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nor will I detain him in custody, he being a subject of extradition, as has been heretofore stated; but when I say this, I do not mean to say that he cannot hereafter be tried for the offenses for which he stands indicted in this court. I hold that he is entitled to a reasonable time to return to the asylum from which he was arrested. What is that reasonable time? Were I called to define it I should say six months; because a man should be permitted to make necessary family arrangements, and it may not reasonably be expected that he can do so in a less time than as aforesaid.

"The United States government not being here to claim the custody of Hawes, and there being no power in this court to compel the United States to return him to the place from which he was extradited, the order of this court is, that the cases of the Commonwealth of Kentucky against Smith N. Hawes, for embezzlement, and for uttering forged instruments of writing, with intent, etc., be continued, and be not again placed upon the docket for trial, and that said Hawes be not held in custody until the further order of this court.

"The logical deductions involved in this, the gravest question ever presented to any court- and when I say that, I mean that I have been unable to find any precedent bearing upon the particular question under consideration - have embarrassed me, but I have found it an obligation to maintain the integrity of my country in its plighted faith in a grave constitutional treaty. I have regarded this case as not a case of Hawes, but a case involving the honor and integrity of my country. Some other judge than I must be selected to violate the plighted faith of a solemn treaty. I hold, under the solemn sanction of my oath, that I cannot violate that by now proceeding to the trial of Smith N. Hawes. I do not mean to say that he may not hereafter be tried; but what I mean to say is, that, in the face of the treaty herein referred to, he is not to be tried until there is reasonable time given him to return to the asylum from which he was taken, He may by his own act put himself within the jurisdiction of this court, and may hereafter be tried. Upon that I now express no opinion.

"Of course, in the consideration of this question I have read all the correspondence between high public functionaries of my own government and that of Great Britain, especially as to the cases of Lawrence and Winslow, and, while it is not proper for me to reflect upon the conduct of my own government, I must be permitted to say that the position taken by Great Britain on this treaty is more in consonance with human liberty and international law than the pretensions of my government.

"Mr Webster, and it will not be denied that he was a great statesman and publicist, in reference to the leading case of McLeod, used the remarkable language that the opinion and decision of the court in that case was not respectable. It was not permitted to him to express any opinion as to the decision of Judge Benedict. In the Lawrence case, whatever may have been the diplomatic talk on judicial expressions, this great country instructed the law-officers thereof not to proceed to the trial of a non-extraditable offense, and even in the case at bar, the United States has had a distinguished representative asking for a postponement or evasion of the decision, whether Smith N. Hawes can be tried for offenses for which he was not extradited."-Cincinnati Daily Enquirer, Sept. 2, 1877.

It is understood that the decision, as above rendered, was acquiesced in by the State authorities. The public

prosecutor, who had taken measures to have it reviewed by a Superior Court, withdrew all further proceedings.

I have quoted somewhat at length from the judge's opinion, not only on account of the principle of law which it establishes that extradition treaties do not, under our constitution, present, as in France, questions for the political department of the government, but are to have applied to them the same rules of interpretation as all other treaties, which, when not inconsistent with the constitution, are to be deemed binding, as the supreme law of the land, upon all tribunals of justice, as well of the individual States as of the United States. The opinion is also of great interest as presenting, for the first time in the judgment of a court, a practical mode by which the provision existing, either in terms or impliedly, in treaties to protect an extradited person, from being tried for other than the offense of which he was surrendered, is to be made available to him. The objection that it is not competent for a prisoner charged with an offense, when arraigned before a court of the country in which it is alleged to have been committed, to appeal to his right of foreign asylum, and which was the proposition assumed in the cases decided in the United States Circuit Court at New York (United States v. Caldwell, 8 Blatchf. C. C. R. 131; United States v. Lawrence, 13 id. 290), as well as in Adriance v. Lagrave, 59 N. Y. 110. in the Court of Appeals of that State, would not seem even to have been suggested in Hawes' case, motions on his behalf being entertained and decided by the court. It is, therefore, not necessary to show that, when the extradition of an individual is granted by one nation to another, the protection of the foreign asylum to the accused party is only impaired to the extent expressed in the warrant, and that, for the cases not excepted or provided for in the convention, and for all other purposes, the person surrendered is to be deemed still legally in the country from which he was extradited; or, as stated in a recent treatise on extradition, "the fiction according to which, for every fact foreign to the extradition, he is still in the territory of the country of refuge, must be completely respected; and if an offense is brought to notice in the course of the proceedings, the result must be the same." Vazelhes Etudes d'Extradition, p. 155.

