FEDE1U.D'.\REPORTER·
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II;
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UlfITilD; tSTA.T!ElS '. . . . I
BRAWNER.
(.lI£strict Court, W. D. Tennessee. May 4,1881.)
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1.
Olmmu,LLAw-REv. ST. §: 1014,:.-REMOVAL OF PRISQlJER TO ANOTHER "J)ltn'lUCT":"'PPWERS OF DIS'l:RICT CORPUs. ".
) "'1',lIe, judge of the district wnom application is made for a warrant of removal to another district for 'may, under section 1014 'of,theRevised Statutes, Tev;iew, withOut a writ (if habeas corpus; the,,! oqhe magilltr/lte, and reduce the bail required by: ·"him,If it shall appear to be exC ssl.ve. · I ( . : "." .
2: 'AiOIiNDMlbNT, CoNSTITUTION oJ'
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LAW -
EIGHTK
TlDl: UNITED STATES. , It itrllubstantiallyJadenialofball, arid'lI' vioJatiGD oftheconstitti. ,exceslliyebail,to require a larger sum flhan" " "IroJII." priS9ner can be" reasonably expected to "''give:'' i'requirement oft5,ooo'hi. this case was excessive, and the: : La\imwlls reduced iii f2t500." ", .
3. "SAJoii JBu:ll.l'Eb\r 2 'PaoCBlJUREIN ApPEARANCE ' iN' , "'DJIilTRlciT:.wro lWRAiT TERM !-TENN'ESIEE CODE,: U 5152, 5158, 5164!. "The an alleged arrested be. to. of law in the where' 'the a'rlestiti made; and where the Tennellsee Code requires in oourt':ghall to the next tetDi of · that ball' 1hav\D!g/oorn,i:7.IlPC/:l,!;thll diitrict juqge' allowed the prisonerl to:' the. <ijstricteourt:fQr,.theeastern district Qf Missouri,apddeclined tocpmpel an immediate appearanCe to the eurrimt term. But qUUne 'Whether, underspcclal "clrcumstances., this,might not be notwithstanding the require" , :the be. in accordance with ,the, state: statute.,
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for trial upon a charge '<l counterfeiting. The ,record presented to the district consists of the affiflwvit'l1pon "whil:lh 'the-'arrest was 'made, .the warrant of the commissioner for the arrest, and his commitment to the custody of the marshal to await the action of the district judge in the premises. It appears by this record that the commissioner fixed the bail at $5,000, and in default of it the prisoner was committed as stated. The arrest was made on the finit, and the commitment on the second, of the present month, in Weakley county, the prisoner waiving any exn,minntioll before the commissioner, whereupon he walt
:' &ppHc81tion
Mr Ii 'warrant 6f remotal 'ofthe defend'/mt to'
UNI'rED
STATES. :V.
BRA,WNER.
brought to Memphis, before the dis,tIfict' judge, stated that he could give bond fora ,s)llaUersum than but could not for that amount. On' Iit,ated·,-tba$ he himself had no property except two smlj,lltowJ;l about $75, but that his fatherj·upon whom he fO.lr4p.il, owned about 240 acres of land and necessary fllrmil}.g stock, the land being assessed for taxes atabout:$$,pr $10 peI;,q,c.re. ,John B.Olough, ,Ass't Dist. Att'y, for the ,United States. . , 7'. B. Turley, for defendant·.' ,HAMMOND,' D.J. It isappllren,t the bail required :by the comniissioner:is excessive, and)jtheeighth, 'of the constitntion' i8 a g:u.llranty· against eXGesflhre, ,bail. .It. :is -objected that the action of viewed by the district judge on thift application,,:norJl:Il'I.ib/li"l Ieduced by him, except upon habqas, cm-pus, ",hen"lit is COa!l::r ceded, the ease could, be reviewed . and the, Hurd. Bah. Corp. Kelly, 17 Ma.SBi ;t;1!fl. Kaine. 3 Blatchf.,-ti,; Re Re Id.414; Re H -)3latQ4fr Re, Van Oampen, 2 Ben. 421 ;. U. S. v. Bl({omg(.Vrt, J nev. Ree. 148. " J " I'; .'-{" ;,. : Tn:! :: Whether; o.n 1labe.as ox: POWel" to :t;evtew: Qr:supervise ·jtc.tio:p. of the jstrate I do not find it, necesslj,U; tQ determine. I{;11e Clpl gil -puly to the extent of reducing the bail be sufficient here, and thejupgl'l could Pl\ a writ of habeas corpus, if -necessary to. .tQreduce excessive bail. But I have.aoDW .that, without any writ of h4beasqorpus, the ,of the dis,pr;ict,acting the authority of !:laction ,tljlie·Re;vitled Statutes, ,hl1s to reduce. the, paH" if .11.e thinks it excessive, alld tQreview the actioJioftJ;1e sioner, or other; cOJ;Xlmitting,lllagistrate.. Qn',a) ,that section., ,J h· i The very purposeo!. the;. the judicial,sanctiop, of, Rsupel\visory j9.dge ;Win :tAIi'- aetio.p ,ofthe .cQwmittin1S ]Jlagistntte, jnsQ Qf . Rcitizen' ironl pr !iist\"ict to, ll>nQ.thel! j', ",'
