These obligations ought to exert a potent restraining influence against the commission of crime, but they are not sufficient to break the tie which binds the criminal to the penalty for his acts. That a man cannot take advantage of his own wrong is a maxim now too well settled to need any argument.
In the view which I take of this case, it becomes unnecessary to discuss further the question of supposed conflict of jurisdiction between the District Court and the federal military authorities. It is clear that the District Court has jurisdiction of the offense charged and of the person of the accused, and there was nothing in the manner of his arrest, which can oust the District Court of such jurisdiction. The accused was not under the control of any military officer when arrested, and, therefore, ought not to be now, placed under such control.
It is a well settled doctrine that where the United States courts have jurisdiction, concurrent with the State courts, and the State courts first take jurisdiction of the particular case, such jurisdiction becomes, for that case, exclusive, and completely ousts the jurisdiction of the federal courts. Taylor et al. v. Carry, 20 Howard U. S., 583; Keating v. Spink, 3 Ohio State, 105.
And, certainly, the United States military authorities cannot claim a greater right, by virtue of their jurisdiction over the persons and offenses of alleged criminals, conferred by the act of Congress approved March 3d, 1863, entitled, "An act for enrolling and calling out the national forces, and for other purposes," which are clearly also within the jurisdiction of the State courts, than is claimed by the United States judicial tribunals in like cases. In this view, then, this case being originally (if indeed it was, which may well be doubted), equally cognizable by the federal military and by the State courts, the latter having first acquired jurisdiction by the arrest of the accused, such jurisdiction became exclusive, and defeats any right of jurisdiction in this particular case on the part of the military.
My personal knowledge of the defendant, his family and their history, as well as his own generous and faithful military service, and his brave and unexceptionably exemplary conduct therein, during near three years, and his crowning act of devotion to the country, in his re-enlistment in the veteran corps, incline me involuntarily, to the most patient investigation and favorable consideration of his case, but I can see no avenue of escape from the conclusion that he must be held for condemnation or acquittal under that civil law, against which he is charged to have offended.
The prisoner John McRoberts is, therefore, remanded to the custody of the officer producing him under the writ.
1. EQUITABLE DEFENSE. An equitable defense may, under section 2880 of
the Revision of 1860, be interposed in a proceeding at law to recover
the possession of real estate. Rosierz v. Van Dam, 175; Van Orman
v. Spofford, Clarke & Co., 186; Kramer v. Conger, 434.
See APPEAL, 3; EVIDENCE, 1-3.
See STATUTE OF LIMITATIONS.
I. IN WHAT CASES AN APPEAL MAY BE TAKEN.
1. REMOVAL OF GUARDIAN. A guardian of minors may have an order of the
County Court removing him from his trust reviewed on appeal to
the District Court. George v. Parker, 531.
2. TRIAL ON EQUITABLE DEFENSE. An appeal from a decree entered on the
determination of equitable issues found in an action to recover the pos-
session of real property, should be tried de novo in the Supreme Court
upon the original evidence properly certified. Van Orman v. Spofford,
Clarke & Co., 185.
3. EVIDENCE ON APPEAL. On the hearing of causes triable by the first method
for the trial of equitable actions, the Supreme Court must be satisfied
that the record presents all of the evidence heard in the court below.
This may be shown by the recitals in the decree, or the certificate of
the judge or the clerk of the court below. Id.; Ticonic Bank v. Har-
vey, 141; Kellogg v. Kelsey et al., 388.
4. NOTICE OF SUBMISSION. An appellant who allows almost four years to
expire between the taking of his appeal and the filing of his transcript
will not be permitted to submit the cause for final determination with-
out additional notice to the appellee. Byington v. Robinson, 591.
5. IMPERFECT RECORD. That the transcript of a cause does not embrace the
entire record thereof is not sufficient ground for dismissing the appeal,
or striking the record from the files. Mayo v. Temple, 585.