In France, extradition, whether granted independently of treaty, or by treaty, is deemed a matter of high administration, the tribunals of justice having no power to interpret or appreciate (apprécier) treaties, but only the right and duty to apply them. A reason assigned for this is the possible danger of international difficulties, if the matter was not within the control of the department of the government which regulates the foreign relations.

There is no difficulty necessarily to be apprehended by us from collision with foreign nations, on account of the interpretation of a treaty being vested in the judiciary. It is true that the executive cannot interpose with a court to induce it to render a decision contrary to its interpretation of what the treaty demands. It could not, for instance, supposing it to be prohibited by treaty, either expressly or impliedly, to subject an extradited person to be tried and convicted for an offense for which he was not extraditable, compel the court to try and pass sentence on him for such offense; but it might arrest the proceedings by proper instructions to the public prosecutor,

and such was distinctly stated to be the law by Judge Benedict, in the case of the United States v. Lawrence. He there declared that the matter was "within the power of the government, by reason of its legal control over the prosecuting officer." In that case it would seem that the imbroglio with the British government was owing to the fact that the instructions of the attorney-general were not followed by the district attorney. In reference to the plea on behalf of the prisoner, that he was protected by the convention or agreement between the two countries, the court declares that "all that need be here said is that such an agreement can avail nothing to a defendant setting it up by way of plea to the jurisdiction of the court before which his trial is moved by the government."

In the absence of legislation on the subject, it might be within the power of the governor of a State, if the extradition was for an offense justiciable in a State court, to occasion embarrassment by his refusal to order the proceedings to be arrested on the suggestion of the national executive, that such a course was demanded by the public interest; or the State judges might interpret a treaty differently from what the foreign power claimed to be its true construction, and in which the government at Washington concurred. We have elsewhere shown from what occurred in an analogous case, that the remedy is within reach of Congress, and if so, it may be well asked if it ought not to be applied in anticipation of any contingency.

In the well-known case of McLeod, which arose in 1840, there was a direct collision between the Federal and State authorities. McLeod had been indicted for arson and murder, in connection with the destruction, in the preceding year, within the jurisdiction of the State of New York, of a steamboat employed by the Canadian insurgents. The Federal government decided to interpose, on the ground that the offense, which was the motive of the proceedings, was an act in furtherance of the orders of the British government. Not only did Mr. Seward, who was then governor of New York, refuse to order a nolle prosequi to be entered, at the request of the President, but the Supreme Court of the State (The People v. McLeod, 1 Hill, 378), before whom the matter was brought on habeas corpus, decided that "a subject of Great Britain who, under directions of the local authorities of Canada, commits homicide in this State in time of peace, may be prosecuted in our courts as a murderer, even though his sovereign subsequently approved his conduct by avowing the directions, under which he did it, as a lawful act of the government."

The difficulty in this particular case was terminated by the acquittal of McLeod by the jury. The consequence, however, of that affair, which even menaced hostilities between England and the United States, induced Congress to pass an act that if such cases should arise hereafter, they should be immediately transferred to the courts of the United States. Referring to this law, Mr. Webster, who was Secretary of State at the time, says: "This was a necessary and proper law. It was requisite in order to enable the government of the United States to maintain the peace of the country. It was perfectly constitutional, because it is a just and important principle, quite a fundamental principle indeed, that the judicial power of the general government should be coextensive with its legislative and executive powers. When the authority and duty of this government are to be judi

cially discussed and decided, that decision must be in the courts of the United States, or else the tie which holds the government together would become a band of straw." Works of Daniel Webster, vol. v, p. 130.

By-the-by, we do not find the act, to which McLeod's case gave rise, incorporated in the Revised Statutes. It was entitled "An act to provide further remedial justice in the courts of the United States," and was passed August 29, 1842. United States Statutes at Large, vol. v, 539. It is not supposed that it was intentionally left out by the revisers. But its omission does not affect its legal efficacy, inasmuch as it is provided by section 5596: "All acts passed prior to said last-mentioned day (1st December, 1873), no part of which are embraced in said revision, shall not be affected or changed by its enactment."

