shalltown closed its business at 9 o'clock, and had communicated that fact to Josiah Given. It was shown that they did not know this, and that they were not furnished with meHns of knowing when the offices of tbe company closed for tne night at other places than Des Moines. The want of this information is assigned for negligence. But we do not see any sufficient reason for believing that if Mr. J 0siah Given had been told, when he offered his last message, that the office at Marshalltown was closed for the night, tbat he could have provided any other means of repairing the evil, and so the information, if communicated to him, would have done no goocl. Nor do we see that it is the duty of theWestern Union Telegraph Company to keep the em ployes of everyone of its offices in the United States informed of the time when every other office closes for the night. The immense ):lumber of these offices all over the United States, the frequent changes among them as to time of closing, and the prodigious volume of a written book on this subject; seem to make this onerous and inconvenient to a degree which forbids it to be treated as a duty to its customers, for neglect of which it must be held liable for damages. There is no more obligation to do this in regard to offices in the same state than those four thousand miles away, for the communication is between them all, and of equal importance. The question of the remoteness of the injury, and want of any satisfactory measure of damages, has been ably discussed, and is one of much interest; but as we are of opinion that no such negligence is shown as to render defendant liable at all, we forbear to consider that que tion, and render judgment for the defendall.
OCEANIC S'cEAM NAV.
Co., Limited. June 20, 1885.)
(Oircuit Oourt, 8. D. New York.
MASTER AND SERVANT-UNSAFE MACHINERY.
Where an injury is caused by the use of unsafe machinery, which the employer knew, or in the exercise of ordinary care should have known, was unsafe, and the employe did not know was unsafe, from his inability to examine or know about the machinery, the employer will be responsible.
Ordinary care on the part of an employer implies, as between him and his employes, not simply the degree of diligence which is customarJ' among those intrusted with the management of the machinery used, but such as, having respect to the exigencies of the particular service, ought reasonably to be observed. Known and foreseen dangers, not necessarily incidental to the business, are to be avoided if practicable, unless the employe knowingly accepts the risk.
Motion for New Trial.
Herman H. Shook, for plaintiff.
BEAN V. OCEANIC STEAM BAV. CO.
SHIP3fAN, J. This is a motion by the defendant for a new trial of an action at law, the jury haring returned a verdict for the plaintiff for $1,250. 1'he plaintiff, while employed in discharging cargo in the hold of the steamer Republic, a vessel of the defendant, was injured by the falling upon him of a draught containing boxes of goods that were be. ing hoisted out of the hold. This action was to recover damages for the injury. In stating the facts, I use, in part, the language of the defendant's counsel in his brief: "The defendant employed a stevedore to discbarge cargo, and he engaged gangs of men who were set to work at the different hatches; some being employed in the hold to get out the boxes and bails of goods and place them on the draught, and others being engaged on the deck in working the machinery by which they were lifted, and others again being employed in putting them onto the pier ready to be taken away. A machine called a winch was the means employed, in combination with block and tackle, to raise the cargo out of the bold. This winch was composed of a central shaft, with a drum at each end. The shaft was made to revolve by being geared onto the shaft of a small donkey engine. It appeared that when there was a necessity for discharging cargo rapidly, and therefore discharging by the means of two whips at the same time from the same hatch, the rope running over the block of each whip was coiled around one of the drum-ends. On the other hand, when there was no necessity for haste, the rope was fastened to the ccnter axle, and tllen coiled around that. In this case it was impossible that the rope should slip if properly made fast, because of the attachment to the axle. In the case of its being coiled around the drum-ends, it was possible that it should slip if the man employed to coil the rope around the winch, and by means of this produce friction between the rope and the drum so that the rope would not slip upon it, did not coil the rope around a sufficient number of tirnes, or if one of the coils should slip oft' so that the adhesion of the rope to the drum was not sufficient to counterbalance the weight of the load." While the man at the winch was endeavoring to take an additional coil around the "end" in order to hold the weight steadily, a coil slipped off, the rope slipped, and the weight dropped. The Gteam-ship lines in the city of New York have for the last eight years used the two drum-ends in the Hame way in which the defendant used them and no serious accidl'nt has happened. Slight accidents to the workmen at the winch from the slipping oJT of the coil have occurred, which indicate that the use of the two ends is more unsafe than the use of the barrel. "Then heavy loads are drawn from the hold, the rope is attached to the center of the drum, because, in such cases, two or three blocks are lIsed to divide the strain, and such an arrangement re'lnires fL great"r length of rope than can be used upon the" cnds." The lOll/Is that were being taken out at the time of the accident were not heavy.
