of proceedings of commissioner ordering extradition of prisoner had been inquired into and sustained by Circuit Court; dissenting opinion, Ex parte Wells, 18 How. 317, 15 L. 426, majority entertaining writ to inquire as to legality of imprisonment under sentence of Circuit Court; Ex parte Siebold, 100 U. S. 374, 375, 25 L. 718, denying authority to issue writ where commitment was under decree of court of competent jurisdiction; In re Kaine, 14 Fed. Cas. 83 (see 14 How. 119, 130, 131, 133, 14 L. 351, 356, 357.) See also dissenting opinion of Johnson J. in Ex parte Watkins, 7 Pet. 581, 8 L. 791, where rule criticised and denied.

Habeas corpus.- The decision that the individual shall be im. prisoned must always precede the application for habeas corpus, and as the writ is for the purpose of revising that decision it is appellate in its nature, p. 101.

Principle applied in Ex parte Tom Tong, 108 U. S. 560, 27 L. 828, 2 S. Ct. 873, refusing to entertain certificate of division from Circuit Court as to whether writ should issue to State court, there having been no committment by a Federal court; Yarborough v. State, 2 Tex. 521, holding that appeal does not lie to State Supreme Court from inferior court remanding prisoner on habeas corpus. Cited also in People v. Spiers, 4 Utah, 387, 10 Pac. 610, discussing powers of territorial courts to issue writs ancillary to appellate jurisdiction.

Habeas corpus.- It suficient ground for the prisoner's detention be shown, he is not to be discharged for mere defects in the original commitment, p. 114.

Principle applied in Nishimura Ekiu v. United States, 142 U. S. 662, 35 L. 1150, 12 S. Ct. 339, refusing writ to review decision of inspector denying right of immigrant to land, although such deeision Irregular in form; In re Van Campen, 2 Ben. 421, 422, F. C. 16,835, holding, as to indictment under national bank act, for embezzlement, that probable cause to believe in guilt is sufficient

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