« AnteriorContinuar »
taining the validity of said deed from Phehelor the proceedings or decree rendered therein, Benton to said Daniel S. and Lewis Benton, of are pot recorded in Delaware County, Ohio. the said land in Delaware County. The decis. Mary J. Shafer's mortgage, it is a greed, is jon of said comn'op pleas court was rendered dated October 20, 1892, filed for record NopMay 13, 1881, and on appeal from said com.einber 11. 1832. mon pleas court the district court rendered Ibe It is also agreed that it is a fact that the following decision March 10, 18-3 viz.: plaintiff, Mary J. Shafer, was, at the date of
"On consideration whereof the court do find the commencement of ihe action in Loion that the equily of the case is with the plaintiff County, and ever sinre has been, a resident of and cio's peuiuioners, and that the cecds of Delaware County, and never a resident of conveyance mentioned in the pleading from Union Cruniy. Pbelé Benton to Orsoo Bedion, Lewis Lentou And that sie bad no actual notice in fact, and Daniel S. Benton, dated August 9, 187%, otlier than the colice which is presumed in should be set sile and beld for waught; and law, of the pendency of said suit in Union therefore it is ordered, ad judged and deciced County, or of the proceedings tberein, when by the court ibat said dads of conveyance be Daniel S. Benton executed and delivered to and they are l'ereby set aside and beld for bier the pote and mortgage in suit. Daught, and said estate of Iliram and l’bebe Ufon tbe aforegoin' agreed statement of Benion is bereby ordered to be partitioned and facts, the finding and judgment of the circuit seltled lbe same as if saij deed had never been court were as fo.lows: made."
“The court find on the issue joined between Avd finding and decreeing among other the plaintiff and ibe defendants i bal the equity things that the inte rust of Daviel S. Benton, as of the case is with the plaintiff. And the court one of the beirs of said Pbebe Benton in ile find that the defendani, Daniel S. Benton, bas land in Delaware Couniy, was one forts-cighth been duly served with notice by publication, pari, wlich amounted to $84.73, net proceeds, according to law, of the pending of ibis action, and ordered the partition be made of suid and is in default sor answer and demurrer, and premises.
that the allegations of the peticion as to him are Which judgment was affirmed by the su. Werely coniessed by him to be true. And the preme court and certifica to the Court of Union court do furllier find all ibe other issue's be County, and the con missioners of partition in 'n een the plaintiff and said defendants, Lewis said crise, ar pointed by said court, baving rc- Benion and Aaron and Nancy Clover, in favor ported the premises put susceptible of division of the plaintif and against il.c sait defens'an's ile cout thereupon ordered suid premises to And that there is due the plaintiff from the de be sold by the sheriff, which was accordingly fendant, Daniel S. Denton, on the promissory done, and Lewis Benion became the purchaser poic set forth in the petition, wiib the inierest at said sale of said tract of land in Delaware thercon to the first day of this term, to wit, County, consisting of 122”, acres, and receiver December 14, 1886, the sum of $701.44, with bis deed for the same, and afterward conveyed interest at 8 per cent 1rom that daie. the same lo Aaron Clover, defendant, and the "The court further find that in order 10 se proceeds of ibe sale, by inc sheriff aforesaiit cure the paynent of said notc and interest, the were distributed according to tie order of the said Daniel s. Beriwn exccuted and delivered Uvion County Court 10 said heirs of Phele 10 said Mary J. Shafer, plaintiff, bis certain Beuton, deceased, and as one of said heirs, 10 mortga te as in the petition describeri, ard on Danic S. Benton, one forty-eighth part. The premises therein described. That said
The above record of fucis is admitted so far mortgage was duiy recorded in volume 28, as the record thereof may be competent evi page 149, etc., November_2:3, 1882, in the dence in the trial of this case.
