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Vol. II.)

First National Bank OF SELMA v. COLBY.

[No. 6.

ceiver to appear in the state court and move the discharge of the attachment and the abatement of the suit, or to contest the case at the trial. Whatever informality may have existed in the proceeding, it was waived by the silence of the parties. Objections in matters of form to modes of procedure in the court below cannot be argued here for the first time.

But independently of this consideration we are of opinion that it was a proper proceeding on the part of the receiver to apply to the court below to discharge the attachment, on proof of the facts presented by him, and the production of his appointment and the decree dissolving the association. Invested with the rights of the bank to the possession of the property by his appointment, it was his duty to take the necessary steps to remove the levy. That levy was void as against his claim to the property; and, in our judgment, it was error for the court to refuse to discharge it on his application.

But, in addition to this, the suit had abated by the decree of the district court of the United States forfeiting the rights, privileges, and franchises of the corporation, and adjudging its dissolution. The act of Congress provides for such forfeiture whenever the directors themselves violate, or knowingly permit any officers, servants, or agents of the association to violate, any of the provisions of the act.

The information filed against the bank by the comptroller of the currency disclosed several gross violations of the act by the directors ; and the justice and validity of the decree were not questioned in the state court. With the forfeiture of its rights, privileges, and franchises the corporation was necessarily dissolved, as the decrees adjudged. Its existence as a legal entity was thereupon ended ; it was then a defunct institution, and judg. ment could no more be rendered against it in a suit previously commenced than judgment could be rendered against a dead man dying pendente lite. This is the rule with respect to all corporations whose chartered existence has come to an end, either by lapse of time or decree of forfeiture, unless, by statute, pending suits be allowed to proceed to judgment notwithstanding such dissolution. The prolongation of the corporate life for this specific purpose as much requires special legislative enactment as does the original creation of the corporation. No such enactment is found in the act of Congress authorizing the creation of national banks and prescribing the powers, nor is there any provision elsewhere, that we are aware of, which would prevent the dissolution of a corporation from working the abatement of a suit pending against it at the time.

“ I cannot distinguish,” says Story, in Greeley v. Smith, 3 Story, 658, “ between the case of a corporation and the case of a private person dying pendente lite. In the latter case the suit is abated at law, unless it is capable of being revived by the enactment of some statute, as is the case as to suits pending in the courts of the United States, when, if the right of action survives, the personal representative of the deceased party may appear and prosecute or defend the suit. No such provision exists as to corporations, nor, indeed, could exist without reviving the corporation pro hac vice, and, therefore, any suit pending against it at its death abates by mere operation of law.” See also Farmers' f Mechanics' Bank v. Settle, 8 Watts & Serg. 207, and Mansma v. The Potomac Co. 8 Peters, 281.

Some criticism is made upon the fact that the decree of dissolution was


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(No. 6.


entered on the first of June, when the summons cited the directors before the court on a different day. It is a sufficient answer to this criticism that no objection of the kind was made to the entry of the decree in the court below, nor was its validity questioned. The presumption is, in the absence of such objection, that an answer existed which would have been made had the objection been taken. The decree was admitted in evidence, and the decision of the court was placed on the ground that the provisions of the act of Congress did not interfere with proceedings by attachment in the state court, nor affect the liability of an insolvent corporation to be thus sued, and “ that matter of abatement could not be given in evidence on an issue upon the merits, a default, or a failure to plead,” the court apparently considering the abatement of the attachment, and not the abatement of the suit, as the object sought by the production of the decree.

The judgment of the state court must be reversed, and the cause remanded, with directions to discharge the attachment levied on the property of the bank.

Ordered accordingly.


[APRIL, 1875.]




The Act 168 of Michigan of 1873, providing for the confinement in the insane hospital

at the state prison of such persons as are acquitted of murder on the ground of insanity, does not furnish adequate means for its enforcement, and is unconstitutional as contemplating inquisitorial and ex parte proceedings which might result in restraining

personal liberty without due process of law. A jury in a criminal case may pass specially, if it choose, upon the sanity of the accused,

but cannot be compelled to do more than render a general verdict on the merits, that is, “ guilty "not guilty.”


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CAMPBELL, J. Underwood brings error upon a judgment of the recorder's court of Detroit, whereby he was committed to the state prison insane hospital as a person charged with murder and acquitted on the ground of insanity. He claims that the statute is invalid.

