It may be true that when a citizen has been placed under restraint without lawful cause, and without due process of law, he can hold every one, who caused or contributed to his imprisonment, to a strict accountability in a civil action. In the one case the right of asylum is sacred, except so far as it has been yielded by the terms of the international compact, and any abuse or perversion, by one government, of the privileges of arrest granted by the treaty, is a just cause of complaint on the part of the other.

In the other case, so jealous is the law in regard to the invasion of the individual liberty of the citizen, that all unauthorized restraint of his person is followed by damages against the offending party.

But here, a court of competent jurisdiction has the custody of a person who is charged with the commission of certain offenses against the laws of the State. The answer to the charge is, that some other person has done a wrong to the prisoner, by violating the laws of another State, in arresting him without proper authority.

In a criminal case, this can hardly be reckoned a pertinent response. A person arraigned for the commission of a felony cannot plead in bar, that he ought to be excused from answering the charge, because other parties trespassed upon his personal rights.

It is confounding of matters which are essentially separate and distinct. It is a claim, on the part of the accused, that his criminal violations of the law are to be condoned by his personal injuries. It is asking a court to suspend its most responsible duties, to wit: the trial of alleged offenders against the penal code of the State, while the persons charged with the crime are instituting preliminary investigations into the methods adopted to bring them within its jurisdiction. Such a course, for obvious reasons, is allowable in a civil suit between private litigants, but, for like obvious reasons, cannot be and never has been allowed in criminal proceedings, where the object of the prosecution is to punish an offender against the public. On a claim of this sort the court says to the prisoner: "You are going too fast. We will consider one thing at a time, and every thing in its regular order. The precise matter which now concerns you and the court is, whether you are guilty of the crime charged against you. As you happen to be found within our jurisdiction, we will first settle that question, and afterward, if needs be, will inquire into the circumstances attending your rendition for trial, or will leave the respective governments to discuss them, or will remit you to the recovery of such damages as you may be able to obtain in the civil courts for the violation of your rights of person."

that she might be discharged on the ground that she had been improperly apprehended in a foreign country. It appeared on the return that an indictment for perjury has been found against her in London; that a warrant for her arrest to appear and plead had been granted; that the police officer having the warrants went beyond his jurisdiction, and followed her to Brussels and then arrested her, conveyed her to Ostend against her will, and thence back to England. Chief Justice Tenterden, on discharging the rule, said: "The question is this, whether if a person charged with a crime is found in his country it is the duty of the court to take care that such a party shall be answerable to justice, or whether we have to consider the circumstances under which she was brought here." I thought, and still continue to think, that we cannot inquire into them.

The courts of South Carolina in the same year were considering the same question, as appears in the case of The State v. Smith, reported in 1 Bailey, 283.

In the case of The State v. Brewster, 7 Vt. 118, before the Supreme Court of Vermont, in 1835, an attempt had been made in the court below to have the proceedings in an indictment against the defendant dismissed on the ground that he was forcibly and against his will, and without the assent of the authorities of Canada, brought from that province. The court held that the matter set up could not avail the prisoner.

Dow's case, reported in 18 Penn. St. 37, is in many of its features quite similar to the one under consideration, but the illegality of the capture could not be set up by the fugitive.

The case of State v. Ross, 21 Iowa, 467, was cited also, and no reference was made to the cases of United States v. Caldwell, 8 Blatchf. C. C. R. 131, because they had been fully discussed in the argument, and were not considered pertinent in the present inquiry.

They all turn upon the construction of the treaty between the United States and Great Britain, in regard to the extradition of fugitives from justice, and involve the authority of the courts to hold a surrendered fugitive for trial for any other than extraditable offenses. It may, however, be remarked, in reference to this question, that the 2d clause of the VIth Article of the Constitution of the United States, treaties are declared to be the supreme law of the land, and by the 2d section of the IIId Article they are brought as directly within the judicial power, as cases in law and equity, arising under the Constitution and laws of the United States; unless, therefore, there was something in the treaty with Great Britain which required the aid of legislative provisions to give it effect (See 2 Pet. 353), it is somewhat difficult to understand or indorse the reasoning of the learned judge who decided the case of Caldwell v. Lawrence, and especially where he asserts that complaints of the abuses of the extradition proceedings do not form a proper subject of investigation in the courts of the United States.

in both of which it was held that when a party was liable to be detained on a criminal charge, the court would not inquire on habeas corpus into the manner in which the capture had been effected.