Everett P. Wheeler, for defendant.
The charge to the jury was to the effect that the question for theil' determination was whether the injury was caused by a lack of ordinary care on the part of the defendant in attaching the rope to the winch in an unsafe method, or was attributable to the ordinary risks which are incident to a safe and prudent system, one of which is the carelessness of a co-employe. Ordinary care and the obligations of the master in regard to m,achinery to be used by his employes were defined in this language of the supreme court in Hough v. Railway
Co. 100 U. S. 213, and the jury were instructed that employers were responsible if an in,jury happunecl by tlHl usC) of unsafe machinery which the employer knew, or in the of ol'c1innry care should have known, was unsafe, and tho employo did not know, from his inability to examine or know about the machinery. 'fhe ,jury, by tlJoir verdict, llegatived the theory that the injury "Ins ettused by the negligence of the attendant at the winch, and found tbat it occurred by reason of the negligence of the defendant in causing the winch to be used in an unsafe manner, the plaintiff being exss. cusably ignorant of the unsafen 'rhe principal point which the defendant makes is that the question of liability for the use of the drum-ends "is not properly a question of negligence in the just sense of the term. The use was intentional, and designed to effect a certain purpose, to-wit, the more rapid discharge of the cargo. The possibility of slipping was a risk incident to this use. The point for the court to decide is whether the company is liable in damages for an accident incidental to the use of apprO\'ed appliances for the discharge of cargo in cases where the use of these appliances involves a somewhat increased danger as compared with the use of the old appliances." This ingenious way of stating the question disregards the requirements which the supreme court has recently declared are properly imposed upon employers with respect to the selection of machinery to be used by their workmen, and considers the obligation as satisfied if the accident is incidental to the use of approved, though somewhat dangerous, appliances. 'rhe defendant would make the employer's liability hinge upon the question whether the appliances were the approved or customary ones; ancl if they had received the general sanction of employers, and had answered the purposes which they were designed to accomplish, the duty of ordinary care is complied with. 'rhe requisites of ordinary care are not satisfied by such a rule. "Ordinary care on its [a railroad company's] part implies, as between it and its employes, not simply the degree of diligence which is customary among those intrusted with the management of railroad property, but such as, having respect to the exigencies of the particular service, ought reasonably to be observed." lVabash Ry. Co. v. McDaniels, 107 U. S. 454; S. C. 2 Sup. Ct. Rep. 932. Known and foreseen dangers, not necessarily incidental to the business, are to be avoided, if practicable, unless the employe knowingly accepts the risk. At this point the defendant says that the use of the two ends of the winch is necessary to the business, and that while this system involves a certain degree of danger beyond that from the use of the central drum, the necessities of commerce have called for the use of double winches, and therefore the danger is incidental to the business. It is by no means clear to my mind that speed and safety cannot be combined by the use of drum-ends Which. are so made as to hold the rope firmly. If the present method of constructing the "ends" is at.
OLIVER 11. PULLAM.
tended with danger, such danger can be avoided without serions expenditure of money or of thought. It is true that if the employe knows, or has good reason to know, when he enters upon the employment, that dangerous appliances are being used, he assnmes the risk of the injury which is incidental to snch use; but, in this case, the finding of the jury is to the effect that the plaintiff was ignorant that the two ends were being employed. The defendant insists that the finding was against the weight of the evidence. Upon the trial of the case, the attention of both court and counsel was principally directed to the question of the safety of the method which the defendant used, and both evidently thought that upon that question the case turned. Upon reading over the testi· mony I think that the jury might have erred in not finding for the de· fendant upon the point of the plaintiff's knowledge or character of the appliances, but the testimony on that subject was not of the strength which should justify granting a new trial. The motion is denied.
