*1 TERM, 1889. 136 Syllabus. bow far and as to in bis individual Nales capacity, instituted by was affected of foreclosure sale by of the decree the validity was both that the same unusual fact plaintiff person very 11 R. ; v. I. 270 in that suit. Perkins Se Ipsam, and defendant v. 55 ; 63 Illinois, Hoag, v. 457 McElhanon, Hoag McElhanon not considered these N. H. But as 172. questions can be best their correct determination and as below, at this time facts are we disclosed, express made when all our decision them, ground no upon,the place opinion upon erred holding Territory Supreme failed to was entitled show pláintiff complaint be re should The defendants relief from a court equity. its merits. to meet the cáse upon quired with directions that the demurrer is reversed decree consis- 'mother overruled, loe proceedings complaint andfor f tent with this opinion. this court for concur in the J. I — Field, but I wish to add that judg- reasons stated ; my opinion anis’ ment Kales himself as administrator recovered by against absolute nullity. Petitioner.1 WIGHT,
In re OF THE UNITED STATES FOR APPEAL FROM THE OIRCÜIT COURT OF THE EASTERN DISTRICT MIOHI&AN. Argued Decided and submitted 1890. March January 3, 1890.
No. a the clerk'has it is Circuit Court of United States When found tlie. preced- next in the an order failed which was ing remanding term of the to the District case pro tuno. direct such an order to be entered nunc corpus of habeas of error to into cannot be used as writ .The all the errors committed the court below. Service,, against An indictment Postal letter carrier of the States Nicholson, Superintendent Wight The docket title of this case is House Correction. Detroit
WIGHT, Petitioner. wrongfully charging that he did secrete and embezzle letter which possession regular his duties, course of came official carrier, intended- to be carried a letter which letter then *2 pecuniary obligations contained five and there and securities of .the States,” of the United a government charge sufficient that the letter intended be a was carried letter embezzled carrier of the United States. against In an indictment a letter carrier for the of a embezzlement letter re- deliver, carry in him his official ceived character to it is not neces- ” “ sary to aver an letter has not been delivered if embezzlement charged. of it is proceeding corpus In a for a from habeas release confinement a letter (cid:127) charged embezzling carrier carriage, him with letters delivered to for this court will not into the motives with the letter which was mail, object éntra.p party into though even towas detect or practices. criminal into a This was for a writ habeas The writ petition corpus. in refused below, and petitioner appealed. stated in the case is opinion. Mr. M. for Henry appellant: Duffield for General, Solicitor submitted on brief, Mr. his appellees, which verbatim the Wilkins, brief Mr. T. Charles adopted for the United attorney States below.. delivered the the court.
Me. Milleb Justice This is an from a Circuit of. the Court appeal for the Eastern District of Michigan discharging habeas court. this writ corpus hearing By before' that. here, Charles H. to be relieved appellant Wight, sought Detroit House under Correction, imprisonment sentence-of District Court of the for the United States Eastern District was indicted Michigan. petitioner that court that on-the 28th of June, 1888, upon-the charge day ilj while he was Oneof-the departments employed postal service of-the aswit, letter States, superintendent, of carriers in the he Detroit, unlaw- post-office wrongfully secreted embezzled certain letters which came fully possession of his course' official regular duty, TERM,
Opinion of tlie Court. were intended- letter carrier, which carried letters contained and securities the United which obligations called notes. There were value, States treasury pecuniary for a similar offence. six other .counts '' trial in the District found a verdict jury Upon motion in He thereupon made petitioner. guilty, against a motion arrest of- that court for’a new and likewise trial, the Dis- motions, of these the argument judgment. Pending to the Circuit the cause trict made an order transferring lan- order is for district, " guage: case be certified the court ordered It is núw by of .the United to the next Circuit Court States remitted ' district.” .... 11th motions heárd in the Circuit Court the. These E. Jackson, before of March, Judges'Howell *3 and on the 12th District B.JBrown, Henry Judge, judge, of entered order was of March, following day record-: States of America v.