The case of Susannah Scott, 9 Barn. & Cress, 446, before the King's Bench in 1829, was thus: A rule nisi had been obtained for a habeas corpus to bring the body of the prisoner in the custody of the marshal, in order

It is the conclusion of the court upon principle and

the prisoner for trial for the offense charged against him without reference to the circumstances under which his arrest was made in a foreign jurisdiction. It necessarily follows that there is no authority here to discharge him on the habeas corpus. Neither the Constitution of the United States nor the 753d sec. of the Rev. Stat., makes any provision for the writ in such a case, and the prisoner must be remanded.

USURY BY NATIONAL BANKS.

SUPREME COURT OF OHIO, DECEMBER, 1877.

HADE, Receiver, v. MCVAY.* Jurisdiction of State courts-Set-off against receiver — Penalty cannot be set off.

State courts have jurisdiction of actions against National banks for penalties and forfeiture prescribed by act of Congress for exacting usurious interest.+

A right of set-off, perfect and available against a bank at the time of the appointment of a receiver, may be pleaded in an action by the receiver.

In an action on a note discounted by a National bank the defendant cannot set off the penalty of twice the amount of interest paid on other loans.+

A

CTION by the plaintiff, as receiver of the First National Bank of Mansfield, against the defendants, McVay, Allison & Co., drawers, and Walter Gledhill, acceptor, of a bill of exchange. The bill was drawn for $3,000, and indorsed by the drawers to the bank. Before the commencement of the action $1,500 had been paid thereon. The answer, among other things, alleged that McVay, Allison & Co., desirous of obtaining a loan of money, drew said bill, secured its acceptance by Gledhill for their accommodation merely, and then procured its discount by the bank; the officers of the bank having full knowledge that Gledhill was only an accommodation acceptor; that in discounting the bill the bank reserved, in advance, $93 as interest for ninety days, a rate exceeding that allowed by law.

The answer further alleged, that during the two years then next preceding, McVay, Allison & Co. had borrowed from the bank divers other sums of money, the bank in each case knowingly reserving and receiving a rate of interest greater than that allowed by law, which the borrowers had paid. These alleged usurious transactions were particularly set out in the answer. The defendants prayed that the interest agreed to be paid on the bill in suit be adjudged forfeited, and that they recover by reason of such other usurious loans twice the amount of the interest paid thereon, and that that sum be applied by way of set-off to the plaintiff's claim.

To the matter set up as a set-off the plaintiff demurred. The demurrer was overruled, the interest agreed to be paid on the bill was adjudged forfeited, and the amount of interest paid on said independent loans was ascertained, and twice its amount set off against the plaintiff's claim. The case was taken to the District Court on error, and by that court reserved for decision here.

Geddes, Dickey & Jenner for plaintiff in error. Dirlam & Leyman, for defendants in error. BOYNTON, J. The rights of the parties became fixed before the approval of the Revised Statutes of the United States; and in so far as the case is affected by the National Banking Act, it is governed by the act of 1864.

Section 30 of that act, among other things, provided that the banking association might take and reserve,

*From E. L. De Witt, Esq., reporter, and to appear in vol. 31, Ohio State Reports.

+ See, also, Ordway v. Cent. Nat. Bank, Thomps. Nat. Bank Cas. 559, sed quære; Missouri River Telegraph Co. v. First Nat. Bank, id. 401; Newell v. Nat. Bank, id. 501.

* See Hintermister v. First Nat. Bank. Thomps. Nat Bank. Cas. 741; Brown v. Sec. Nat. Bank, id. 849; Wiley v. Starbuck, id. 436.

*

on any loan or discount made, * interest at the rate allowed by the laws of the State where the bank was located, and that "the knowingly taking, receiving, reserving, or charging a rate of interest greater than aforesaid, shall be held and adjudged a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon. In case a greater rate of interest has been paid, the person or persons paying the same, or their legal representatives, may recover back, in any action of debt, twice the amount of the interest thus paid, from the association taking or receiving the same; provided such action is commenced within two years from the time the usurious transaction occurred."