Recorris of Mortgages of Delaware County, Avd it is furt:cr admilied as a fact in this Olio, and is a valid lien on the premises in the case that I bebe Benton is the person who made petition described, and that the conditions in the deed of conveyance of the undivided one said mortgage have been broken and said dced balf of suid lavd in 1 claware County, Obio, of has become absolute. wbich she brid the title in fee simple, and that “It is therefore alijudged and decreed by the she died August 26, 1879.
court that unless the defendant, Daniel S. BenAnd it is admitted as a fact that the deed ton, shall within lve days from the entry of maile wy said Phebe Lenton to Daviel S. Bentbis decree pay or causc to be paid to the clerk top and Lewis Denton is a general warranty of the court of common pleas, to which this decd, purporting to convey the undivided one case is remanied for furtber proceedings, the balf of said land in Delaware County to suid costs of this case, and to the plaintiff bereid the Daniel S. avd Lewis Benton, their heirs and sum of $761.44, so found due as aforesaid, assigus in fee simple, and that the date of said with interest at 8 per cent from the 14th day of deed is August 9, 1818, and the same was tied December, 1886, ilic deleddant's equity of rein tbe recorder's ollice of Delaware County, demprion be foreclosed and said premises be and recorded in volume 12, pages 33 and 34, sold, and that an order of sale issue therefor to August 27, 1878, Record of Deeds of Delaware the slieriff of Dejaware County, Ohio, directCounty, and under abich deed Lewis and ing bim to appraise, advertise and sell said Daniel S. Lentop went into possession, and premises as upon exccution, and report his pro under which uile Mary J. Shafer claims her cecdings to the Court of Common Pleas of rights in this action as well as to whatever title Delaware County, Ohio. the said Daniel S. Benion bad as one of the "It is further ordered that this cause be re heirs of Phobe Berton, deceased.
manded 10 tlie Common Pluas Court of DelaIt is furilor admitted as a fact that the record ware County, Ohio, to carry this decice into of the pendeucy of said suit in Upion County, l execution avd for all further proceedings." To all of which indings, rulings and judg. may be had in any county wherein a part of ment, the defendants died at ibc time, by their such estate is situated, and also in acrions to counsel, except, and ibereupon the defendants recover real property whin the property is an filed a notiou for a new triul, for reasons set entire tract, yet, in partition, each levant in forth in suid motion, wbicb motion was over. common, coparcener or other interesied rer. ruled by the court, to wbich the defendants son, is entiiled to be named as defendant theredid at ilic lime except.
in; and in an action to recover real properiy in This proceeding in error is prosecuted to re- an entire tract and situate in more than one verse the judgment of the circuit court. county, all persons claiming tille to or an in.
Messrs. Jones & Lytle, for plaintiffs interest in tbe property may be made defendants, error:
Conceding that all the proper pariies were He who purchases during the pendency of a before the court at the commeucement of the suit is bound by the decree that may be made action in Union County, and up to the time against the persons from whom be derives when Mary J. Shafer received her morigage title.
from Daniel S. Denton, the question arises, Wells. Res Adjudicata, $ 32, and authori. whether, upon the agreed facis in the present ties cited; Shirleuv. Fearne, 33 Miss. 666; Com. case, she is to be concluded by the judgment v. Dieptenbach, 3 Grant, Cas. 375, ciling Bishop rendered in the Union County action. To that of Winchester v. Paine, 11 Ves. Jr. 197; Metrop action she was not a party; at the date of its olis Nut, Bunk v. Sprague, 21 N. J. Eq. 535; commencement and ever since she has been a Walker, Am. Law, p. 419, and note c. resident of Delaware County; and she bad no
By the doctrine of lis pendens it is well set. I actual notice of the suit in Union County, or tled ihat a purchase made of property actually of tbe proceedings therein, when Daniel s. in litiga!ion pendente lite for a valuable con Benton executed and delivered to ber the pote sideration, and without any express or implied and mortgage in litigation. She took her notice io point of fact, affects the purebaser in mortgage after searching the records of Delathe same manner as if he had such police, and ware County, where she found the deed from be will be bound by the judgment or decree in Pbebe Benion to Daniel S. Benton duly rethe suit.
