taining the validity of said deed from Phebe Benton to said Daniel S. and Lewis Benton, of the said land in Delaware County. The decision of said common pleas court was rendered May 13, 1881, and on appeal from said common pleas court the district court rendered the following decision March 10, 1883. viz.: "On consideration whereof the court do find that the equity of the case is with the plaintiff and cross-petitioners, and that the deeds of conveyance mentioned in the pleadings from Phebe Benton to Orson Benton, Lewis Benton and Daniel S. Benton, dated August 9, 1878, should be set aside and held for naught; and therefore it is ordered, adjudged and decreed by the court that said deeds of conveyance be and they are hereby set aside and held for naught, and said estate of Hiram and Phebe Benton is hereby ordered to be partitioned and settled the same as if said deed had never been made." And finding and decreeing among other things that the interest of Daniel S. Benton, as one of the heirs of said Phebe Benton in the land in Delaware County, was one forty-eighth part, which amounted to $84.73, net proceeds, and ordered the partition be made of said premises. Which judgment was affirmed by the supreme court and certified to the Court of Union County, and the commissioners of partition in said case, appointed by said court, having reported the premises not susceptible of division, the court thereupon ordered said premises to be sold by the sheriff, which was accordingly done, and Lewis Benton became the purchaser at said sale of said tract of land in Delaware County, consisting of 122 acres, and received his deed for the same, and afterward conveyed the same to Aaron Clover, defendant, and the proceeds of the sale, by the sheriff aforesaid were distributed according to the order of the Union County Court to said heirs of Phebe Benton, deccased, and as one of said heirs, to Daniel S. Benton, one forty-eighth part. The above record of facts is admitted so far as the record thereof may be competent evidence in the trial of this case. And it is further admitted as a fact in this case that Phebe Benton is the person who made the deed of conveyance of the undivided one half of said land in Delaware County, Ohio, of which she had the title in fee simple, and that she died August 26, 1879. And it is admitted as a fact that the deed made by said Phebe Benton to Daniel S. Benton and Lewis Benton is a general warranty deed, purporting to convey the undivided one half of said land in Delaware County to said Daniel S. and Lewis Benton, their heirs and assigns in fee simple, and that the date of said deed is August 9, 1878, and the same was filed in the recorder's office of Delaware County, and recorded in volume 72, pages 33 and 34, August 27, 1878, Record of Deeds of Delaware County, and under which deed Lewis and Daniel S. Benton went into possession, and under which title Mary J. Shafer claims her rights in this action as well as to whatever title the said Daniel S. Benton had as one of the heirs of Phebe Benton, deceased. It is further admitted as a fact that the record of the pendency of said suit in Union County, or the proceedings or decree rendered therein, are not recorded in Delaware County, Ohio. Mary J. Shafer's mortgage, it is agreed, is dated October 28, 1882, filed for record November 11, 1882. It is also agreed that it is a fact that the plaintiff, Mary J. Shafer, was, at the date of the commencement of the action in Union County, and ever since has been, a resident of Delaware County, and never a resident of Union County. And that she had no actual notice in fact, other than the notice which is presumed in law, of the pendency of said suit in Union County, or of the proceedings therein, when Daniel S. Benton executed and delivered to her the note and mortgage in suit. Upon the aforegoing agreed statement of facts, the finding and judgment of the circuit court were as follows: "The court find on the issue joined between the plaintiff and the defendants that the equity of the case is with the plaintiff. And the court find that the defendant, Daniel S. Benton, has been duly served with notice by publication, according to law, of the pending of this action, and is in default for answer and demurrer, and that the allegations of the petition as to him are thereby confessed by him to be true. And the court do further find all the other issues between the plaintiff and said defendants, Lewis Benton and Aaron and