(Cii cuit Court, W. D. North Carolina. May Term, 1885.)
STATE LANDS-EJRCTMRNT-GRANT OBTAINED BY FRAUD.
That a grant of state land was founded upon" a fraudulent entry, and ob. tained by false and fraudUlent practices," cannot be availed of in an aetion of ejectment brought by It senior grantee to vacate such grant. 2.
SAME-COLOR OF TITLE-ADVEHSE POSSESSION-NoRTH CAROLINA STATUTE.
A fraudulent grant of state land may be color of title and become a good title if the fraudulent grantee hold actual adverse possession for seven years against a senior grantee who has a right of entry and It of action to reo cover possession, and is under no disability mentioned in the statutes.
SAME-STATUTE OF LIMITATIONS-SUBSEQUENT INSANITY.
When a statute of limitations has begun to run, no subsequent disalJility will restrain its progress.
Civil Action to Recover Land. Jones ct Hardwick, for plaintiff. P. J. Sinclair, for defendant. DICK, J. This case is submitted for determination upon briefs and a statement of facts agreed upon by the counsel of the parties. Both parties claim the land in controversy from the state under grants which are conceded to be regular in form. The grant of the plain. tiff was issued July 13, 1846, and he has never had actual possession of any part of the lands included in the grant of defendant. The grant of defendant is dated twenty-first of December, 1847, and he has had continuous possession of that part of the land included in both grants, and has cultivated, and exercised other acts of ownership over the
same, from December, 1869, to the commencement of this action. The respective grants contain other lands besides those in contro. yersy; and this case preoents questions of law arising from lapping of grants, which have been frequently conf:lidered in the courts of tllis state. The senior grant conveyed the title of the state to the plaintiff, and he is entitled to recover in this action, unless he has lost his remedy by laches, and the lapse of time specified in the statute of limitations of this state. The defendant pleads the statute, and insists that his actual adverse possession, under colorable title, for more than seven years, under known and visible boundaries, constitutes a perpetual bar to the claim of the plaintiff. The plaintiff, in his reply, insists that the ,defendant's grant and actual possession does not constitute the colorable title and adverse possession required by the statute, as such grant is void,-being founded upon "a fraudulent entry, and was obtained by false and fraudulent practices." No regular demurrer was filed to this reply, but in the case agreed the defendant' admits the truth of the allegations for the purposes of this action, and insists, as by demurrer, that they are irrelevant and immaterial. A grant is the conveyance by which the state passes its title to portions of the public lands, and the law has made various provisions as to the manner in which such transfer of title shall be made. When the proper officers of the state have authority and jurisdiction to issue a grant for public land, it cannot be collaterally impeached for defects or irregularities in any preliminary proceeding, or for fraud in obtaining it; because it is the act of the sovereign, tested by the great seal, and stands on the footing of a record, and is valid until set aside by a direct legal proceeding for that purpose. But where the state had previously granted the land, or the officers had no authority, and may or exceeded their jurisdiction, the grant is absolutely be so treated in an action of ejectment. Harshaw v. Taylor, 3 Jones, Law, 513; Smelting Go. v. Kemp, 104 U. S. 636. The distinction between voidable and void grants has been clearly defined in the decisions of the supreme court of this state, in cases relating to such matters. If the land is vacant, and the subject of entry, the grant ca.n only be impeached by a direct proceeding for that purpose. When the land is not vacant, or the subject of entry, the grant is void, and advantage may be taken in an action of ejectment. lloot'cr v. Thomas, Phil. Law, 184. If a junior grant covers in part land which had been previonsly granted, (as in this case), it will be good for the land comprehended in it which had not been granted. Hough v. Dumas, 4 Dev. & B. Law, 828. As to the part previously granted, the junior grant is void, and does not in any way hinder the senior grantee from asserting his title in an action at law, brought within the period required by the statute of limitations. If the junior grant was obtained by fraud, with knowledge of the previous grant, and the first grantee thinks himself aggrieved by
OLIVER V. PULLA1I.