corded, and no record of any lied or pending Metropolis Nat. Bank v. Sprague, supra; 1 suit allecting the title of the Delaware County Story, Eq. par. 405, and authorities cited, note land. 1 (a); Bishop of Winchester v. Paine, supra; The decision of the Court of Common Plcas Green v. Rick, 121 Pa. 130; Newman v. Chap- of Union County was rendered May 13, 1881, man, 2 Ranil. 98, 14 Am. Dec. 774–779, note. and ibe tipal decree in tbe action was rendered
Tbe judgment in a real action overreaches on appeal, March 10, 1883, by the district an alicnation after writ.
court. The mortgage to Mary J. Shafer lears bennet v. Williams, 5 Ohio, 463; Ilamlin v. dale October 28, 18-2, and was tiled for record Beran8, 7 Ohio(pt. 1) 101; Toierton v. Williard, November 11, 1882. It is contended, therefore, 80 Olio St. 579.
That, notwithstanding the fucts in the case, as Mr. J. Hipple, for defendant in error: the suit in Uniou Courty was pending when
The court in Union Coun'y bad no jurisdic Daniel S. Benton execuied and delivered to tion of the action to recover the real estate in her the mortgage on the lands in Delaware Delaware Coudiy.
County, she acquired no interest in the subject Rev. Stat. SS 3022, 5023.
matter of the suit, as against the title of Lewis A jurigment rendered by a court having no Benton, the purchaser at the partition sule, and jurisdiction of the subject matter or of partics the other plaintiffs in error. is void and may be shown in any collateral or Tue rule concerning tbe effect of lis penilens, other proceeding in which it is drawn in ques. unmodified by statute, would seem in some in. tion.
stances stern and inequitable in its operation. Gilliland v. Sellers, 2 Ohio St. 223; Buchanan In Bellamy v. Sabine, 1 De. G. & J. 666, it v. Roy, 2 Ohio St. 271, 269; Rohn v. Dunbur, was said by Turner, L. J.: “It is not correct 13 Ohio St. 572; Evans v. lles, 7 Olio St. 233; to speak of lis pendens as affecting a purchaser The General Buell v. Long, 18 Obio St. 521. ibrough the doctrine of potice, though un.
doubtedly the language of the courts often so Dickman, J., delivered the opinion of the describes its operation. It affects bim, not becourt:
cause it amounts to police, but because the law The oliject of the suit in Union County was does not allow litigant parties to give lo others, to set aside the deed of conveyance, executed pending the litigation, rights to tbe properly by Pbebe Benton 10 Daniel S. Benton and in dispute, so as to prejudice the opposite Lewis Benton, of the tract of land in Delaware party.' And yet the doctrine of notice has County, upod wbich Mary J. Shafer Lolds the not been eliminated in determining the effect mortgage in controversy, also, to recover tbe of alienating property in dispute, peuding the real property embraced in the mortyage, and litigation, to cause partition of the same to be made But, the rule concerning constructive notice among ibe beirs of Phebe Benton. In the by lis pendens bas always been regarded by the same suit, partition among the same heirs was courts as a harsh one in its application 10 bona sought of another tract of land, situated in fide purchasers for value. Union County. The land in Union County is lo Huyuen v. Bucklin, 9 Paige, 51?, Chancele pot a continuou18 and entire trict with the landlor Walwortb said: “This common-law rule of in Delaware County, but the two are separate requiring purchasers at their peril to take notice and independent iracis, several miles a part. of the pendency of suits in courts of justice,
Although when the estate is situated in two for the recovery of the property they are about or more counties, proceedings for parution I to purchase, although it is nearly impossible
that they should actually know that such suits | fected, a purchaser is not presumed to have have been commenced, has always been con such knowledge of the pending action or prosidered a bard rule, and is by no means a ceedings leading to the judgment, and hence favorite with the court of chancery.". The tbe Statute requires the judgment to be restringency of the rule has led the English Par- corded in such county before it can operate liament and the Legislatures of many States therein as notice to a purchaser, as provided in to interfere, resulting in most material statutory the preceding $ 5055 of the Revised Statutes. modifications and restrictions. An example of In the case at bar, it is among the agreed such legislation is found in the English statute facts that the proceedings, or decree rendered, which provides that a pending suit will not in the suit in Union County, have not been reaffect a purchaser for value and without ex- corded in the County of Delaware. press potice, unless a notice of lis pendens bas If the purchaser of a tract of land situated been properly registered in compliance with entirely in the county of his domicil, who bas the statutory directions. Stat. 2 and 3 Vict. no actual notice or information of any judicial chap. 11, $ 7; Pom. Eq. Jur. 8 639, 640. proceedings in any county in reference to such
Our own statutory provisions are found in land, searches the records of the county wbere SS 5055 and 5056 of the Revised Statutes. the land is located, and finds po pending proSection 5055 reads as follows: “ Wben the ceedings, judgment liens or oiber incumbrances summons has been served or publication made, affecting the title to the same, it is not the inthe action is pending so as to charge tbird per tent of the Statute that such purchaser sball sons with notice of its pendency; and while be compelled to examine the records of the pending, no interest can be acquired by third courts of every county in the Stale, to find persons in the subject matter thereof as against whether a suit is pending that would affect the the plaintiff's tiile.”