Nancy Clover, in favor of the plaintiff and against the said defendants. And that there is due the plaintiff from the defendant, Daniel S. Benton, on the promissory note set forth in the petition, with the interest thereon to the first day of this term, to wit, December 14, 1886, the sum of $761.44, with interest at 8 per cent from that date. "The court further find that in order to secure the payment of said note and interest, the said Daniel S. Benton executed and delivered to said Mary J. Shafer, plaintiff, his certain mortgage as in the petition described, and on the premises therein described. That said mortgage was duly recorded in volume 28, page 149, etc., November 23, 1882, in the Records of Mortgages of Delaware County, Ohio, and is a valid lien on the premises in the petition described, and that the conditions in said mortgage have been broken and said deed has become absolute. "It is therefore adjudged and decreed by the court that unless the defendant, Daniel S. Benton, shall within five days from the entry of this decree pay or cause to be paid to the clerk of the court of common pleas, to which this case is remanded for further proceedings, the costs of this case, and to the plaintiff herein the sum of $761.44, so found due as aforesaid, with interest at 8 per cent from the 14th day of December, 1886, the defendant's equity of redemption be foreclosed and said premises be sold, and that an order of sale issue therefor to the sheriff of Delaware County, Ohio, directing him to appraise, advertise and sell said premises as upon execution, and report his proceedings to the Court of Common Pleas of Delaware County, Ohio. "It is further ordered that this cause be remanded to the Common Pleas Court of Delaware County, Ohio, to carry this decree into execution and for all further proceedings." 1890. BENTON V. SHAFER. To all of which findings, rulings and judgment, the defendants did at the time, by their counsel, except, and thereupon the defendants filed a motion for a new trial, for reasons set forth in said motion, which motion was overruled by the court, to which the defendants did at the time except. may be had in any county wherein a part of This proceeding in error is prosecuted to re- error: He who purchases during the pendency of a suit is bound by the decree that may be made against the persons from whom he derives title. Conceding that all the proper parties were before the court at the commencement of the action in Union County, and up to the time from Daniel S. Benton, the question arises, when Mary J. Shafer received her mortgage whether, upon the agreed facts in the present case, she is to be concluded by the judgment rendered in the Union County action. To that Wells, Res Adjudicata, § 32, and authorities cited; Shirley v. Fearne, 33 Miss. 666; Com. v. Dieffenbach, 3 Grant, Cas. 375, citing Bishop of Winchester v. Paine, 11 Ves. Jr. 197; Metrop-action she was not a party: at the date of its olis Nat. Bank v. Sprague, 21 N. J. Eq. 535; Walker, Am. Law, p. 419, and note c. By the doctrine of lis pendens it is well settled that a purchase made of property actually in litigation pendente lite for a valuable consideration, and without any express or implied notice in point of fact, affects the purchaser in the same manner as if he had such notice, and he will be bound by the judgment or decree in the suit. Metropolis Nat. Bank v. Sprague, supra; 1 Story, Eq. par. 405, and authorities cited, note 1 (a); Bishop of Winchester v. Paine, supra; Green v. Rick, 121 Pa. 130; Newman v. Chapman, 2 Rand, 93, 14 Am. Dec. 774-779, note. The judgment in a real action overreaches an alienation after writ. Bennet v. Williams, 5 Ohio, 462; Hamlin v. Berans, 7 Ohio (pt. 1) 161; Toierton v. Williard, 30 Ohio St. 579. Mr. J. Hipple, for defendant in error: Rev. Stat. §§ 5022, 5023. resident of Delaware County; and she had no The decision of the Court of Common Pleas A judgment rendered by a court having no jurisdiction of the subject matter or of parties is void and may be shown in any collateral or other proceeding in which it is drawn in ques-unmodified by statute, would seem in some in tion. Gilliland v. Sellers, 2 Ohio St. 223; Buchanan v. Roy, 2 Ohio St. 251, 269; Rohn v. Dunbar, 13 Ohio St. 572; Evans v. lles, 7 Ohio St. 233; The General Buell v. Long, 18 Ohio St. 521. Dickman, J., delivered the opinion of the court: The object of the suit in Union County was Although when the estate is situated in two The rule