In re Application of
for Writ of Habeas Oorpus. 1
November 7, 1885.)
On Habeas Oorpus. H. Steenerson and J. W. Oathcart, for petitioner. A. G. M. Spragge and O. A. Oongdon, for the British Government.
NELSON, J. The prisoner, Edward Kelley, was arrested under a warrant issued by Frank I ves, commissioner of the circuit court of the United States for the district of Minnesota, on complaint of a constable of the dominion of Canada for his extradition under the treaty of 1842 between the United States and Great Britain on the charge of murder; and after examination he was committed to the custody of the marshal of the United States for this district, to await the executive order for his surrender. He is now brought before me on a writ of habeas corpus, and the proceedings before the commissioner are sent up on a writ of certiorari. The complaint is in the following words: "COlltIPLAINT.
"United States ofAmerica, District of Before me, Frank rves, a commissioner of the circuit court of the United States in and for said district, personally comes John Lee Johnston, a constable of the dominion of Canada police, who, being sworn, on his oath says, on information and belief, that on or about the twenty-seventh day of November, 1884, at the neighborhood of .Tohnston's ranch, on the Columbia river, in the Kootaney district of British Columbia, in the dominion of Canada, one Edward Kelley did feloniously, and with malice aforethought, kill and murder one Robert McGregor Baird, whose residence was in Missoula, in the territory of Montana, in the United States of America. 'rhe said offense is contrary to the statutes of the dominion of Canada, and the complainant prays that the said Edward Kelley may be arrested and held for extradition, and be further dealt with according to law. JOHN L. JOHNSTON. "Subscribed and sworn to before me this twenty-sixth day of September, A. D.1885.
"Commissioner U. S. Circuit Court for the District of Minnesota."
by Robertson Howard, Esq., of the St. Paul bar.
IN RE KELLEY.
And on this complaint the commissioner issued a warrant for ley's arrest, which was duly executed, and the prisoner brought before him. The warrant is in the following words:
"The President of the United States of A.merica to the Marshal of the United States for the lJistrict 0/ Minnesota, and to his lJeputies, or any or either o/them: "Whereas, complaint on oath has been made to me, charging that Edward Kelley did, on or about the twenty-seventh cay of November, in the year one thousand eight hundred and eighty-four. at the neighborhood of Johnston's ranch, on the Columbia river, in the Kootaney district of British Columbia, in the dominion of Canada, feloniously, and with malice aforethought, kill and murdp.r one Robert McGregor Baird, contrary to the form of the statutes ()f the dominion of Canada: "Now, therefore, you are hereby commanded, in the name of the president. of the United States of America, to apprehend the said Edward Kelley, and bring his body forthwith before me at my office in St. Vincent, in said district, to answer the said complaint, and be dealt with according to law for said offense. "Given under my hand and seal this twenty-sixth day of September, in the year of our Lord one thousand eight hundred and eighty-five. "FHANK IVES, [Sea!.] "Commissioner of the Circuit Court of the United States for the District of Minnesota. "
The regularity of the proceedings before the commissioner, and his jurisdiction, is attacked on the hearing, and many objections urged by the prisoner's counsel. I shall consider briefly two only: First. It appears from the proceedings sent up that at the close of the evi.dence for the prosecution the defendant called a witness in his behalf, and on objection interposed by the couURel for the prosecution it was sustained. This is alleged as a fatal, error. The commissioner undoubtedly erred. The defendant should have been permitted to introduce evidence. The tenth article of the treaty of 1842 declares -that the person charged with the crime of murder shall be delivered up, "provided that this shall only be done upon such evidence of criminality as, accordmg to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and ·commitment for trial if the crime or offense had there been committed." The examination in this case must be conducted according to the laws of the state of Minnesota, where the prisoner is arrested; and by section 13, p. 934, Young's St. Minn., it is enacted that, "after the testimony to support the prosecution is finished, the witnesses for the prisoner, if he has any, shall be sworn and examined." The commissioner failed to observe the mode of procedure designated by the laws of the state of Minnesota" and the pri;;oner's commitment is illegal. He is entitled to be discharged, unless the original warrant under which the arrest is made is sufficient to hold him for exami. nation de novo; and this brings me to the other objection of the pris<mer's counsel: Second. That the warrant under which the arrest
was. made is void, for the reason that it does not show on its face that the oommissioner is an officer authorized to act under the law of congress of August 12, 1848. This law is entitled" An act for giving effect to certain treaty stipulations between this and foreign governments for the apprehension and delivery up of certain criminals," and by its terms the commissioner must be authorized to act as a magistrate in extradition cases. I agree with Judge BLA.TCHFORD (In re Ferez, 7 BIatchf. 34) that the proceeding is special, instituted under the treaty and the act of congress of 1848, and the fact that the commissioner who issued the Wlnrant is authorized so to do is jurisdictional, and must appear upon t.he face of the warrant. It does not so appear in this warrant, and in my judgment the prisoner cannot be legally held under it. He is therefore discharged.
ADAMS V. BELLAIRE STAMPING SAME
(Oircuit Oourt, 8. D. Ohio, E. D.
J?ATENT LAW-RIGHT OF ASSrGNEE OF CHOSES IN ACTION 'fO SUE AT LAW THEREFOR IN HIS OWN ,NAME-APPLICATION OF STA'fE STATUTES OF LIMITATIONS To AC'fJONS FOR THE INFRlNGI!:MENT OF PATENTS.
Plaintiff, Adams, became the assignee of the entire interest in and to the patent a year and more before its expiration, tak-ing with an assignment of the legal title the right to recover all past. damages. Bis title was made up of three chains of title, involving a number of individual interests. The patent having expired, suit was commenced at law, and a general and four special demurrers filed. Query. In sllch a case, can the plaintiff sue in his own name for infringements occurring during the period When his assignors held the legal title, or must his assignors be joined in separate Ruits according as priority between them shall appear Y And, quer.1/, do the state stat. utes of limitations apply to such acth,ns Y Held: F,rst. 'fhat under 4919, Rev. St., plaintiff, by virtue of his title us assignee, has the right to sue in his own name for all infringements, including those of dat.e prior to the assign. ments under which he claims. Moore v. Marsh, 7 Wall 516, distinguished. Second. As to the application of the. state statutes of limitations the authorities are in conflict, and the jury will be instructed, if they flnd for the plaintiff, to find separately, by special verdict, the damages prior and those subsequent tl> the limitation claimed.
On Defendants' Demurrer to Declaration. James H. Raymond, for plaintiff. George W. Dyer, (with whom is Charles H. Grosvenor,) for defendants. SAGE, J. 1. It is my opinion that the plaintiff in these actions, .by virtue of his title as assignee, has the nght to sue in his own name for all infringements, including those of date prior to the assignments under which he claims. This opinion is based upon the provisions of section 4919, Rev. St., that damages for infringement may be re··