Charles Wight. “ In this cause the motion to aside verdict set defendant’s thereon, arrest of mature deliberation and in judgment, are the court here denied.” now
And on the same at the District Court room the city day, of that court made the Detroit, entry: “ The United States for Convicted indictment embezzling n etc. letters, Charles Wight.- motions to-set “The court deliver now judgment new. herein and for a ábsidethe verdict rendered the- jury it is and submitted; and,' heretofore trial, thereupon, argued denied, ordered that are said motions and the same be, hereby, cause knd that this the order heretofore made herein certifying Stages district be. for this Court of the United Circuit': WIGHT, Petitioner. M
and. tbe same hereby, baying improvidently Seated made.
“And tbe said defendant now at bar of being tbe placed tbe court for tbe sentence, court do now sentence thereupon, Charles him, the said Wight, at imprisoned kept House, and in bard tbe of labor, at Detroit tbe Correction, Detroit, for the term of Wayne County, city Michigan, two this from and to stand committed years including day, until this sentence the terms are with.” complied On the-25th an thereafter, August, was made application Harlan to Mr. of this Justice who'was tbe as justice a, to tbe sixth for. at that time circuit, of. habeas signed from to deliver restraint corpus, petitioner, Wight, the. Correction, Detroit House its Nicholson, by'Joseph superin On Justice Harlan made an order application tendent. that a rule issue the Circuit Court the marshal of against the United for the Eastern States District Michigan House of Detroit return superintendent Correction, court within able before that three' after service of days pro cess, to show cause the habeas should issue as why corpus To this rule Nicholson made a return, prayed petition. in which that he he said held said Wight the. restraint his aas in the Detroit House of liberty prisoner Correction, virtue of the of the District sentence States the United for the Eastern District of Michigan, 12th rendered on .the March, 1889, which he copy out; To return, counsel, set Wight,. by excep .of tion he District answer, said that the way the Eastern- District of not, Michigan .had sentence, time of ref to in return, erred said any jurisdiction him,' over .authority sentence Wight, pass *4 because the in him, said-cause against pretended hail 1889, sentence him of March, on pass 1.2th remitted from said District Court certified and duly in the1 district, Circuit of said the United-States said and that the date filed, thereof duly up transcript .of 1889, was March, the 12th sentence, wit, day alleged of.' of hereof is still in the Circuit Court at the date pending TERM, 1889. OCTOBER. and at as more the United States, fully length alleged in the certified of the said cause, shown proceedings copies filed this matter. petition averred that Petitioner also District Court of .Wight th.e States for the Eastern District of the United never Michigan over him for the had or obtainéd rea- jurisdiction : That the indictment on which was' sons petitioner arraigned court did- not the commission .tried charge of offence over which said court had because the jurisdiction, (cid:127) did not offence evidence the case establish against of which said District- Court had St,ates, iaws of jurisdiction. Court in examination of record the Circuit
Upon at this of the habeas cor- case stage proceeding that no the case it was ascertained order remanding pus, to the District Court had'been entered on the Circuit Court of the former the last order on the subjéct journals have recited, one which we .already overruling being and the motion for a new trial motion arrest judgment. Court caused follow- Thereupon judges order to be-made: ing United States America
Charles Wight. ££ as well being personally present defendant, M. and the court hav Duffield, his counsel, Henry Esq., to its records made and entered its attention called ing March, on the 12th cause day above-entitled a.d. Nicholson, return H. superintendent of Josepji to- the writ of habeas House of' Correction, corpus -^Detroit "heretofore the'petition allowed abové-. by'thisrcourt so of-said records, named Charles inspection Wight,'and upon n and entered.as made satisfactorily appears aforesaid,jit full, of- the jqorfect the same is nót a on the. 12th day which was in -made' this-'court order fact By in' show aforesaid, this, -March fails oh the said 12th this court-which was duly *5 WIGHT, Petitioner. said.' out of
March, cause this court into the District remitting Court United States for the of Eastern District Michi- the said therefore, hearipg his gan; Charles-Wight, by thereto, this counsel, its court, own opposition upon motion, recollection of based its of facts of said making said cause as aforesaid into said remitting District now and Court, orders directs the same be entered now as of the said twelfth of one thousand March, hundred day eight to the' facts which are thereof, as eighty-nine, according follows: “ At a'session the Circuit Court of the United States for the sixth circuit and eastern district of continued Michigan, held, at the district court room, pursuant adjournment, in the on the twelfth Détroit, of March, city day hundred Lord thousand our year eight eighty-nine. “ E. Jackson, Present: The Hon. Circuit Hówell Judge-; Brown, 'Hon. 33. District Judge. Henry ) America United States of ' >(cid:127) Charles Wight. ) í‘The defendant as well being personally present