concerning the effect of lis pendens, stances stern and inequitable in its operation. But, the rule concerning constructive notice by lis pendens has always been regarded by the courts as a harsh one in its application to bona fide purchasers for value. In Hayden v. Bucklin, 9 Paige, 512, Chancellor Walworth said: "This common-law rule of of the pendency of suits in courts of justice, requiring purchasers at their peril to take notice for the recovery of the property they are about to purchase, although it is nearly impossible that they should actually know that such suits have been commenced, has always been considered a hard rule, and is by no means a favorite with the court of chancery." The stringency of the rule has led the English Parliament and the Legislatures of many States to interfere, resulting in most material statutory modifications and restrictions. An example of such legislation is found in the English statute which provides that a pending suit will not affect a purchaser for value and without express notice, unless a notice of lis pendens has been properly registered in compliance with the statutory directions. Stat. 2 and 3 Vict. chap. 11, §7; Pom. Eq. Jur. §§ 639, 640. Our own statutory provisions are found in S$ 5055 and 5056 of the Revised Statutes. Section 5055 reads as follows: When the summons has been served or publication made, the action is pending so as to charge third persons with notice of its pendency; and while pending, no interest can be acquired by third persons in the subject matter thereof as against the plaintiff's title.' Under this section, if the land mortgaged to Mary J. Shafer had been situated in Union County instead of Delaware County, she would have taken the mortgage with constructive notice of the pending litigation, and would have acquired no interest in the property, as against the title of the plaintiffs in the action. The general rule is that, as to real property located within the jurisdiction of the court where its judgments and decrees may become or be made liens upon the property, all men must take notice of and be bound by the pending litigation without regard to residence. But a mortgagee of real property not part of an entire tract situate in more than one county, will not be charged with constructive notice of an action for the recovery of such property, pending in a county other than that in which the property is situated. Section 5056 of the Revised Statutes, on the subject of lis pendens as to suits in other counties, provides as follows: "Wher any part of real property, the subject matter of an action, is situate in any county or counties other than the one in which the action is brought, a certified copy of the judgment in such action must be recorded in the recorder's office of such other county or counties, before it shall operate therein as notice so as to charge third persons as provided in the preceding section; but it shall operate as such notice, without record, in the county where it is rendered." By this section of the Statutes, where part of the real property in litigation is located in the county where the action is brought, and part in another county, the judgment, in the county where it is rendered, is made to operate as notice of the pending of the action, without record. In the county where the action is brought and judgment rendered, and the real property or a part thereof is situated, it is presumed, under the Statute, that a purchaser of the subject matter of the suit situated in that county has knowledge of the prior proceedings upon which the judgment is founded, without regard to its record. But in a county where the action is not brought, and the judgment is not rendered, and the title to real property therein located is sought to be changed or af fected, a purchaser is not presumed to have such knowledge of the pending action or proceedings leading to the judgment, and hence the Statute requires the judgment to be recorded in such county before it can operate therein as notice to a purchaser, as provided in the preceding $ 5055 of the Revised Statutes. In the case at bar, it is among the agreed facts that the proceedings, or decree rendered, in the suit in Union County, have not been recorded in the County of Delaware. If the purchaser of a tract of land situated entirely in the county of his domicil, who has no actual notice or information of any judicial proceedings in any county in reference to such land, searches the