Is there any thing in the nature of this question, which may arise in regard to extradition, which would prevent our being exposed to the same dangers in our international relations, as occurred in consequence of the McLeod affair. In the very case of Hawes, which we have been considering, it appears that the governor of Kentucky refused, at the intimation of the general government, to give necessary instructions to arrest the proceedings before they came before the court, and, supposing the court to have taken a view of its powers similar to those maintained by the Supreme Court of New York in opposition to the President in the McLeod case, the trial for embezzlement might have been permitted to proceed, and sentence been rendered in utter disregard, not merely of the true interpretation of the treaty, but of the understanding in accordance with which its operation was provisionally revived. Besides the dishonor attending the violation of an implied pledge, if no other consequence ensued, the carrying out of the declaration of the British government, communicated to ours by Sir Edward Thornton, in assenting to the provisional revival, was inevitable, and the extradition clause of the treaty would, without further consultation with our government, have been terminated forever.

The act of 1869, for the protection of a person extradited under a treaty (Revised Statutes, § 5275), I consider, despite of the opinion of the Court of Appeals in Adriance v. Lagrave, sufficient to meet the case of a trial for an offense for which the prisoner was not surrendered. See Albany Law Journal, vol. iv, p. 95.

In Switzerland, whose institutions are not dissimilar to ours, by the Federal law of 27th of June, 1874, for "the organization of the Federal judiciary, in accordance with the new constitution of that year, the Federal tribunal takes cognizance of conflicts of jurisdiction between the Federal and Cantonal authorities, of differences between the Cantons, of demands for extradition, and of complaints made by private individuals concerning (1) the violation of rights granted by the constitution of their Canton, and guaranteed by the Federal legislature; (2) the violation of interCantonal conventions and concordats, or of foreign treaties.

I do not propose to return to any of the subjects discussed in my preceding articles on Extradition, nothing having occurred to induce me to alter, in any respect, the views therein expressed, and which have been sanctioned by leading law journals of London and Edinburg by the reproduction of them in their columns; while our eminent colleague, of the Institute of International Law, Dr. von Bar, has made them, in

connection with the papers of Mr. Westlake, read before the National Association for Social Science, Transactions, etc., 1876, p. 159, which differ from me on the points involved, the basis of his Etude in the Revue de Droit International, vol. ix, p. 1-13, on the conflicting construction, by England and the United States, of the treaty of 1842, of which we gave a resume in our letter on the proceedings of the Institute. Albany Law Journal, xvi, p. 133.

Professor von Bar, while coming to the conclusion that the British government is formally right in refusing extradition in the presence of the pretension of the American government to reserve to itself the right to prosecute the extradited person for a crime or misdemeanor (crime on de'lit) other than that which was the motive of the extradition, and while, moreover, he does not admit the suggestion of Mr. Westlake that the formal right should be replaced by a general clause, that "in no case shall there be a prosecution for a political offense," and considers the government and the courts of the State obtaining the extradition as wholly unsuitable to decide the question, whether the crime or misdemeanor is a political offense, he, however, concludes, contrary to our views, that a person extradited may, by the consent of the government which made the surrender, be tried for another than the offense for which he was extradited, and that, to await this consent, he may be provisionally detained; but he adds, if the consent is not obtained in the period indicated, the prisoner is entitled to claim to be discharged without being tried. It is for the government from which the demand was made to decide whether the consent should be given, but Dr. von Bar maintains that it should only be withheld for exceptional causes. This suggestion of our eminent friend does not meet the objection to a trial for an offense other than the one for which the extradition was granted. It deprives the prisoner of the right which every accused person has to be advised of the offense for which he is to be arraigned. To admit the proposed rule would be to allow an indictment for one crime to be used for the prosecution of another and distinct offense.

The views of Dr. von Bar are not to be understood as an exposition of existing law, but as a proposition for insertion in future treaties.

Before closing this letter, I may mention, what I have not seen noticed in any American journal, the conclusion of a new treaty. 14th August, 1876, between Great Britain and France, to supersede that of 1843, under which so few cases of extradition have occurred, that it can scarcely be considered to have even been in force.

A treaty made in 1852, as we have mentioned elsewhere, was defeated after having been ratified by both parties, in consequence of the refusal of the British Parliament to admit the concessions to France, made in disregard of the recognized principles of English criminal jurisprudence; but as the act of 1870-3-which would seem to have entirely changed, in other respects, the policy of England, besides extending extradition to cases of conviction as well as of accusation, and applying it to every conceivable misdemeanor, authorizes the Crown to carry such treaties into effect, with the sanction of the Privy Council, it is presumed that no difficulty could have proceeded from England. Under the present constitution of France it has been understood that treaties of extradition, as

well as others, must receive the sanction of the legislature.