such clOl,d upon his title, he may iustitute legal proceedings to have the junior grant vacated; and if such fraud and knowledge are clearly established by evidence, then the court in which such proceedings are pending may vacate the junior grant in toto. Until such judgment has been rendered, such junior grant is valid as to lands not included in the senior grant. !Ioyt v. Rich, 4 Dev. & B. Law, 533. The doctrine of the common law, so strongly urged in the argument of the plaintiff's counsel, that "fraud vitiates every species of contract," is true in a general sense, but it must be reached in the regular and authoritative manner provided by law, and by parties entitled to institute such legal proceedings. The plaintiff in his reply alleges that the grant of the defendant is void beoause it was founded upon "a fraudulent entry, and was obtained by false and fraudulent practices." This is not good pleading. It is well settled that a grant cannot be collaterally impeached in an action of ejectment for any anteoedent fraud praoticed upon the state. A good allegation in pleading is a statement of fact which, if denied, will form a proper issue, and whioh the rules of law will allow to be proved on the trial. Anything which is not allowed to be proved, cannot be properly alleged, and may be struok out on motion. If a regular demurrer had been filed to the reply in this case, it would not have admitted the truth of the allegations of fact and the conclusions of law as stated. A demurrer only admits the facts that are relevant and pmperly pleaded, and never admits conclusions of law or matters of inference and argument, however clearly stated. In the case agreed, the counsel of the defendant admits the truth of the allegation for the purposes of this action, but insists, as by demurrer, that they are i1'relevant and immaterial. His purpose was to admit such matters only as would have been admitted by a formal demurrer. Passing over the questions that arise upon the informal pleadings, and considering the allegation of fraud upon the state as true, it cannot be availed of in this action to vacate the grant of the defendant in toto. It appears, therefore, that the defendant claims under a grant which is not entirely void, and contains well-defined boundaries, and he has been in the actnal adverse possession of the land in controversy for 16 years, exercising all the rights of ownership. This condition of things seems to comply with all the requirements of the state statute of limitations for securing titles to lands held adversely to the owner under colorable title. He has\ long exposed himself to the action of the plaintiff, who had the superior title. The law considers every man cognizant of his own title, the boundaries of his land, and the character and extent of the possession held by himself or an intruder, and requires that he shall, in a reasonable time, assert, by appropriate legal remedies, his rights against unlawful intrusions and encroachments. There are numerous instances where the state has granted lands ..... 24F,no.3-9
which had been before granted, and the supreme court of this state l1as decided, in many cases of lapped patents, that if the junior patentee has held actual adverse possession of the lappage for seven years, he acquires title to that portion of the land embraced in both patents. If the senior patentee has not been in actual possession of any of the lands embraced in his patents, then the actual possession of tlL,.) junior patentee of a part of the lands common to both, extends claim to the boundaries of his patent. v. ]}[urchison, 8 Jones, Law, 38. As the plaintiff did not avail himself of his full and adequate legal remedies, he cannot justly complain that the statute of limitations, founded in the wise and salutary public 'policy of giving repose to possession, and quieting titles to land, now denies the remedies so long neglected. I am of opinion that the junior grant of defendant would constitute color of title even if its boundaries were entirely covered by the senior grant of the plaintiff. Hoyle v. Logan, 4 Dev. Law,495. It has all the elements of color of title. It is a written document of title under the great seal of the state, regular in form, professing to convey the land, with well-defined boundaries, and showing the character of the possession held under it to be adverse to all claimants. l11cConnell v. McConnell, 64 N. C. 342. If the grant was obtained by the fraudulent practices alleged, it was not an absolute nullity. The effect of ordinary fraud is not absolutely to avoid the contract or transaction which has been caused by such fraud, but to render it voidable at the option of the party defrauded. The state had a right to rescind the grant of defendant for the fraud practiced, but until rescinded it operated as color of title against the senior grantee. Hoyle v. Logan, supra; McRee's Heirs v. Alexande'r, 3 Hawks, 332; 1 Dev. Law, 321. The