records of the county where the land is located, and finds no pending proceedings, judgment liens or other incumbrances affecting the title to the same, it is not the intent of the Statute that such purchaser shall be compelled to examine the records of the courts of every county in the State, to find whether a suit is pending that would affect the title. And the section of the Statute now under consideration, in the protection of the innocent purchaser for value and without actual notice, accordingly provides that a judgment rendered in a county other than that in which the purchased part of the land lies shall be recorded in the county where such land is situated, before it shall operate therein as notice of the pendency of an action in the county where such judgment was rendered. But the doctrine of lis pendens, which has been invoked in behalf of the plaintiffs in error, rests upon the jurisdiction of the court over the subject matter involved in the suit. "To make the pendency of a suit notice, so as to affect the conscience of a purchaser, it is essential that the court have jurisdiction over the thing." McLean, J., in Carrington v. Brents, 1 McLean, 167. In Jones v. Lusk, 2 Met. (Ky.) 356, it is said by Duvall, J.: Unless the petition shows upon its face a case for the jurisdiction of the chancellor, the proceeding cannot operate as a lis pendens, even from the date of the service of process, so as to affect the property sought to be subjected, or to overreach a subsequent sale or other disposition of it." See also Fonbl. Eq. B. 2, chap. 6, § 3, note n; Sorrell v. Carpenter, 2 P. Wms. 482; Worsley v. Earl of Scarborough, 3 Atk. 392; Bishop of Winchester v. Paine, 11 Ves. Jr. 194; Murray v. Ballou, 1 Johns. Ch.566; Bennett, Lis Pendens, §§ 98 100. It is true that the action in Union County was to have partition of lands lying in that county, and also in Delaware County; and when the estate to be partitioned is situated in two or more counties, the proceedings, as before observed, may be had in any county wherein a part of such estate is situated. But, the purpose of that action, as appears from the agreed statement of facts, was also to set aside the deed of conveyance made by Phebe Benton to Daniel S. Benton and Lewis Benton, of the tract of land in Delaware County mortgaged to Mary J. Shafer, "and to recover the said real estate situated in Delaware County.” By 5023 of the Revised Statutes, "when the property is situated in more than one 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 no part of the land tract." embraced in the mortgage was located, the defendant in error, Mary J. Shafer, cannot be held chargeable with constructive notice of the pendency of the action. Judgment affirmed. The mortgaged real property situated in Delaware County was not part of an entire tract situate in more than one county, but was a separate and independent tract of land located 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., APPEAL by plaintiff from an order of the Circuit Court for Sheboygan County setting aside the service of summons and complaint and vacating the order for arrest of defendant. Affirmed. The case sufficiently appears in the opinion. Mr. D. T. Phalen, with Mr. Simon Gillen, for appellant: If the defendant was a fugitive from justice at the time he entered upon, or took up, his residence in the State of Illinois, then he cannot claim a legal residence, domicil or citizenship in the State of Illinois; for his residence there lacks, in law, the bona fide intent, which is the legal foundation of a residence or domicil for the purpose of acquiring a citizenship. 2 Bouvier, L. Dict.; Anderson, L. Dict. 892; Dutcher v. Dutcher, 39 Wis. 658; Hall v. Hall, 25 Wis. 607; Crawford v. Wilson, 4 Barb. 504; Re Thompson, 1 Wend. 43, Re Wrigley, 8 Wend. 134; Gravillon v. Richard, 13 La. 293; Lyman v. Fiske, 17 Pick. 231. Before the defendant can claim the relief granted him in the order appealed from, he must show that he is privileged generally from the service of process, or that fraud, deceit or abuse of the process of the court has been had by the plaintiff, or some person acting for her and in her behalf, in procuring the service of the summons, complaint and order of arrest served upon the defendant in this action. 