M. de Vazelhes, in his recent Etude sur l' Extradition, 1377, p. 60, says, that the new treaty of 1876 had, at the time of the publication of his book, received the approbation of the Senate, but had encountered some opposition in the Chamber of Deputies. It has not been as yet, so far as I am aware, promulgated.

This treaty is, for the greater part, the reproduction of that of 1852. According to its terms, in order that extradition may be accorded, the offense must have been committed in the territory of the party demanding the surrender. It will be remembered that in this respect Great Britain and the United States differ from those continental States which take jurisdiction over their subjects for ordinary crimes committed abroad. The Franco-Belgian treaty of the 18th of August, 1874, therefore, on the contrary, authorizes extradition in favor of the State, competent ratione persona, provided that the legislation of the country from which the surrender is demanded authorizes the prosecution of the same offenses committed out of its territory. In the old Franco-English treaty, no mention is made as to the exclusion from its operation of the citizens or subjects of the respective countries; but France ever denied the obligation under it of delivering up her own people. The proposed article in the new treaty is interesting, as being a recognition of the rights of naturalized citizens, as first established by the Act of Parliament of 1870, and by the treaty of that year with the United States. Art. 2. The respective subjects, either by birth or by naturalization, are exempted from extradition. However, in the case of a person who, after the crime or misdemeanor, of which he is accused or condemned, should have obtained naturalization in the country on which the demand is made, this circumstance shall not prevent the arrest and extradition of such person in conformity with the stipulations of the present treaty.

To the report of the Royal Commission of 1868 we have had frequent occasion to refer in our investigation of the history of extradition and its bearing on criminal jurisprudence. It was announced some weeks ago that a new commission had been created to consider the laws and treaties relative to extradition. This commission consists of the Lord Chief-Justice, Sir Edward Cockburn, Lord Selborne (ex-Chancellor), Lord Blackburn (Lord of Appeals in ordinary), Sir Richard Bagallay, Sir William Baliol Brett (Lord-Justice of Appeal), Sir John Rose, Mr. Russell Gurney (member of the mixed commission under treaty of Washington, which sat in this country), Mr. McGullagh Torrens, Sir William Vernon Harcourt, and James Fitz James Stephen. Does not this suggest the expediency of a similar measure on the part of the United States, for which the time would seem most opportune? The common action of the two commissions would establish for all time for the Anglican race the principles of extradition.

I am not aware that the principle of extradition or the details connected with its application have ever received any extended discussion in either House of Congress. Mr. Webster's defense of the treaty of Washington, being confined, so far as respects extradition, to the coterminous intercourse with the British American provinces.

The motion of Mr. Morrill, of Vermont, made on the 13th of December, 1875, with a view of having a pro

vision made by general law for extradition of fugitives from justice, seems to have been attended with no action on the part of the Senate.

I am, my dear sir,

Yours, very truly,

W. B. LAWRENCE.

ADDRESS OF PRESIDENT PORTER TO THE STATE BAR ASSOCIATION.

GENTLEMEN-It gives me great pleasure to comply with the request of the committee of arrangements in saying something as to our common purposes and aims. A formal address to my professional brethren would be regarded by me and by them as an act of inexcusable presumption. I feel assured, however, that you expect from me a few words, and they will be brief. Ours is an undertaking by practical men, and it is designed to be of practical benefit to the profession and to the community at large. In all such matters, brevity is of primary importance. In the convention at Albany which led to the American revolution, and over which Benjamin Franklin presided, no speaker occupied twenty minutes, and few over five, though the words they spoke were of vital interest to the country. Let us prove in this association that lawyers can speak briefly, if not always effectively, and that they can direct what they say to the promotion of useful practical results.

I gratefully appreciate the honor of being called upon to preside at the organization of the association, and its first annual meeting, and beg leave on the surrender of the trust at the close of the present session, to return to you my warmest acknowledgments for this mark of your confidence and regard, and to exchange congratulations with you on the establishment of an institution, designed for noble ends, and which, if we and our successors are true to our duty, will elevate the standard of professional excellence and honor, and advance the interests and prosperity of the great State in whose capitol we are convened.