The position of the plaintiff is, that the liability created by the provisions of this section was strictly penal, and that an action to enforce it is cognizable only in the courts of the United States. This claim is founded on the provisions of the act of Congress of 1789 (1 Stats. at Large. 77, § 10; see U. S. R. S., § 711), which declares, that the jurisdiction vested in the courts of the United States, in suits for penalties and forfeitures incurred under the laws of the United States, shall be exclusive of the courts of the several States.

If the question of jurisdiction depended for its solution on this provision alone, the position contended for would seem to be well founded. But since its enactment, Congress has, in many instances, professed in direct terms to invest State tribunals with power to enforce penalties incurred exclusively in the violation of the laws of the United States. Claflin v. Ilouseman, 93 U. S. 130. By section 57 of said National Banking Act, it was provided, "that suits, aotions and proceedings against any association, under this act, may be had in any Circuit, District or Territorial Court of the United States, held within the district in which such association may be established; or in any State, county or municipal court in the county or city in which such association is located, having jurisdiction in similar cases."

By this provision, the impediment to the exercise of jurisdiction by the State tribunals, created by the act of 1789, was removed, and the consent of Congress expressly given to the exercise of jurisdiction by the State courts, if competent to receive it, concurrent with that of the Federal courts, in suits, actions and proceedings arising under the Banking Act. Whether the same assent was given by section 8, it is unnecessary to consider. But, it is said, if it be held to have been the purpose of Congress to clothe the judicial tribunals of the States with jurisdiction to hear and determine causes arising under the Banking Act, that there still remains lying back of the fact of jurisdiction and upon which the fact depends, the question of capacity or power to take. And many cases are cited affirming the incapacity of State courts to receive and exercise jurisdiction to enforce a forfeiture or penalty imposed for a violation of the laws of the United States. But the doctrine of these cases has been repeatedly disapproved and rejected. Gilman v. Philadelphia, 3 Wall. 713; Ex parte Niel, 13 id. 240, and Claflin v. Houseman, supra.

In the case last cited it was held that the statutes of the United States are as much the law of the land in any State as are those of the State, and although exclusive jurisdiction may be given to the Federal courts, yet where it is not so given, either expressly

prevail in this State. Shelton v. Gill, 11 Ohio, 417; Commercial Bank of Cincinnati v. Reed, id. 498; Baggs v. Loudenback, 12 id. 153; Spalding v. The Bank of Muskingum, id. 545; Rains v. Scott, 13 id. 107; Graham v. Cooper, 17 id. 605. Whether well or ill-founded, the rule is firmly settled, that the party paying is in pari delicto with the party receiving, and hence is denied an action at common law to recover back the interest paid in excess of the legal rate.

It may be said, that the rule denying the action in such case does not go to the extent of denying the existence of a cause of action arising upon contract, in favor of the borrower against the lender, but that it merely affects or cuts off the remedy as a punishment of the borrower for participating in the illegal transaction. But if we grant this, the proposition cannot De successfully maintained upon any sound principle, or is it sanctioned by any authority known to us, that in action upon a statute for twice the entire interest paid is an action arising upon contract. No one of the cases above cited sustains or supports the alleged right to recover upon a promise, implied in law, more than the amount paid in excess of the legal rate. They rest upon the ground that such excess is the money of the borrower in the hands of the lender; but that the borrower's equity, which gives rise to implication of a promise, is fully satisfied when that sum is restored to him, which was wrongfully taken from him, is clearly deducible from the principle adjudged.

The original act of February, 1863 (12 U. S. Stat. 678, § 46), in case illegal interest was taken or reserved, forfeited the entire debt. The act of 1864 reduced the sum to be forfeited to double the interest received. Both provisions were penal, differing only in the sum declared forfeited. Numerous decided cases hold, that the repeal of a statute creating a penalty or forfeiture takes away the right to enforce it. Oriental Bank v. Freeze, 6 Shep. (Me.) 109; Eaton v. Graham, 11 Ill. 619; Sumner v. Cummings, 23 Vt. 427; Washburn v. Franklin, 35 Barb. 599; Engel v. Schurtz, 1 Mich. 150; Cummings v. Chandler, 26 Me. 453.

That this would not be the result from a repeal of the statute creating the liability, if the cause of action arose upon contract, is established by a like uniform current of authorities. Williar v. Baltimore Butchers' Loan Association, 45 Md. 546; Dash v. Van Kleck, 7 Johns. 477; Wright v. Hawkins, 28 Texas, 452.