1 Greenl. Ev. § 74; 1 Wharton, Ev. § 354; Costigan v. Mohawk & H. R. Co. 2 Denio, 609; Walworth v. Pool, 9 Ark. 394; King v. Steiren, 44 Pa. 99; Jones v. Jones, 2 Swan, 605; Benninghoff v. Oswell, 37 How. Pr. 235; Townsend v. Smith, 47 Wis. 623; Chubbuck v. Cleveland, 37 Minn. 466; Dunlap v. Cody, 31 Iowa, 260. Where a defendant in a criminal action is brought from one jurisdiction or State to another as a fugitive from justice upon criminal process duly issued, and after being ject to arrest on civil process. Williams v. Bacon, 10 Wend. 636; Lucas v. Albee, 1 Denio, 666; Lynch's Case, 1 City Hall Rec. 138; Shotwell's Case, 4 City Hall Rec. 75; Moore v. Green, 73 N. C. 394; Adriance v. Lagrave, 59 N. Y. 110; Slade v. Joseph, 5 Daly, 187; Com. v. Daniel, 4 Pa. L. J. Rep. (Clark) 49, 6 Pa. L. J. 330: Key v. Jetto, 1 Pittsb. 117: Scott v. Curtis, 27 Vt. 762; Hare v. Hyde, 16 . B. 394; Jacobs v. Jacobs, 3 Dowl. P. C. 675; Reg. v Douglas, 7 Jur. 39; Goodwin v. Lordon, 1 Ad. & El. 378; Addicks v. Bush, 1 Phila. 19; Bours v. Tuckerman, 7 Johns. 538; Lagrave's Case, 14 Abb. Pr. N. S. 333, note. Messrs. William H. Seaman and Francis Williams, for respondent: Where there is an irregular arrest, and an advantage is taken of the irregularity to charge him in custody at the suit of another person, the courts of law will discharge him from both. Ex parte Wilson, 1 Atk. 152; Townsend v. Smith, 47 Wis. 623; Carpenter v. Spooner, 2 Sandf. 717; Matthews v. Tufts, 87 N. Y. 568; Person v. Grier, 66 N. Y. 124; Compton v. Wilder, 40 Ohio St. 130; People v. Judge, 40 Mich. 729; Cannon's Case, 47 Mich. 482; Baldwin v. Judge, 48 Mich. 525; Sherman v. Gundlach, 37 Minn. 118; Chubbuck v. Cleveland, 37 Minn. 466; Palmer v. Rowan, 21 Neb. 452; Jacobson v. Hosmer, 76 Mich. 234; Halsey v. Stewart, 4 N. J. L. 366; Williams ads. Reed, 29 N. J. L. 385; Atchison v. Morris, 11 Fed. Rep. 582; Small v. Montgomery, 23 Fed. Rep. 707; Juneau Bank v. McSpedan, 5 Biss. 64; United States v. Bridgman, 9 Biss. 221; Blair v. Turtle, 1 McCrary, 372; Wanzer v. Bright, 52 Ill. 35; Hili v. Goodrich, 32 Conn. 588. Cole, Ch. J., delivered the opinion of the court: Did the circuit court properly set aside the service of the summons and complaint in this action, and vacate the order of arrest therein? The defendant was brought into this State upon a requisition upon the governor of Illinois, having been charged with the crime of seducing the plaintiff under a promise of marriage, and alleging that he was a fugitive from justice. Upon an examination before a magistrate, he was bound over for trial. At the April Term of the Circuit Court of Sheboygan County, 1889, an information was filed in that court charging the defendant with having committed the crime of seduction. At the October Term of that court the defendant was duly arraigned, and a plea in abatement was interposed, setting up the Statute of Limitations a Many of the state courts hold the same rule. Compton v. Wilder, 40 Ohio St. 130; People v. Judge, 40 Mich. 730; Cannon's Case, 47 Mich. 482; Baldwin v. Judge, 48 Mich. 525; Jacobson v. Hosmer, 76 Mich. 234; Sherman v. Gundlach, 37 Minn. 118; Chubbuck v. Cleveland, 37 Minn. 466; Palmer v. Rowan, 21 Neb. 452; Wanzer v. Bright, 52 Ill. 35; Williams ads. Reed, 29 N. J. L. 385; Hill v. Goodrich, 32 Conn. 588. The last three cases go upon the same ground as Townsend v. Smith, supra. 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 he had departed from the court-room, the deputy sheriff made service of summons and complaint, and order of arrest, upon him, at the suit of the plaintiff, for a breach of promise. It appears that the defendant, at the time of the alleged seduction, was a resident of Sheboygan County. He left the State in January, 1888, and remained outside the State, except that he returned in the nighttime in the same month, and transacted some business, and immediately left. He was brought back on a requisition as a defendant in a criminal action, and as a fugitive from justice. It is said by the counsel for appellant that the affidavit of the defendant upon which the order of the court setting aside the service and order of arrest is based, is insufficient, because it fails to show any fraud or abuse of the process of the court by the appellant, or by any person acting for her, in the procurement of the return of the defendant on the criminal prosecution; nor does it show that the defendant was, at the time he so returned on the requisition, a bona fide citizen of Illinois. But it appears from the affidavit of the plaintiff which was used to obtain the order of arrest that the defendant was not a resident of this State, but