grant of defendant, when issued, did not hinder the plaintiff in asserting his superior rights of ownership, and affected his interests only incidentally as a cloud upon his title. There is no evidence that the defendant intended to perpetrate a fraud or inj nry upon the plaintiff by procuring a grant in prejudice to his known previous title, and the law never presumes a fraud or a wrong. Asno fraud was committed against the plaintiff, he could not have avoided the grant under a direct proceeding, (Hoyt v. Rich, supra,) and he cannot raise in this action of ejectment the question of fraud as between the grantor and grantee, and thus look beyond thfl grant. Spencer v. Lapsley, 20 How. 264. The phrase "color of title" signifies some written document which appears to be a title to land, but is not a good title. The object of the legislature in enacting the statute of limitations to quiet the possession of land and settle titles, was not to protect good titles, as they could be secured in an action at law, but colorable titles that were void and worthless unless accompanied by possession. Even a fraudulent deed may be color of title and become a good title if the fraudulent grantee holds actual adverse possession for seven years against the
owner, who has a right of entry and a right of action to recover pos· session, and is under no disability mentioned in the statutes. The adverse possession of the occupant exposes him to the action of the rightful owner, and if he neglects to assert his rights in the manner provided by law, he must accept the result of his own folly and negligence. A deed void for fraud, under 13 Elizabeth, does not constitute color of title against creditors, as the possession of the fraudulent grantee is regarded as the possession of the fraudulent grantor, and not adverse to creditors. A creditor has no specific title to the land fraudulently conveyed, or right of action to recover possession. His right is enforced by selling the land under an execution founded upon a judgment for his debts. As soon as the land is sold, the purchaser acquires a title and right of action, and the fraudulent deed begins to operate as color of title. Cowles v. Coffey, 88 N. C. 340. In some of the states statutes of limitation require that the colorable title which shull ripen into a perfect title shall be acquired and held in "good faith." This question of good faith is generally held to be material only when a person is claiming constructive possession under color of title, and does not apply where there is a disseizin of the true owner, and an actual, open, and adverse possession, which exposes the claimant to an action by the true owner. There is no provision as to good faith in the statute of limitations of this state. This statute is a peremptory and inflexible rule of law, which terminates the right of the legal owner, and protects the adverse claimant in his actual possession, not out of regard to the merits of his case, but for the reason that the real owner has acquiesced in an adverse possession so long that he is not entitled to a remedy for the enforcement of his legal title. In such a case the only inquiry is, has the actual possession been sufficiently open, hostile, and continued for the time required by the statute, as against a person not under disability, and having a right of entry and right of action? A statute so manifestly remedial and beneficial in its object ought to be liberally construed by the courts, so as to extend, rather than restrict, its operation. Reddick v. Leggat, 3 Murph. 539. The admitted fact that plaintiff became non compos mentis soon after the statute began to operate, cannot be availed of in this action; for it is a well-settled general rule that when such a statute has once begun to run, no subsequent disability will restrain its progress. After a careful consideration of the briefs, the case argued, aDd the pleadings, I think that judgment should be entered for defendant. It is so ordered.
(District Oourt, S. D. Georgia, E. D. May 0,1885.)
INTER-STATE EXTRADITION-JURISDICTION OF l"EDEHAL COURTS.
The federal and state courts have concurrent jurisdiction in cases of extradition. The judgments of the latter do not conclude the former on this federal question, but are entitled to great respect, and are strongly adVisory.
SAME-INDICTMENT FOR l"ELONY AGAINST SEVEHAL DEFENDANTS.
Under the New York statutes an indictment against several defendants, charging grand larceny,-a felonY,-is good without averments showing the degrees of guilt, whether as principal in the first or second degree, 01' as accessory before or after the fact.
S.um-ALLI'OATION OF INCORPORA'l'ION.
It seems that an allep;ation that a defendant stole the bonds of the Bethlehem Iron Company, without alleging the corporate character of such company, is insufficient; but the safcr and better rule is to remit the question to the courts of the state in which the indictment was found.