as M. counsel, Duffield, United States Henry Esq., sai.d Black, C. United States represented by attorney, being P. T. Charles assistant United States and the Wilkins, attorney, said United States to the consideration of attorney, objecting court for the reason that said cause part there- was no Court remit District authority law" cause in said court after verdict had District Court ^ .therefore motion, remits said its o.rin hereby uppn fpr cause back into the said Court Eastern Dis- district trict for such as said District action shall Michigan - see fit to také.” 30th Thereupon Circuit Court'on-the day September, it had ,ordered same the nuno tuno -f the order .the to the District entry Court, cause remanding, ,of the that this order cured the being defect record, showed to be the case still pending TERM,
Opinion Court. their further appears opinion, being judg- case had never been re- matter, ment in the lawfully the Circuit District into from the there- moved *6 retained had fore said District Court always jurisdiction an order the writ of habeas the case, corpus. discharging the these orders about several removals It is mainly upon from court into the that relies of the case one other appellant the time of its to show that District Court the pronouncing had no imprisonment against- appellant jurisdic- judgment made, tion the But there also a further case. is point letters, never into the which the embezzled were appellant with, be the carried, the mail intent that should within they of the statute. meaning is Of if the of the District Court the right judge course he him in the orders which made,
opinion expressed by the he had no verdict District Court nevey the then the case had Court, Circuit really transfer Court, been from the of the District withdrawn jurisdiction and the the absence of record question arising .upon it back to the Dis- the of an order Circuit 'Court remanding all that was done in of no because trict Court is consequence, the in that was without view, Circuit Court, jurisdiction, District the case- never was lawfully it did order, make, had to make Court the right former order the case aside its transferring setting In this view of the case Circuit Court. subject, having and control under the really jurisdiction always on the its Court, District sentencing prisoner judgment on this was its and is not examinable verdict within power, writ of habeas corpus.' this view.of
But powers we are not satisfied that not d’écide While-we do the two is a ~one. courts sound our it is not. (as because now, necessary, question for the. shall, we the same in either event,) purposes from the case if order case, treat transferring present into, order, a valid Court the District Court Circuit Circuit remanded so that it. could be only the’ former. or action some order Court by the District Petitioner. WIGHT, was found the records of the such upon No order time sentence was at the imposed' upon prisoner made, if Court; no such order had been previous the case to that was still in the Circuit judgment, pending District Court no had authority pass sentence it did This view of the upon prisoner. subject calls us to whether the nunc tunc awas valid order, and within the September power, the Circuit Court to make.
Our first -was that whatever . the impression might of the courts over their records powers during, regard the term in which the transactions are to have' supposed failure to occurred, which, make record of which,' is the it was amendment, when subject yet to do' this after- an and at a subse- attempted adjournment term of the :of quent powers .making *7 such in the records of limited to the were changes proceedings those in which there remained of some written memoranda the, kind-in the case, the which court,-by among filesl.of the record could be if amended, or the erroneous, entry proper if be one had been could' omitted. And especially supplied, criminal this to make at entries, such procedure power a term of the of what had at subsequent transpired former as would establish the the court to term, authority fine or a sentence of either did not. exist pass imprisonment, at if all, did, was limited to cases which some written or, was done evidence of what remained-in the connected’ papers with the case. satisfied,
¥e an of the are examination au- however, upon this restriction thorities, power does not Mr. first Criminal exist. in his volume on Bishop, the doctrine in section states Proceedings, following (cid:127) terms: closed, “'When the term of the court has is too late-to at undo, done at the term, term., what was former subsequent A of the cannot instance, then opened,- and modified or set aside. it has Neither, held, can clerk, at a an trulv make -term, of, what subsequent entry TERM, 1889.