The principle is clearly illustrated in Williar v. Baltimore Butchers' Loan Association. The plaintiff brought an action to recover back usurious interest paid, the statute declaring that a person contracting for usury should forfeit the excess above the legal rate. While the action was pending, an act was passed by the Legislature taking away the right of action for usury in all cases where the same had been paid. It was contended by the defendant, that this act took away the right of the pending action; but the court held that the plaintiff's right in such cause of action was a vested one, which the Legislature was wholly incompetent to take away. The decision was placed on the ground that the excess of interest which the act first mentioned authorized to be recovered back, was not a forfeiture or penalty, but was money belonging to the plaintiff, in the hands of the defendant, the right to recover which existed independently of the statute, and could not be impaired or affected by its repeal. "A vested right of action is property in the same sense in which tangible things are property, and is equally protected from arbitrary interference.

Where it springs from contract, or from the principles of the common law, it is not competent for the Legislature to take it away." Cooley's Const. Lim. 362, and

note.

In Oriental Bank v. Freeze, supra, it is said: "Where a party, by statute provisions, becomes entitled to recover a judgment, in the nature of a penalty, for a sum greater than that which is justly due to him, the right to the amount which may be recovered, does not become vested until after judgment." In Lucas v. Government National Bank, 78 Penn. St. 228, a case quite nearly in point, where the penalty given by the act creating it was sought to be used as a set-off, the court say: "Technically the latter part of the affidavit of defense is bad, for it claims as a set-off that which the act of Congress imposes as a penalty on the usurious transaction, to wit, double the amount of the interest paid. In this the defendants had no such interest as would enable them to use it by way of defalcation, for it could be acquired only through an action of debt, under the statute, and until the forfeiture was pronounced in their favor, by judgment of the court, they had nothing therein which would be the subject of set-off." To the same effect is Overholt v. National Bank of Mt. Pleasant, 82 Penn. St. 490. In Bank of Chambersburg v. Commonwealth, 2 Grant, 384, it was held that "a penalty for breach of a statute is not, when sued for, within the defalcation acts, nor subject to any manner of set-off." Without pursuing the subject further, in our opinion the court properly adjudged the interest reserved on the bill in suit forfeited, and improperly held that the penalty imposed by the act of Congress for receiving usurious interest on other and independent loans, was available as a setoff.

Judgment reversed, demurrer to the set-off sustained, and judgment for the plaintiff.

RECENT AMERICAN DECISIONS.

SUPREME JUDICIAL COURT OF MAINE.*

BANKRUPTCY.

Of member of firm.-When a member of a firm files his petition in bankruptcy, giving no schedule of firm debts and assets, nor praying for a discharge from firm liabilities, his discharge, when obtained, will only relieve him from his individual indebtedness and not from partnership liability. Corey v. Perry.

HUSBAND AND WIFE.

Liability of husband for necessaries for wife: for what not liable. -The husband is liable for necessaries furnished a wife, who for good and sufficient cause has left his bed aud board. One cannot furnish articles which are not necessaries and recover a fraction of their value because they might have answered the purpose of other articles which would have been necessaries. The articles furnished must be necessaries, suitable and proper, regard being had to the condition of the parties, else no recovery can be had. Thorpe v. Shapleigh.

INTEREST.

When statute and not contract governs: note past due. When a note is given on time, with interest at the

* To appear in 67 Maine Reports.

1. When parties part owners, not partners: construction of contract.-Eames delivered J. S. his horse with this bill of sale: "In consideration of * ** * dollars paid me by J. S. I have sold him one-half of my horse. Said J. S. to keep and handle the horse; I to pay one-half the expenses and to receive one-half the profits. My part of keeping to be $2.50 per week." Held, (1) That this bill of sale made them part owners, but not partners. (2) That in addition to the stipulated price for keeping, Eames was liable pro rata for the expense of "handling. (3) That neither party had the right to sell the animal, mortgage him or incur expense for his support upon the credit of both, as he might if there had been a partnership. (4) The stipulated sum for keeping was payable absolutely, profits or no profits, and recoverable in assumpsit. Chapman v. Eames.

2. Payment of private debt from funds: effect of.A partner has no right to draw a firm order on a debtor to the firm in payment of his own private debt, without the assent, express or implied, of his copartBut the money received on such order cannot be recovered in the name of the firm. Blodgett v. Sleeper.

ner.