6. COMPUTATION OF TIME. Doubts in the computation of time are resolved in
favor of sustaining an appeal. Carleton v. Byington, 588.
1. BY CREDITOR. When moneys are paid by a debtor to a creditor holding
several demands against him, he may direct the application of the
same. If he fails to make such direction, the creditor may make
the application, and if he fails, the law will make a fair and just
application. Whiting v. Eichelberger, 422.
2. IN EQUITY. As to the application of moneys in equity, see Mayer v. Bills
& Vincent, 586.
1. LIENS. Under section 3360 of the Revision of 1860, property appraised
must be sold for a sum which, when added to the prior incumbrances,
shall realize to the debtor two-thirds of the fair value of the property,
as the same has been ascertained by the appraisement. Sergeant v.
Pittman Bros. & Co. et al., 469.
1. SALE AND GENERAL ASSIGNMENT. An absolute sale of all his property
by an insolvent debtor, if made in good faith and for a valuable con-
sideration, without any contingent interest remaining in the grantor,
will not be treated as a general assignment, void, for the preference
of creditors. Buell v. Buckingham & Co., 284.
See JUDGMENT; PARTIES; PROMISSORY NOTE, 4.
1. JURISDICTION: LIEN. In an attachment suit, under the Code of 1851, pro-
perty was levied upon under the writ, a return of not found, as to
defendants, made, and the notice duly published in the manner pre-
scribed by statute; and judgment was entered without any proof
that a copy of the petition and notice was sent by mail to the defend-
ant, and without any excuse for not so sending the same: Held:
1. That the District Court did not have jurisdiction to render the
judgment, and that a sale of the property attached thereunder was
invalid, and should be canceled at the suit of a subsequent pur-
chaser of the attachment defendant: following Broghill v. Lash,
3 G. Greene, 357; McGahan v. Carr, 6 Iowa, 331.
2. That the judgment could not be cured and rendered valid by
supplying the defects in the service and the proofs thereof after it
was rendered.
3. That the entry of the judgment did not discharge the lien of
the attachment on the property seized; and that the lien attached
to the same in the hands of a purchaser, after the entry of the
judgment, from the attachment defendant. Hodson v. Tibbitts, 97.
1. ATTORNEYS AS WITNESSES. A party who is taken by surprise, by evi-
dence offered on the trial of a cause, will not be regarded as failing
to exercise diligence in procuring evidence, for the reason that he
refuses to place his attorney on the stand as a witness in his behalf.
Alger v. Merritt, 121.
2. SAME. While the attorney in a cause is not, by our laws, rendered incom-
petent as a witness for his client, no lawyer should, in a contested
cause, occupy the position of both attorney and witness. Id.
3. ATTORNEY'S LIEN. The lien of an attorney on the moneys due to his
client and in the hands of an adverse party is binding from the date
of notice to such party, and will not be postponed to proceedings in
garnishment in which notice is subsequently served. Myers v. McHughs
et al, 335.
1. BANK STOCK. Stock in a banking corporation is incorporeal personal pro-
perty; and when it is sold and there is nothing in the contract or in
the circumstances to repel the presumption, the vendor is considered
to warrant its title, and that it is legally what it purports to be in fact;
but not its quality or value. Allen v. Pegram et al., 163.
2. TERRITORIAL CHARTER. The act of Congress of July 1st, 1836, requiring
the approval and confirmation of Congress to give validity to any act
of a Territorial Legislature incorporating any bank or any institution
with banking powers or privileges, was applicable to territories organ-
ized after its enactment, and was not repealed by the organic act of
the Territory of Nebraska. Id.
3. NEBRASKA: BANK CHARTER. The issue of bills and the exercise of other
banking powers by a corporation organized under a charter granted by
the Territorial Legislature of Nebraska, which was never confirmed or
approved by Congress, was without authority of law. Id.