88 trial upon a criminal charge. If the warrant of removal is f'J he issued as a mere ministerial act, there is no reason:'whj'the<lOmmitiug magistrate should not heen required to issue it'at once, upon neglect or refusal to give bail. The necessary implication, from the method of procedtii'e'adopted by the statutes, is that the of the district," whether it be the district judge or some other, as is intimated in'Re Bailey;l' Woolw. 422, it may. bel must judicially determine whether the prisoner shall be taken to another district for trial, andtha,t he may refuse his warrant where'itappears that'itheremoval should' not, be made, or where hewotlld'admit the paltyto bail. Doubtless the action oUhe: committing magistrate iSJpri-majtUfie Bufficiimtas a basis for the warrant, but it is nottconclusive; and 'while the judge should not unneoessarily 'require allother or fUl'ther preliminary examination, if 'it: appear to him necessary that the bail snould be reduced, or· that for any reason tHe prisoMr should again be heard iIidefe'rice, I have !nodoubt that it is Lis duty topasslul'J.y upon theoase, and d.etermine for him· self whether he should be further held or removed. These views are abundantly supported by the authorities. Conk. Tr. (4th··Ed.) 1582; Murray, U. S. Courts, 29; Re Buell, 3 Dill. 116, at p. 120; U. S. v. Jacobi, 14 Int. Rev. Rec. 45; U. S. v.Pope, 24 Int. Rev; Ree: 29; U. S. v. Volz, 14 BIatchf. 15; U. S. v. Haskins, 3 Sawy. 262; Re Alexander, 1 Low. 530; U. S. v. Shepard, l' Abb. 431; Re Doig, 4 FED. REP. 193; and cases cited in these opinions. In some of the cases . there was a writ of h(tbeas corpus, and in some the original examination was before 'the district judge, and in one the question arose in the district to which the removal was made, on a motion to quash the indictment; but in none of them does it seem 'to have been treated as 'a matter of much impOrtance 'by what form of procedure the action of the judge is invoked, and in none is it denied that he may determine for him:selfwhetfuier the removal is proper. In Buell's Case, ''''pTa, there was both a habeas corpus and an application for a warrant bf removal, which latter was refused. In the case of U. S. v. Somerville, related in Volz's Case, supra, it seems
BTA1:ES, V.JlI\4WNER.
89
that ',the district judge himself took thebl.\.il·bon<1 after a cOlnmitment, by the p,nd there had ,a Ilfter commitment to talie bail,oit being held tbatJ,.ejdid, ': one seems tirhave suggested that the judge ha9<:llQt th(;l power to do what he did. 'Without further examinatiQo:here of the,cailes, it ilHlUffi. cient to aaythat, while I do not find the judge roa.y, on ,the application for iriquire into. the facts; ,or rWuQtdhe,'bail, IAAVe, po"dQub,t it ls;aprQperpractice., In some caseS it:may:(pe issue a habeas·corpus and certiorari, in <mler,to .br,inghefo;re hinD! the entire record oj the evidence before the mag!strate; 'or, llnJl,Y be that. the illdge jlQ,u1d l;lQt discharge the:prlsonel''\titbollt CqrpW$,. while refuse his warrant ofremov;al, lea.ving him where :thecoIn,nl;it. ment had .placed him" until appliclttiq,n for, habea{!,fiOrJ'ru, should be made" But my judgment,j,s prisoner before him, with the plenary by;the statute to grl,tnt or refuse the '!arl'lIlI;lLpi only object and purpose of the. h4J whether there'shall be charge exists ,wit.hout any habeas implied from the statute: .In the case of U. 8. v,: Lfllwrence, 4 518; it is said that "to require ,larger1?!lil prisoner could 'give would be to require excessive ban, and to deny bail in; a case clearly bailaltle by law·. The discretion of the.magistl'ate, in taking bail, is to J;leg'uided:pythe.compound consideration of the ability of the prisoner to give bail 'and the atrocity of the offence. It is a rule of our courts in this district to require $2,000 in. cases like this, though it is very frequently increased under special circumstances. As this is a case for trial in another district, that circumstance shoul<l perhaps increase the amount somewhat, but I think $2,500, under the circumstances here, as much as should be required of this prisoner, and any larger Itmount, would be excessive. I shall, therefore, discharge him on giving bail before me in that sum.