title. And the section of the Siatute now Under this section, if the land mortgaged to under consideration, in the protection of the Mary J. Shafer bad been situated in Union innocent purchaser for value and without acCounty instead of Delaware County, she would tual potice, accordingly provides that a judghave taken the mortgage with constructive meot rendered in a county otber than that in potice of the pending litigation, and would which the purchased part of the land lies shall bave acquired do interest in the property, as be recorded in the county where such land is against the title of the plaintiffs in the action. situated, before it shall operate therein as The general rule is that, as to real property notice of the pendency of an action in the located within the jurisdiction of the court coupy where such judgment was rendered. where its judgments and decrees may become But the doctrine of lis pendens, which has or be made liens upon the property, all men been invoked in bebalf of the plaintiff's in ermust take notice of and be bound by the peod. ror, rests upon the jurisdiction of the court ing litigation without regard to residence. But over the subject matier involved in the suit. a mortgagee of real property not part of an "To make the pendency of a suit notice, so as entire tract situate in more than one county, to affect the conscience of a purchaser, it is will not be charged with constructive notice of essential that the court have jurisdiction over an action for the recovery of such property, the thing.' McLean, J., in Carrington v. pending in a county other than that in which Brents, 1 McLean, 167. the property is situated.
In June8 v. Lusk, 2 Met. (Ky.) 356, it is said Section 5056 of the Revised Statutes, on the by Duvall, J.: Unless the petition shows subject of lis pendens as to suits in other upon its face a case for the jurisdiction of the counties, provides as follows: “Wher any part chancellor, the proceeding cannot operate as a of real property, the subject matter of an ac- lis pendens, even from the date of tbe service tion, is situate in any county or counties other of process, so as to affect the property sought than the one in wbich the action is brougbt, to be subjected, or to overreach a subsequent a certitied copy of the judgment in such action sale or other disposition of it." See also must be recorded in the recorder's office of Fonbl. Eq. B. 2, chap. 6, § 3, note n; Sorrell such other county or counties, before it shall v. Carpenter, 2 P. Wms. 482; Worsley v. Earl operate therein as notice so as to charge third of Scarborough, 3 Atk. 392; Bishop of Winchespersons as provided in the preceding section ; ter v. Puine, 11 Ves. Jr. 191; Murrayv. Ballou, but it sball operate as such notice, without 1 Johns. Ch.566; Bennett, Lis Pendens, 55 98record, in the county where it is rendered.” 100.
By this section of the Statutes, where part It is true that the action in Union County of the real property in litigation is located in was to have partition of lands lying in that the county where ihe action is brought, and county, and also in Delaware County; and part in another county, the judgment, io tbe when the estate to be partitioned is situated in county where it is rendered, is made to operate iwo or more counties, the proceedings, as beas pouce of the pending of the action, witbout fore observed, may be had in any county record. In the county where the action is wherein a part of such estate is situated. But, brought and judgment rendered, and the real the purpose of that action, us appears from property or a part thereof is situated, it is pre- the agreed statement of facts, wis also to set sumed, under the Statute, that a purchaser of aside the deed of conveyance made by Phebe the subject matter of the suit situated in tbai Benton to Daniel S. Benton and Lewis Benton, county has knowledge of the prior proceedings of the tract of land in Delaware County mortupon which the judgment is founded, without gaged to Mary J. Shafer, "and to recover the regard to its record. But in a county wbere said real estate situated in Delaware County." the action is not brought, and the judgment is By $ 5023 of the Revised Staiutes, “when not rendered, and the title to real property the property is situated in more than one therein located is sought to be changed or af-I county, the action may be brought in either;
but in actions to recover real property, this can | action to recover the real property was brought only be done when the property is an entire in Union County, where vo part of the land tract."