(cid:127)144 n Opinion Court. this term. But refers preceding transpiréd motion. of his own The clerk, proceeding court power are order nunc entries, called, tunc they pro. made to some in the of what was omission done at the entry supply this the extent of which is term; power preceding yet In defined. mere clerical er- and not limited, easily general, mistake of the So of the be amended way. rors may whom the indictment before name clerk judge found.” .was the clause of this section comes within case present make riUnc twic the court to declares the
which power in the record what was omission some entries 'supply An extensive list of done at the time proceedings. of Mr. in the foot-note among cited Bishop, authorities is to make court those which power support' a former of which term,' done at matter which of some cases made -no directly the clerk had entry, v. McKei Galloway, Administrator that proposition: (cid:127)affirm 374; 10 Missouri, 12; 5 Iredell then, Hyde v. Curling, (Law), 3 McLean, 432; Barker, Nelson v. Clark, Missouri, State Minnesota, ’Minnesota, 427. v. The State 379; Bilansky in this latter case contains a some- as it is found of this full reference to the 'What history subject, and in Blackstoiie’s Com- of. cases, the English reports- result of is to show that 408y vol. mentaries, 3, p. so courts' exercised at an English early tenus, all ore when the great recklessly, pleadings allowed amendments, was necessarily liberality who made declaration corrected abuse-was king, to our to make record we have justices that“ although granted *8 we will not their own them, before yet pleas pleaded their own nor that be a shall warranty wrong, they records nor record them con- them, nor amend their rolls, rase n Blackstone This, declares, enrolment.” thpir trary original their own should by meant private justices only made or the truth to alter a record already iip, rasure change sinister any purpose. in error had been con the case, In the plaintiff Minnesota
WIGHT, Petitioner. . and after of the crime of trial and murder, verdict, victed the case had been carried to Supreme of the on the trial was amended State, proceedings to show that each so as was sworn as affirmatively juror pre in scribed were of the law; by they charge officer them as law; they keep prescribed polled at of defendant their in their with- request ver coming dict; matters had which, seems, been'omitted the-record Court in that case, we judgment. Supreme rule, stated with force true1 think, on this precision “ - said: While we should as far as subject. They go any a rule to of a' court almost reprobating place proceedings at the. subordinate officials entirely mercy thereof, we should be careful rule scrupulously which .adopting would tend to lessen the destroy sanctity .the, verity records. And while we admit amend a record power after the term has in which the record passed was up/ we exercise case where deprecate power there was the least room for doubt about the facts which the amendment was to be made. when But sought ... the facts stand and the. based undisputed, objection'is upon'the technical alone that the term point passed which record was made it would be violence to up, doing spirit which the administration of pervades justice present to sustain it. It is our that this ©f age' neces power, exists and that must in' sity, its exercise measure be the facts of each great case.” governed by case in 5 Iredeil, civil suit, established although doctrine that a court has to amend the records right any. term, what had been preceding omitted either inserting the act of the court or and that' clerk, when so amended it stands as if it had never been if the defective,-or as entries had been made at -the time. proper
The case of Hyde 10 Missouri, Curling, also a civil suit, seems to have well considered, very is thus stated in the A court syllabus has report: -to order had entries court at proceedings term to be previous made’nunc tunc, but -the court where VOL. CXXXIV—10 *9 1889;.., TERM, .