If, as we trust, this association shall be permanent, each of us who are concerned in its organization, will have in its record a place of honor to which our descendants may refer with no unworthy pride; and we may all claim a title to the remembrance of our brethren in aftertimes, as among the founders of an institution, identified with the development of jurisprudence, and with the permanent interests and prosperity of the State.

Ours should have been the first of the three learned professions, as they were formerly classified, to form a State organization. Not only is it the last of the three to discharge this public duty, but meantime another great profession, the growth of the present century, has placed itself in our van, and the journalists have taken precedence of the bar in that community of action which we all owe to the commonwealth.

I trust that we shall all work together in a kindred spirit for the advancement of noble ends, tending to our common prosperity, and to the general benefit of the community. And yet, it is only a just tribute to our predecessors at the bar to say, that without the existence of such a bond of association a spirit of unity and harmony has prevailed in our profession which has made us brethren in the noblest sense, and which, notwithstanding the antagonisms of political opinion and the collisions of forensic strife and professional emulation, has fostered in us all a generous

appreciation of the honors and achievements of our associates at the bar, and a just pride in the profession which has been irradiated by the learning and genius of the bench and the bar, to which every city and county in the State has made, from time to time, its appropriate contribution.

Hitherto the influence of the bar has been mainly incoherent, individual and personal. It has been wielded by the leaders, rather than by the great body of the profession, who could have used it with more power and effect for the general good. And yet, how beneficent that influence has been, even within these limitations. How much has been done for the maintenance of the constitution and the laws for the vindication of public and private rights, for the preservation of the administration of justice in its purity, its dignity and its authority, by those who have achieved for themselves a prouder and nobler reputation in the legends and traditions of the bar, than even in the historic records which identify them with our State and national prosperity.

Proud as we justly are of the names of our great statesmen, we are not less proud of their peers at the bar, some of equal and some of more commanding genius, who have left upon the pages of our jurisprudence, a less conspicuous but more enduring record of effective labor and intellectual power.

If the dead could be recalled to life, what a roll-call we could make from the State capitol. We might begin with Albany. The first name would be that of Alexander Hamilton, whose residence here was brief, but entitles us to claim him as an Albanian. We could follow it up with the names of Chancellor Kent, Ambrose and John C. Spencer, Chief Justice Savage, Martin Van Buren, Samuel A. Talcott, Benjamin F. Butler, Abraham Van Vechten, John V. Henry, Daniel Cady, Deodatus Wright, Samuel Stevens, Marcus T. Reynolds, Nicholas Hill, Greene C. Bronson, Ira Harris, Rufus W. Peckham, John H. Reynolds, and a host of others among the dead and the living, whom it might seem invidious to name. We might proceed with the roll-call and include names from other portions of the State, like those of Joshua A. Spencer, B. Davis Noxon, Elisha Williams, Thomas Addis Emmett, Thomas J. Oakley, Lewis B. Woodruff, Hiram Denio, Ogden Hoffman, James T. Brady, Daniel Lord, and in view of his having been already within the gates of death, I may be pardoned for adding the great name of Charles O'Conor. Not only could we call all these, but behind them is a constellation of great jurists and advocates which no man can number and no lawyer can forget.

We may well feel a sense of honorable pride in having our names associated in some degree with theirs, in that which concerns the honor of our profession and the advancement of the cause of public justice. Do we, in our day and generation, owe any duty to the profession and to the State? The leading characteristic of the age is growth, development and expansion. Is it not our duty to add to the effective forces of the State in all the agencies of human progress and improvement? Is it not in our power to exercise a healthful influence upon each other? Can we not do something in our collective capacity to cause good men to be in good repute, and bad men in bad repute? All human institutions are flexible. They are being molded, from generation to generation, into better and more effective forms. Can we do nothing to contribute to so noble an end? The influence of our pro

fession in the next generation depends, in a large degree, on the manner in which we fulfill our duty. How better, or how otherwise, can we discharge our personal obligations to the profession than by advancing its interests in all after time, and impressing upon our State legislation the well-considered convictions of the bar on questions affecting the individual rights of their clients and the general good of the community?

In considering the question whether it is our personal duty to advance a work of such public importance, it should be remembered, first of all, that we are clothed with a trust which, under our system of jurisprudence, no lawyer can disregard; and the obligations of that trust reach far beyond the present generation.