1. EVIDENCE. The safer and better practice in all cases is to set out the evi-
dence in the body of the bill of exceptions, instead of by reference;
and when a deposition (or other evidence) is not so clearly and unmis
takably marked and identified by the bill of exceptions as to leave no
fair or reasonable room for doubt as to its fairness, it will be disregarded
by this court. Lyons v. Thompson et al., 62.
2. SAME. When evidence was not set out in a bill of exceptions, but was
referred to as "hereto attached," without giving even the names of the
witnesses, and the evidence in the record was not attached to the bill,
but appeared in another part of the transcript: Held, That the evi-
dence was not sufficiently identified. Van Orman v. Spafford, Clarke
& Co., 186.
3. As to evidence in Chancery causes, see RECORD, 2.
1. WHEN FILED. A bill of review can be filed only after the final decree.
Mc Gregor v. Gardner et al., 538.
2. SAME. Quere. Will a bill of review lie in the Supreme Court for errors
upon the face of a decree? Id.
3. SAME: COURT BELOW. The District Court cannot sustain a bill of review
for errors apparent upon the face of a decree which has been affirmed
or rendered by the Supreme Court. Id.
4. SAME: AN ORIGINAL PROCEEDING. A bill of review based upon new mat-
ter requiring additional testimony is so far in the nature of an original
proceeding that the Supreme Court cannot originally entertain it. Id.
VOL. XVI.-77
5. SAME. Quere. Would a bill of review, based upon newly discovered facts,
be sustained by the District Court, after an affirmance of the decree
on appeal in the Supreme Court? Id.
1. LIABILITY OF SURETIES. The sureties on the bond of a justice of the peace
are liable for a breach of the same, by receiving notes for collection
while in office, and refusing to deliver them either to the owner thereof
or to his successor in the office at the expiration of his term. Latham
v. Brown et al., 118.
2. ADMINISTRATORS: REPLEVIN. A guardian sued out a writ of replevin for
his wards, but executed a replevin bond in his individual capacity.
Held, That he was liable as an individual on the bond. Oliver v.
Townsend, 431.
3. SAME. A replevin bond filed in an action concerning the property of an
intestate was made payable to the administrator in his individual, and
not in his representative capacity. Held, That the administrator could
elect to sue, either individually or in his representative capacity, and
take payment accordingly. Id.
4. CRIMINAL ACTION: LIABILITY OF BAIL. The appearance of the defendant
in a criminal prosecution to answer the charge, does not discharge the
sureties on his bond. They are liable for any failure to obey the orders
of the Court before surrender or discharge. Their liability is a con-
tinuing one which can be discharged only by surrendering the accused
as provided by statute, or by obtaining his discharge. The State of
Iowa v. Brown et al., 314.
6. SAME: CHANGE OF VENUE. When the venue in a criminal action is
changed, the sureties are liable for the appearance of the accused
before the Court to which the change is ordered. Id.
6. SAME: FAILURE OF TERM. A failure to hold the term of the Court at
which the accused is required to appear, does not discharge the sure-
ties on his bail bond. Id.
7. SAME: FORFEITURE. A forfeiture of recognizance may be taken at any
time during the term at which the accused was required to appear, or
during the succeeding term, and before he has been surrendered or dis-
charged. Id.
8. SAME: NOTICE OF FORFEITURE. It is not necessary that the accused or his
sureties shall have notice of the time at which a forfeiture of his bail
bond will be claimed. Id.
9. Same: diffeRENT OFFENSES. When the defendant was held to answer to
a charge of grand larceny, and made his appearance, and was indicted
for the crime of burglary, it was held, that in the absence of any
showing that the indictment was based upon the same transaction as
the charge for grand larceny, that the sureties upon the bond would
not be held liable for his further appearance to answer to the indict-
ment. Id.
10. SAME. Quere. Whether, when the accused was held to answer to a
charge for one crime, and was indicted for another of the same or
a higher grade, but growing out of the same transaction, the sureties
on his bond would be held for his departure without leave of the
Court. Id.
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