HABEAS CORPUS-WHAT MAY BE
In a case arising on writ of habeas corpus, sued out to determine the legality of an arrest under proceedings for extradition, the court cannot investigate the question as to the guilt or innocence of the defendant. 5. "FUGITIVE FROM JUSTICE "-WHO Is. One who goes into a state, and commits a crime, and returns home, is as much a fugitive from justice as though he had committed a crime in the state in which he resided and then fled to some other state.
Roberts, president of the Augusta Bank, had been arrested by executive warrant of the governor of Georgia, issued on the l'equisition of the governor of New York. While in the custody of the agent of the latter state, the writ was sued out by the prisoner. . J. C. O. Black, Hook rt Montgomery, George A. Mercer, and H. D. D. Twiggs, for petitioner. Frank H. MWer, Ohisolm rt Erwin, and Boykin Wright, contra. SPEER, J. The constitution of the United States, art. 4, § 2, provides that 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 the 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. This provision of the organic law received the careful consideration of the federal convention. Certain changes were made in phraseology showing the settled purpose of its framers to make it the policy of the Union to surrender in one state the fugitives from justice in another. It is a settled rule of interstate comity, and imposes an absolute obligation on each state in a proper case made before its chief executive officer, to surrender and facilitate the extradition of parties charged with crime in the other states of the Union. By the act of congress of 1793, (section 5278 of the Revised Statutes,) appropriate legislation for the enforcement of this constitutional provision was had; and this legislation has itself received the
Reported by W. B Hill, Esq., of the :M:acon bar.
IN RE ROBERTS.
lofty sanction affonled by the approval by the supreme court of the United States of its constitutionality and effectiveness to enforce the original compact between the states upon this subject, so important to the punishment of crime and the maintenance of social order. Prigg v. Com. 16 Pet. 539. Nor have the several states been tardy in the enactment of auxiliary legislation to accomplish the object for which the national law is framed; and the state of Georgia is direct and explicit in its enactments to this end. See Code, §§ 54-58. While the duty of the executive is thus plainly marked out, it is also the province of the courts on inquiry, by means of habeas corpus, to determine the legality of the detention of the party whose extra· dition is sought; and since the federal legislation of necessity is invoked to extradite the prisoner, the courts of the United States have jurisdiction to determine the question of the legality of his arrest. Rev. St. 735.· The courts of the state have also concurrent jurisdiction of the same question, but the resulting judgments of this jurisdiction are not necessarily decisive, and do not conclude the courts of the United States on this federal question, tlJOugh they are entitled to great respect, and are strongly advisory. In the case before the court, the duly-authenticated copy of the indictment of the defendant and one Walton for the offense of grand larceny, said indictment purporting to have been returned by the grand jury of the state and county of New York, together with the requisition of the governor of the state of New York, and the consequent order of the governor of Georgia, is presented as the warrant for the arrest and proposed extradition. It is objected by the counsel for the relator that the indictment does not show a proper charge of crime. It is urged that the crime set out, to-wit, grand larceny, is a felony, and that the indictment is against several defendants, and that there are no averments showing the degrees of the guilt, whether as principal in the first or second degree, or as accessory before or after the fact. This objection, in the opinion of the court, would have been dangerous to the validity of the indictment, it being a felony, under the rules of the common law. This indictment, however, must be considered in the light of the statutory regulation8 pertinent thereto in the state of New York, and we find that in that state parties charged with felony are indicted jointly, precisely as were misdemeanors at common law. 2 Rev. St. N. Y. § 698. In New York it appears that this rule applies to the whole range of felonies, and, as a cons2quence, it follows that principals in the second degree may be indicted and prosecuted as principals in the first. This is the doctrine of the common law, where the punishment is the same. Archb. Crim. PI. (8th Amer. Ed.) 63. The objection, therefore, is not snstained. It is further objected to the legality of this detention that the in-