It should also be remembered that there are many of our number who have more of life behind than before us; who must do now, whatever we propose to do, for the benefit of our profession, or for the advancement of the general good - who see before us the lengthening of the shadows and the going down of the sun. But there is the further and more controlling consideration, that while we have eachour personal clientage, the State, which rises above them all, with its paramount authority, with its vast interests and its grand system of jurisprudence, is the common client of us all; and in the discharge of every minor professional obligation, we are to see to it, that through no wrong or neglect of ours shall any wound be given to the authority of the courts of justice, or any detriment come to the Commonwealth.

We live in times when the fall of a throne moves men scarcely more than the fall of a leaf. The bar has always been the most conservative element of civilization. Here, and everywhere, it should prove its fealty and loyalty to the common cause of public order, equal justice, constitutional law and individual liberty.

It would dishonor us as a profession, if any member of our body should fail in any conceivable exigency, to maintain the rights of the citizen under the ægis of the State or the Federal Constitution. It would be equally a dishonor to our profession, if any member of the bar should fail to assert, in behalf of the humblest client, every right guaranteed to him by the laws.

The tribunals of justice, State or National, have never yet failed to protect the rights of the citizen when the members of the bar have been true to their trust. If there have been seeming exceptions in troubled times, they have ceased to exist.

With our knowledge of the courts as they are to-day, we may confidently affirm that we can look to them for justice with the same undoubting faith with which the seaman looks to the north star, which never breaks faith with the mariner.

It is proper to say, what I know you will all approve, that if there are defects in our State Constitution- and nothing human is free from defects - it is not our purpose to propose any change in what we all recognize as the supreme and ultimate law of the State. That Constitution, amended as it has been, from time to time, by the people, stands like a noble arch which has proved its strength by every weight imposed upon its structure.

Our system of judicature, inherited from our Anglo-Saxon ancestors, and improved from generation to generation, should be preserved and perpetuated in its essential elements. Its forms, like all mere forms,

should yield to the general growth and development of jurisprudence. It is not to be denied that the Code of 1848, though many of us did not favor its adoption, has proved to be beneficial, and has commanded the general approval of the bench and the bar.

Whether the changes which have been recently inaugurated are entitled to the like approval, is one of the questions which demands your most serious consideration.

I may be pardoned for saying that the bar has always been conservative-that it is only upon the fullest deliberation that we would change the laws, and that it is sometimes better to reject what we do not fully concur in than to acquiesce in what we can neither heartily approve nor entirely condemn.

Our responsibility is greater, perhaps, than we would be 'willing to assume. If all our forests were converted into ships, if all our minerals were transmuted into gold, it would not compensate us for the loss or the serious detriment of a system of judicature, which makes property secure, and every personal right inviolate.

But we have higher and nobler aims. We deal, not with the questions of the hour, but with those which reach into aftertime.

While our interests are interlaced with those of the whole community, we have a special department of labor in which we can most aid the common weal, by co-operating in whatever tends to the elevation of the profession, the successful administration of the laws, and the growth and development of our civilization.

Men die, but the institutions they unite in founding often live after them. Let us trust that this association may endure, and that it may exercise a collective and permanent influence. We are strengthened by association with each other. The standard of professional integrity and honor is elevated by mutual intercourse, and by the consciousness that our own status is determined by the enlightened judgment of our brethren. The weight of the profession in the community and its influence upon public affairs are greatly increased, when it is known that the ends they aim to promote are not those of personal ambition or individual rivalry, but such as are identified with the general good, the advancement of the highest interests of society, the perfecting of our system of jurisprudence, the maintenance of public order and the stability of private rights.

APPEAL BY PARTY NOT INJURED BY

DECREE.

the case of Ex parte The N. & S. Alabama Railroad Co., recently decided by the Supreme Court of the United States, one Strang brought an action in the United States District Court to foreclose a mortgage upon a railroad. Subsequently the N. & S. Alabama Railroad Company was, upon its own application, made a defendant in the foreclosure suit, it claiming to hold a mortgage prior to that of Strang. Thereafter, one Young, holding a statutory lien upon the same property, commenced an action in the United States Circuit Court to enforce the statutory lien, and Strang, the trustees under the Strang mortgage, and the North and South Alabama Railroad Company were made parties, and the latter, by answer, claimed priority to the other incumbrancers. Subsequently

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