The statute in question, being Act number 168 of the laws of 1873, entitled an “ Act to provide for the custody and safe-keeping of persons who are tried for murder and other high crimes, and are acquitted by reason of insanity,” provides in substance that when the defence of insanity is set up in the cases provided for, the jury shall find specially whether the respondent was insane when the alleged crime was committed, and if acquitted on that ground the verdict shall so declare. In such case the court is to sentence him to confinement in the insane hospital of the state prison, until discharged in the manner pointed out. This

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(No. 6

can only be done when the prison inspectors summon (as they are empowered to do) the circuit judge of the circuit from which he is sent, and the medical superintendent of the Kalamazoo Insane Asylum, who are thereupon to examine into his condition, and if they certify that he is not insane the governor is to discharge him.

The finding of the jury is confined to the prisoner’s condition at the time of the cominission of the alleged criminal act. The indictment or information embraces and can lawfully embrace no issue except the prisoner's guilt as charged. The right of trial by jury is secured by constitutional provisions, and it would not be competent to make any substantial changes in its character. As suggested in People v. Marion, 29 Mich. 31, one of its substantial elements is the right of the jury to give a general verdict on the merits. Any collateral inquiry would be foreign to the issue, and as no insane person is subject to be put on trial, a finding that they had been trying such a person would be somewhat inconsistent with the notion that the trial could have been proper. The statute has avoided this error by confining their attention to the time of the offence; and while it is not competent to prevent an acquittal on a reasonable doubt of insanity, which would require a general verdict of not guilty, yet if the jury agree that the prisoner was insane, and that he would have been guilty if not so, they are undoubtedly at liberty, though they cannot be compelled, to find that fact specially. We cannot hold a special verdict or finding unauthorized, as the common law furnishes abundant precedents to the contrary. 1 Hale P. C. 38.

The questions to be considered must be determined on the assumption that the verdict itself is unauthorized. As insanity, when discovered, was held at common law to bar


further steps against a prisoner, at whatever stage of the proceedings, it was always competent to institute an inquiry into his condition. This investigation was sometimes had by the court alone, and sometimes by aid of a jury of inquest, which is regarded as the safest and most regular practice. See 1 Hale P. C. 29 to 37 passim. In England the detention is during her majesty's pleasure, whether on an acquittal by reason of insanity, or upon an inquest. See Oxford's case, 9 C. & P. 305 ; Regina v. Goode, 7 A. & E. 536 ; Reg. v. Hodges, 8 C. & P. 195; Rex v. Pritchard, 7 C. & P. 303 ; Rex v. Dyson, 7 C. & P. 305. In Oxford's case, the jury evi

. dently had doubts whether he had actually done the act charged, and subsequent events showed that it was not likely he was dangerous, if insane at all, yet he was never discharged. Our Compiled Laws, long before this statute, authorized the judge to conduct such an inquiry, when the jury render such a verdict (Comp. L. sec. 7957), and this is a better course.

There can be no reason to doubt the propriety of making provision to secure to such unfortunate persons protection and care, in such a way as to prevent them from injuring or being injured, if they are dangerous or in need of seclusion. The state has an ultimate guardianship over non compotes, in cases where it is necessary.

But inasmuch as such authority can only exist over those who are thus disqualified, the power of determining their condition is one of great importance, and one which especially involves judicial oversight. In this country, where all legislation must be within constitutional limits, and

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(No. 7.

does not reach the full parliamentary range, private liberty can never be subjected to the mere discretion of any person. No one can be deprived of liberty without due process of law. Any involuntary control or seclusion is imprisonment, and that is only justifiable when enforced under valid laws. Every person has a right at all times to resort to the courts to have the legality of restraint determined, unless he is imprisoned under a valid judgment, under proceedings where he had a regular trial or hearing

The present statute required the respondent to be confined until he is discharged in the manner pointed out by the act. This requires, First, the action of the prison inspectors, for whose action the statute has made no provision unless they choose. Second, the summoning of a circuit judge from any part of the state to the state prison, and the summoning of the asylum superintendent from Kalamazoo to the same place. Third, a joint examination and agreement, either being competent to balance the other, and their disagreement turning the scale in favor of imprisonment.