90
F&tiBRALREPORTRR.
f' attorney at. S't.l1Quis say the court iElnow with'& jury.in attenqance to be distlhlitflgediin;a days,' s,ntls:thequest.ion is whether. -thepris\i ito -appeat ut 'this 'present term, and onerf;Jhalf lntmediatelyjJ,* ,at the 'neJilt :term of the The cases wehave been considering indicate that the proceeding on the exatniniation is in accordanee with the usages of law in' tlie Jtfti'8iTictwhere the arrest is' made) and this seems tobe:a,plain requirement"ofthe statute.. Rev. St.§lOH, et i f'Dhe 'fetinessledode' dirootlil[that"bail, when not- taken iIi Gpoo.'courli,' 'shiU(bff 1 given, by 'a written nndertaking, signed defendaht and at loosttwo sl1fticientsureties; requir-i ing thijJdefendant',toappear' "at the next teTm of the cdlWt/' -WhHel,;When 'ghren in'o',Pen it is to appear j'atthe'pres+ S. Code, §§r< 1$152,5153, 5154.',.It is genthat the· federal courts, in this matter-of bailV'are governed by,the state statutes. U. S. v. Evuns,12 Chi:' is.C.2FEl). REP. 147, 150, and oases tberi('<!itk'dfJ I,lteadilysl:le how this requirement might greatly tlelay'trials,' M'l'd-'th'at; it· 'may be sometimes impracticable to a"dh'eile stHtltly Statntesdf the states. And"liketh6 acts 'ofc<)ngressadoptingrthe practice of the states in ,suits "tttlaw,it'inay'go no further than to adopt the state statutes "as as may' be!' Rev. St. § 914. Whether mitting Itlltgistrate,theref,ore, may disregard this requirement of the stA.testatute in· a proper case, and take the bond demandingah appearance at some other time than the next not now decide, because I see in this case no term, Ii spedal reasonfot departing' from the ordinary practice. have determined toallo-w'£his defendant to give bond to the next teiin of ,the court at St. Louis, as the commissioner did. 1 shaill not interfere with his action further than to reduce the amount of bail, as hefore indicated. The prisoner will be allowed a 'few days to communicate with his friends, who live some distance, and in the meantime will remain in the custody/off the Imanhal, with leave to the district attorney to 'mak9 afnrther application for a removal warnmt, if bail be not furnished. So ordered.
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MILLER L'. LIGGETT &: MEYJ)RS TOBACCO CO·
.91
MILLER
and others v.
THE LIGGET-t
& MnM ., .\
· , '1,,;
(Circuit Court, E. D. Mis8Quri.
January.3I,ISS1.)
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2.
SAME-':SAME,
A party who contributes money.for the purpose of 'employing sel,apd carrying on a litigation, under a contract with a pal1r:"to, record, has the right to take such action in the case as willpFotoo1 t his interests' in such litigation.' ' " :, '",. 3. SAME-SAME-PRACTICE.
The validity of a patenthavi'ng been in patt sustained in one oircuit, suit was brought in another circuit, for infriJlgement by' a, PArty who had contributed to the payment of the cOUllSel who had defended the first suit, Held, that tbe defendant 'ras 'estopped by the cation in t11e other circuif,butthat the court would not enter any decree based upon that opinion, until the conclusion·of.the litigation in such other circuit.
4. PRAcTICE PmOR USE. : ,\ Evidence of prior use having been introduced iJ;l suit, held, that the proper way to proceed would be by motion for a rehearing in the oUier citcuit.-fED. ·. ' I
In Equity. A suit having been brought agamst ForM &. Co., tobacco manufacturer, at Louisville, for infringing the Miller ,& Worley patent, re-issue No. 8060, for "finishing said patent having two claims-one for the process and one for the product-these defendants,with somedozim other tobacco manufacturers, issued a oircular to their customers proJ:Qising to protect them ag/tinst any suit Miller & Worley might bring against them for dealing in the tobacco. It further appeared that the above defendants contributed to the payment of counsel wh6 defended the Foree case, l,ut in all other respects were entirely independent of, and had no connection whatever with, Foree & Co. The evidence showed also that their was in many essentials different from that prac.ticed ,by ,Foree & Co. The product claim was held void. Much new evidence, as antici-