embraced in the mortgage was located, the deThe mortgaged real property situated in fendant in error, Mary J. Sbafer, cannot be Delaware County was not part of an entire held chargeable with constructive notice of the tract situate in more than one county, but was pendency of the action. a separate and independent tract of land lo- Judgment affirmed. cated entirely in Delaware County. As the
WISCONSIN SUPREME COURT.
Elizabeth MOLETOR, by Guardian ad Litem,, released on bail or acquittal on trial, he is sub. Appt.,
ject to arrest on civil process.
Williams v. Bacon, 10 Wend. 636; Lucas v. Mathias SINNEN, Respt.
Albee, 1 Denio, 666; Lynch's Case, 1 City Hall
Rec. 138; Shotwell's Case, 4 City Hall Rec. 75; (......Wis.......)
Moore v. Green, 73 N. C. 394; Adriance v. LaA person who has been brought within grave, 59 N. Y. 110; Slade v. Joseph, 5 Daly, tbe jurisdiction of a court from an. 49, 6 Pa L. J. 330: Key v. Jetto, 1 Pittsb. 117;
187; Com. v. Daniel, 4 Pa. L. J. Rep. (Clark) other State, upon a requisition, as a fugi. tive from justice, and has been tried for or dis- Scott v. Curtis, 27 Vt. 762; Hare v. Hyde, 18 . charged as to the offense charged against bim, is Ø. B. 391; Jacobs V. Jacobs, 3 Dowl. P. Č. 675; pot subject to arrest on a civil process until a Reg. v Douglas, 7 Jur. 39; Goodirin v. Lordon, reasonable time and opportunity have been given 1 Ad. & El. 378; Addick: v. Bush, 1 Phila. 19; him to return to the State from which he was Bours v. Tuckerman, 7 Johns. 538; Lagrave's
Case, 14 Abb. Pr. N, S. 333, note. (March 18, 1829.)
Messrs. William H. Seaman and Fran.
cis Williams, for respondent: APPEAU BE plainoits from an order of the
Wbeie tbere is an irregular arrest, and an Circuit Court for Sheboygan County set- advantage is taken of the irregularity to charge ting aside the service of summons and combim in custody at the suit of another person, plaint and vocating the order for arrest of the courts of law will discharge him from defendaut. Affirmed.
both. The case sufficiently appears in the opinion. Ex parte Wilson, 1 Atk. 152; Toronsend v.
Mr. D. T. Phalen, wiih Mr Simon Gil. Smith, 47 Wis. 623; Carpenter v. Spooner, 2 len, for appellant:
Sandf. 717; Mattheirg v. Tufts, 87 N. Y. 568; If the defendant was a fugitive from justice Person v. Grier, 66 N. Y. 124; Compton v. at the time he entered upon, or took up, his Wilder, 40 Ohio St. 130; Prople v. Judge, 40 residence in the State of Illinois, then he can. Mich. 729; Cannon's Case, 47 Mich. 482; Bald. not claim a legal residence, domicil or citizen. voin v. Judce, 48 Mich. 525; Sherman v. Gundship in the State of Illinois; for bis residenre lach, 37 Mion. 118; Chubbuck v. Cleveland, 37 tbere lacks, in law, the bona fide intent, which Minn. 468; Pulmer v. Ruan, 21 Neb. 452; is the legal foundation of a residence or domi- Jacobson v. Hosmer, 76 Mich. 234; Ilalsey v. cil for the purpose of acquiring a citizenship. Stercart, 4 N. J. L. 366; Williams ails. Reed,
2 Bouvier, L. Dici.; Anderson, L. Dict. 892; 29 N. J. L. 335; Atchison v. Morris, 11 Fed. Dutcher v. Dutcher, 33 Wis. 658; Hall v. Hall, Rep. 582; Small v. Montgomery, 23 Fed. Rep. 25 Wis. 607; Crauford v. Wilson, 4 Barb. 501: 707; Juneau Bunk v. McSpedan, 5 Biss. 64; Re Thompson, 1 Wend. 43, Re Wrigley, 8| Unilcd Suites v. Bridgman, 9 Biss. 221; Blair Wend. 134: Grarillon v. Richard, 13 La. 203; v. Turtle, 1 McCrary, 372; Wanzer v. Bright, Lymun v. Fiske, 17 Pick, 231.