dictment does not properly allege the ownership of the boncls allege a to have been stolen, ana that the allegation that they were the bonds of the Bethlehem Iron Company, without alleging the corporate character of such oompany, is a fatal defect. Unquestionably there is authority pointing to this conclusion. After careful and anxious consideration of this question the court feels it to be improper that it should discharge the defendant on this ground, and thinks it in every view safer and the better rule to remit the question of the sufficiency of the indictment to be tried and determined by the courts of the state in which it was found. 'rhe settled policy of the government being to facilitate the extradition of fugitives charged with crime; and, in view of the great importance of this policy to the commercial prospm'ity of the country and the integrity in business transactions between the citizens of the several states, it would be a dangerous precedent, and as well in conflict with eminent authority, to hold that such matters of technical irregularity must deny the ex.tradition. Certain affidavits are also offered by the relator, the practical effect of which is a denial of guilt. It is sufficient to say that the court in this proceeding will not consider that question. A proper charge of crime having been presented to the court, it is our undoubted duty to decline to investigate the guilt or innocence of the prisoner. The authorities upon this question are numel"OUS, conclusive, and adverse to the contention of the counsel for relator. It would be otherwise were the arrest made upon preliminary process, and before indictment. In that event investigation would be had, at least, to disclose if there be a prosecution in good faith, and if there be probable cause to suspect the guilt of the party accused. It is further urged, and with great apparent confidence, by the distinguished counsel for the relator, that the facts do not show that the I'elator is a fugitive from justice. It is the opinion of the court that one who goes into a sta,te and commits a crime, and then returns home, is as much a fugitive from justice as though he had committed a crime in the state in which he resided and then fled to some other state. With the other considerations personal to the relator, advanced by counsel, the court can properly have no concern. The law is inexorable, and the court is but its servant, and must, like all others, obey its teachings. The writ is disallowed, and the petition of the relator dismissed.
UNITED STATES V. GIBDOX.
WA.GNER 'I.'. GIBBON. 1
(District Court, D. Nebraska.
ENLISTMENT OF MrNOR-()ONRENT OF
AFFIDAVIT AS TO AGE.
A minor over 16 years of age, who, at the time of his enlistment, makes affidavit that he is 21 years of age, will not, on his own application, be released on habeas corpus, on the ground that he was a minor at the time of his enlistment, and that the written consent of his guardian was not obtained,
J. George M. Wagner, the relator, enlisted in the regular army, at Fort Omaha, on the twenty-third day of September, 1882, to serve for five years. At that time and place, he went before Lieut. Butler D. Price, a duly-authorized recruiting officer, and made his application, in due form,to join the army. He made affidavit before the recrllitingofficer that he was 21 years of age, and that there was no legal impediment existing to his enlistment. After serving 19 months, he has evidently tired of the service, and now seeks to be discharged, solely on the ground of minority at the time of enlistment. Gen. Gibbon, who is temporarily in command of the department of the Platte, made return to the writ, and hearing was had on the merits of the application. The proof produced seemed to establish the fact that the relator was born in Lincoln county, Illinois, on the fourth day of July, 1864. At the time he enlisted his parents were dead. Prior to his enlistment he had a guardian, duly appointed by an Illinois court, and that guardian never did at any time, so far as known, give his written consent to the enlistment of his ward, 'fhere is nothing in the laws of the United States that makes it unlawful for a minor over 18 years of age to enlist in the army. He is certainly competent to make such a. contract under some, though possibly not under all, circumstances. If the natural gnardians-that is, the parents-be living, they are entitled to the services and the custody of the minor until he attains his majority. If the natural guardians are dead, and a lawful guardian exists, he is also entitled to the custody of his ward until he attains his majority. Hence it is that the law requires the written consent of parent or guardian to the enlistment of a minor, in order to make it valid. But this limitation on the right of minors to enlist, applies only to those who have a parent living, or who have a lawful guardian at the time of the enlistment. A minor 18 yea,rs old can, undoubtedly, make a valid contract of enlistment, binding on all concerned, if he has neither parent nor guardian at the time of making such con· tract. When congress revised the laws, it recognized the right of the parents to the custody, service, and control of their minor children, and the right of guardians to the custody and control of their wards; and if either see proper to exercise such control they cannot be deprived
cy Robertson Howard, Esq., of the St. Paul bar.