resided in the City of Chicago, and that he was about to return to that State; and, while the promise of marriage was made, and the alleged seduction was accomplished, in 1887, it does not appear that the plaintiff bad anything to do in procuring the defendant's return on the requisition of the governor, nor does it appear that there was any fraud used on the part of anyone to get the defendant within the State. In that respect the case is distinguishable from Townsend v. Smith, 47 Wis. 623, and cases where jurisdiction is obtained by fraudulent means. It is assumed, in this case, as a fact, that the defendant had committed the crime of seduction, as alleged, and had withdrawn himself from the State to avoid a prosecution therefor, so as to be a fugitive from justice in a legal sense. Still, having been forcibly brought to the State on a requisition, and the court having exhausted its jurisdiction over him in respect to the crime with which he was charged, could he properly be arrested in a civil action until a reasonable time and opportunity had been given him, after his discharge, to return to the State from which he had been forcibly taken? This is the question involved in the appeal; and we think sound principle requires that, where a person has been brought within the jurisdiction of a court upon a requisition as a fugitive from justice, and has been tried for, or discharged as to, the offense charged against him, that he ought not to be subject to arrest on a civil process until a reasonable time and opportunity had been given him to return to the State from which he was taken. In the courts of the United States, the weight of judicial opinion is in favor of the proposition that, where a party in good faith is brought within the jurisdiction of a State, or detained therein, being a nonresident, either as a party to a suit, or as a witness in another suit, he is not subject to service. Small v. Montgomery, 23 Fed. Rep. 707; Juneau Bank v. McSpedan, 5 The reason for the rule that a person is exempt from arrest under the circumstances disclosed in this case is that sound public policy requires that a person shall be privileged from arrest while going to or from court in all judicial proceedings. The privilege should exist to subserve great public interests, and the due administration of justice. Moreover, as was said by Campbell, J., in Cannon's Case: "It is very well known that the perversion of extradition proceedings has on more than one occasion led to difficulties between nations, and to refusals by state executives to deliver up persons charged with crime whose arrest was supposed to be desired for sinister purposes." The temptation is certainly strong to make such requisitions subservient to private interests; and they are often resorted to to enforce a collection of private debts, or to remove a citizen from his home into a foreign jurisdiction. in order to get service on him in a civil action. For the most cogent reasons, therefore, we think courts of justice are bound to see that no improper use be made of such proceedings, which would look like a violation of good faith, and a perversion of measures which had to be resorted to in order to bring the party accused within their jurisdiction. We do not deem it necessary to comment in detail upon all the cases cited. We will observe, however, that in cases of extradition by a foreign government, under a treaty, the Supreme Court of the United States holds that a person who has been brought within the jurisdiction of a court by virtue of proceedings under an extradition treaty could only be tried for one of the offenses described in said treaty, and for the offense with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity had been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings. United States v. Rauscher, 119 U. S. 407 [30 L. ed. 425]. A distinction is made in some of the authorities between civil and criminal cases. In criminal cases, some courts hold that even a forcible seizure in another country, and the transfer by violence or fraud to this country, is no sufficient reason why the party should not answer when brought within the jurisdiction of a court which has the right to try him for such an offense. See Ker v. Illinois, 119 U. S. 436 [20 L. ed. 421]; Mahon v. Justice, 127 U. S. 700 [32 L. ed. 283]. The offense having been committed in the State to which the party is brought, he may be there tried for it; and neither comity to a sister |