52 III, 35; lill v. Goodrich, 32 Conn. 589. Before the defendant can claim the relief granted hini in the order appealed from, he Cole, Ch. J., delivered the opinion of the must show that be is privileged generally from court: the service of process, or that fraud, deceit or Did the circuit court properly set aside the abuse of the process of the court has been bad sei vice of the summons and complaint in this by the plaintiff, or some person acting for ber action, and vacate the order of arrest thereiu? and in ber behalf, in procuring the service of the defendant was brought into this State the summons, complaint and order of ariest upon a requisition upon the governor of Illiserved upon the defendant in this action. nois, baving been chargol with the crime of
1 Greeol. Ev. $ 74; 1 Wharton, Ev. $ 354; Cosserlucing the plaintiff under a promise of mar. tigan v. Mohawk & H. R. Co. 2 Denio, 609: riage, and alleging that he was a fugitive from Walirorth v. Pool, 9 Ark. 394; King v. Sciren, jusıice. Upon av examination before a magis. 44 Pa 99; Jones v. Jones, 2 Swan, 605; Ben. irate, he was bound o er for trial. At the ninghoff
' v. Osırell, 37 How. Pr. 235; T: 0182nd April Term of ibe Circuit Court of Sheboygan V. Smith, 47 W is. 6.3; Chubbuck v. Cl. veland, County, 1889, an information ipas tiled in that 37 Minn. 466; Dunlap v. Cody, 31 Iowa, 260 court charging he defendant with baving com.
Where a defendaut in a criminal action is milted the crime of seduction. Allhe October brought from one jurisdiction or State 10 Term of that cour the defendant was duly ar. another as a fugitive from justice upon crimi raigned, and a plea in abatement was interdal process duly issued, and after being | posed, setting up the Stalute of Limitations a
& defense to the action. This plea was sus- | Biss. 64; United States v. Bridgman, 9 Biss. 221; tained by the court, and the defendant was Blair v. Turtle, 1 McCrary, 372, 5 Fed. Rep. 394; discharged from custody. Within ten minutes Atchison v. Morris, 11 Fed. Rep. 582. after his discharge, and before be bad departed Many of the state courts bold the same rule. from the court-room, the deputy sheriff made Compton v. Wilder, 40 Obio St. 130; People v. service of summons and complaint, and order of Judge, 40 Mich. 730; Cannon's Case, 47 Mich. arrest, upon him, at the suit of the plaintiff, for. 482; Baldwin v. Judge, 48 Mich. 525; Jacogona a breach of promise. It appears that the defend- v. Hosmer, 76 Mich. 234; Sherman v. Gundant, at the time of the alleged seduction, was a lach, 37 Minn. 118; Chubbuck v. Cleveland, 37 resident of Sbeboygan County. He left the State Mion. 466; Palmer v. Rovan, 21 Neb. 452; in January, 1888, and remained outside the Wanzer v. Bright, 52 Ill. 35; Williams ads. State, except that be returned in the night. Reed, 29 N. J. L. 385; Hill v. Goodrich, 32 time in the same month, and transacted some Conp, 588. business, and immediately left. He was brought The last three cases go upon the same ground back on a requisition as a defendant in a criminal as Townsend v. Smith, supra. action, and as a fugitive from justice. It is said The reason for the rule that a person is by the counsel for appellant ibat the affidavit exempt from arrest under the circumstances of the defendant upon which the order of tbe disclosed in this case is that sound public court setting aside the service and order of ar-policy requires that a person shall be privileged rest is based, is insuflicient, because it fails to from arrest while going to or from court in show any fraud or abuse of the process of the all judicial proceedings. The privilege should court by the appellant, or by any person acting exist to subserve great public interests, and for ber, in the procurement of ihe return of the due administration of justice. Moreover, the defendant on the crimival prosecution; nor as was said by Campbell, J., in Cannon's Case: does it show that the defendant was, at the time “ It is very well known that the perversion of he so returned on the requisition, a bona fide extradition proceedings has on more than one citizen of Illinois. But it appears from the af- occasion led to difficulties between nations, fidavit of