2 SALE.

Rights of conditional vendee: mortgage by vendor after sale.-Property, in the possession of a vendee who is not to become the owner of the title until he has fully paid for the same, may, at any time before the price is wholly paid, be mortgaged by the vendor to another person, and such person will acquire a title to the property thereby superior to that of the conditional vendee. Everett v. Hall.

SHIPPING.

1. Rules for avoiding collisions between vessels applied.-Under the United States statute rules for avoiding collisions between steamships and sailing vessels, if two vessels, one of which is a sail-vessel and the other a steam-vessel, are proceeding in such directions as to involve risk of collision, the steamvessel shall keep out of the way of the sail-vessel. Every steam-vessel, when approaching another vessel so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse. When by the rules one of two vessels shall keep out of the way, the other shall keep her course. Lord v. Hazeltine.

2. Negligence: common-law rule applied.—If the collision is the fault of the plaintiff, or of both parties, or of neither, the plaintiff cannot recover. If it happens by the fault of the defendant, and without any contributory fault of the plaintiff, he can recover, provided he sustains the burden of proof which the law imposes on him. Ib.

TRESPASS.

Taking possession of premises held over by tenant at will.-Where a tenant at will occupies a house of his own on the land of another and does not remove it within a reasonable time after his tenancy terminates, and after notice and request to do so, the owner of the land will not be a trespasser for entering and taking possession of the house. Sullivan v. Carberry.

RECENT BANKRUPTCY DECISIONS.
COMPOSITION.

Fraud in: when not available: laches.-Where, pending proceedings in composition, certain suspicious circumstances appear, showing that the votes of creditors had been purchased, and the creditors entertaining those suspicions do not make any inquiry into the facts, but accept the settlement, they cannot after a lapse of a year or two be heard to set aside the composition because of such fraud. In bankruptcy proceedings, where the question is one of the exercise of discretion, laches, when coupled with injury to innocent parties, are circumstances of controlling weight. U. S. Dist. Ct., S. D. New York. In re Herman, 17 Nat. Bankr. Reg. 440.

DISCHARGE,

Debts contracted by fraud.-Debts contracted by fraud are not discharged by composition in bankruptcy. Sup. Ct., New York, 4th Dept. Libbey v. Strasburger, 17 Nat. Bankr. Reg. 468.

EXECUTION.

When valid against individual property on firm debt.Where an execution lien has been obtained in good faith, before bankruptcy, on the individual property of a member of a partnership firm, under a judgment against the firm, the statutory lien will not yield to the equities of the separate creditors of that partner. U. S. Dist. Ct., S. D. Illinois. In re Sandusky, 17 Nat. Bankr. Reg. 452.

LEASE.

Assignee in bankruptcy, when not assignee of lease.The bankrupt corporation occupied a store in Fulton street, New York, under a lease for a term of years, at a yearly rental of $3,000. A petition was filed against the corporation in August, 1876, and an adjudication was subsequently had and an assignee appointed, who, on the 7th of February, 1877, took possession of the goods and removed them from the store. He never had actual or constructive possession of the store, and no sales were made therein. The goods brought less than $3,000 upon the sale. The landlord claims for rent of the premises from the time of the filing of the petition to the time of removal by the assignee. Held, that the assignee never became assignee of the lease, and that the landlord can only claim as against the estate for the use and occupation of the premises as a place of storage or safe-keeping, and that forty dollars a month was a reasonable sum for such use and occupation under the circumstances. U. S. Dist. Ct., S. D. New York. In re Lucius Hart Manufacturing Co., 17 Nat. Bankr. Reg. 459.

PARTNERSHIP.

1. Composition by: refusal of member of firm to join in voluntary proceedings.-A refusal on the part of one of the members of a firm to join in voluntary proceedings instituted by his partners, to sign the composition or to attend and be examined, may well deprive him of all benefit of the composition; but, unless the refusal or neglect is the result of some fraud on the part of those partners who do carry on the proceedings, it is no reason for avoiding those proceedings as to them. U. S. Dist. Ct., S. D. New York. In re Henry, Curran & Co., 17 Nat. Baukr. Reg. 463.

2. Special partner: fraud.-The bankrupts included in their schedule of liabilities the special capital of one G., who, under the articles of copartnership, was a