Ii was held in People ex rel. Atty General v. Lawton, Judge of Probate, October term, 1874, that a law was not enforcible, unless it furnished adequate means to secure the purposes for which it was enacted. See also People v. Smith, 9 Mich. 193. It would be attributing more than folly to the legislature to assume that they would intentionally pass a law which would leave a sane man liable to perpetual imprisonment where he has been acquitted of crime. There is nothing in this law or elsewhere, which could compel the performance of the functions necessary to release a sane person committed to the insane asylum. The inspectors of the prison act or not as they see fit. Neither the prisoner nor his friends can compel action. No circuit judge can be compelled to perform functions not judical in that capacity; and if he could, the law points out no means of bringing him and the medical superintendent away from their own counties at the command of a board of inspectors. The law furnishes no means of summoning and swearing witnesses, or securing the means of a fair examination, or of determining any rules of action.

But the more serious difficulty is in the nature of the proceedings themselves. In the first place the prisoner is sent into confinement without any legal investigation into his condition at that time, when he may be perfectly sane, and when, having been acquitted, he is entitled to all the privileges of any innocent man. There may be a very long interval between

a the offence and the trial.

Having been so secluded, he is excluded from the right, and all others are excluded from the power, of resorting to any effectual means, or any means whatever, of securing a judicial inquiry into his sanity. Neither judge nor expert has any power under our Constitution to select his own means and process of inquiry, and pass ex parte upon the liberty of citi

The proceedings contemplated by this statute are not only inquisitorial and ex parte, but the officers selected, who are undoubtedly as fit as any one to conduct such inquiries, have no power to act until the inspectors choose to call them. It practically leaves the liberty of the person confined to depend upon the uncontrolled pleasure of the inspectors. A more dangerous scheme, and one more entirely opposed to the constitutional VOL. II.



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(No. 7.

provision securing to every one the protection of due process of law, could hardly be devised.

It is a result of the dangers which have been multiplied by the absurd lengths to which the defence of insanity has been allowed to go, under the fanciful theories of incompetent and dogmatic witnesses, who have brought discredit on science and made the name of experts unsavory in the community. No doubt many criminals have escaped justice by the weight foolishly given by credulous jurors to evidence which their common sense should have disregarded. But the remedy is to be sought by correcting false notions, and not by destroying the safeguards of private liberty.

The judgment must be reversed, and the prisoner discharged.


(7 Leg. Gaz. 169. To appear in 21 Wall.)




1. Whilst the general maritime law is the basis of the maritime law of the United States,

as well as of other countries, it is only so far operative in this, or any country, as it is

adopted by the laws and usages thereof. It has no inherent force of its own. 2. In particular matters, especially such as approach a merely municipal character, the

received maritime law may differ in different countries without affecting the general in

tegrity of the system as a harmonious whole. 3. The general system of maritime law, which was familiar to the lawyers and statesmen

of this country when the Constitution was adopted, was intended and referred to when it was declared in that instrument that the judicial power of the United States shall extend “to all cases of aılmiralty and maritime jurisdiction.” Thus adopted, it be

came the maritime law of the United States, operating uniformly in the whole country. 4. The question as to the true limits of maritime law and admiralty jurisdiction is ex

clusively a judicial question, and no state law or act of Congress can make it broader or narrower than the judicial power may determine those limits to be. But what the law is within those limits, assuming the general maritime law to be the basis of the system, depends on what has been received as law in the maritime usages of this coun

try, and on such legislation as may have been competent to affect it. 5. The decisions of this court illustrative of these sources, and giving construction to the

laws and Constitution, are especially to be considered; and when these fail us, we must

resort to the principles by which they have been governed. 6. It is settled by repeated adjudications of this court, that material-men furnishing re

pairs and supplies to a vessel in her home port do not acquire thereby any lien upon

the vessel by the general maritime law as received in the United States. 7. Whilst it cannot be supposed that the framers of the Constitution contemplated that

the maritime law should remain unchanged, the courts cannot change it; they can only declare it. If within its proper scope any change is desired in its rules, other than

those of procedure, it must be made by the legislative department. 8. Semble, That Congress, under the power to regulate commerce, has authority to es

tablish a lien on vessels of the United States in favor of material-men, uniform through

out the whole country. 9. In particular cases, in which Congress has not exercised the power of regulating com

merce, with which it is invested by the Constitution, and where the subject does not in

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