the plaintiff which was used to obtain and to refusals by state executives to deliver the order of arrest that the defendant was not up persons charged with crime whose arrest was a resident of this State, but resided in the City supposed to be desired for sinister purposes.” of Chicago, and that he was about to return to The temptation is certainly strong to make such that State; and, wbile the promise of marriage requisitions subservient to private interests; was made, and the alleged seduction was ac. and they are often resorted to to enforce a col. complished, in 1887, it does not appear that lection of private debts, or to remove a citizen the plaintiff bad anything to do in procuring from bis bome into a foreign jurisdiction, in the defendant's return on the requisition of order to get service on him in a civil action, the governor, por does it appear tbat there was for the most cogent reasons, therefore, we think any fraud used on the part of anyone to get the courts of justice are bound to see that no imdefendant within the State. In ibat respect proper use be made of such proceedings, which the case is distinguishable from Tounsand v. would look like a violation of good faith, and a Smith, 47 Wis. 623, and cases where jurisdic. perversion of measures which had to be resorted tion is obtained by fraudulent means,
io in order to bring the party accused within It is assumed, in this case, as a fact, that the their jurisdiction. We do not deem it neces. defendant had committed the crime of seduc- sary to comment in detail upon all the cases tion, as alleged, and had withdrawn himself cited. We will observe, however, that in cases of from the State to avoid a prosecution therefor, extradition by a foreign government, under a so as to be a fugitive from justice in a legal treaty, the Supreme Court of the United States sense. Still, having been forcibly brought to bolds that a person who has been brought the State on a requisition, and the court baving witbin the jurisdiction of a court by virtue of exhausted its jurisdiction over bim in respect proceedings under an extradition treaty could to the crime with wbich be was charged, could only be tried for one of the offenses described he properly be arrested in a civil action until a in said treaty, and for the offense with which reasonable time and opportunity bad been given he is charged in the proceedings for his extrahim, after bis discharge, to return to the State dition, until a reasonable time and opportunity from which he had been forcibly taken? This had been given him, after his release or trial is the question involved in the appeal; and we upon such charge, to return to the country think sound principle requires tbat, wbere a from wbose asylum be had been forcibly person has been brought within the jurisdic-taken under those proceedings. United States tion of a court upon a requisition as a fugitive v. Rauscher, 119 U. S. 407 (30 L. ed. 425). from justice, and has been tried for, or dis. A distinction is made in some of tbe authori. charged as to, the offense charged against him, ties beiween civil and criminal ca-es. In that be ought uot to be subject to arrest on a criminal cases, some courts hold that even & civil process until a reasonable time and oppor-forcible seizure in another country, and the tunity bad been given him to return to the transfer by violence or fraud to this country, is State from which he was taken.
po sufficient reason why the party should not In the courts of the United States, the weight answer wben brought within the jurisdiction of judicial opinion is in favor of the proposition of a court which has the right to try bim for that, where a party in good faith is brought such an offense. See Ker v. Illinois, 119 U.S. within the jurisdiciion of a State, or detained 436 (20 L. ed. 421); Mahon 1. Justice, 127 U.S. therein, being a nonresident, either as a party 700 132 L. ed. 283]. to a suit, or as a witness in another suit, he is The offense baving been committed in the pot subject to service. Small v. Jontgomery, 23 State to which the party is brought, be may be Fed. Rep. 707; Juneau Bank v. McSpedan, 5 there tried for it; and neither comily to a sistes