146 Opinion Court. has to mate an it or omitted order which to might have ought it at a made cannot term be nunc made, tunc.” subsequent pro -.. In the case in 18 Missouri, Clark, it State that appeared had been tried indictment on an which was not prisoner at the time of the trial the foreman as a true bill signed that had not marked the time of clerk filing' ' on same, the indictment. It was of error to held, that had a on motion at Supreme right, a to amend its record a statement of these term, subsequent but bill, endorsement facts, only by upon on the that returned (cid:127)regular journal, grand jury entry court the true bills of indictment,” (naming The court under the defendant was convicted). had clerk thq if acts taken failure that, (cid:127)said these place, of the court formal entries on the records make-proper such entries corrected have been by having supplied might made mine tune. pro Mr. Justice Barker, McLean, 379, In Nelson v. McLean aof declaration under to an amendment
observed, in regard to on the misnomer, was ground objected plea to which he that at there amend replied was nothing by, to. leave to amend when could common law the court give only amendments there was to amend by, anciently something ' term which the error to be at the were required amendment made at time but now an occurred, may and he and in some cases judgment; before-judgment, Act of 32d section of the refers Judiciary ' called the Statute of This, which has been commonly jeof- be found in States, ails and amendments the United and is as liberal Revised Statutes, section powers on the to make which confers courts amendments We forced to the in more times. are enacted modern those conclusion that the action of the Circuit in.making which showed that the case imno\record, nunc from that court remanded prior had the- senténce was time when prisoner, passed exercise of legitimate powér. indict- "With which denies that proposition the. regard WIGHT, Petitioner. wbicb it is and tbe evidence in tbe District Court
ment not think we do conferred jurisdiction sustained *10 it', Tbe tbe much comment. grand jurors charged needs tbe this indictment who was of first count Wight, one óf tbe there then and person employed departments of the States, service United to wit, of tbe employed postal letter in tbe to the of carriers superintendent post- an assistant did se- aforesaid, Detroit office at unlawfully wrongfully wbicb came info letter bis and embezzle crete possession of official in- duties, course bis wbicb was tbe regular carrier, carried a letter which letter then and to be by tended five of securities there contained pecuniary obligations of tbe States,” were tbe tbe property government tbe M. and with letter were then and of one Smith, Angus “to in an addressed Oscar enclosed there envelope Singleton, similar is in Cook Mich.” .A Montevideo, Co., statement in all the other counts. effect made under tbe was indicted is section-
Tbe law prisoner lan- tbe Revised of tbe United tbe States, Statutes is as which, case, follows: applicable guage employed anyxdepartment postal “Any person or embezzle or shall secrete letter, service who destroy any mail of letters intrusted to or or wbicb shall him, packet, bag, and wbicb was into bis intended be con- coirie possession, or carried or delivered mail, mail-carrier, veyed by by any other, letter-carrier, or mail-messenger, route-agent, person of tbe or for- service, any department postal employed or or branch warded delivered through any post-office General, established Postmaster authority post-office note, bond, warrant, shall contain draft, check, and wbicb any revenue stamp, stamped envelope, postal-card, postage-stamp, other certificate of or stock, pecuniary obligation money-order, . . Government, or such security person who any tbe or take aforesaid out of let- shall steal things any or letters which shall mail of have ter, bag, cexbe packet, in tbe course of duties either bis official regular bis possession, manner tbe same shall whatever, other provided directed, delivered to tbe whom it is have been party not TERM, 1889. shall, be hard labor for punishable by imprisonment than nor than less more five year years.” in this counsel assumes that argument proceeding, by into' and Habeas we can correct corpus, nearly all errors which have been committed pray Court in the control the. case This has been so originally. often denied and the is so clear, proposition in writ of habeas can be into but the corpus nothing inquired that it is jurisdiction unnecessary pursue entire line of of counsel for argument appellant. Cuddy, S. We Petitioner, 131 U. are of notwithstand- opinion, that- there no ing allegation jurisdiction .counsel because did not the indictment that the letter embezzled charge was intended be carried a letter carrier, that it so alleged in the exact of the statute cited, terms is therefore just sufficient. *11 With that the to failure regard proposition allege .' some that the had not been these indictments letter de- in. it livered the to whom is directed renders the whole party is While we think it unsound. the void,”
proceeding purpose for which this the act is not clause was insertedfin clear, very it was the idea that the intended or probably repel stealing it been of such a had carried letter embezzling through the mail or letter carrier to delivered the its owner and by its did the under served, render purpose party guilty At all the fact its events, matter delivery being statute. defence, it when was the the course proved party had embezzled letter and stolen the employment money, it be will the defendant made the most he presumed of that could defence on We are nof of trial.. us is for to examine into the raised on necessary question ¿vidence trial to whether the securities were put
into the letter and that as mere mail, or.not. decoy it was intended to be .question whether conveyed by mail the letter carrier was a to be fact question ascertained and in a case like wheré jury, this, has been convicted of. a letter and valuable (cid:127)party embezzling in a letter property course passing through regular
WIGHT, Petitioner. Opinion: Duller,' J.,
Dissenting Harlan, C. J. mail and the hands of the letter carrier, where the indictment is a and where one, has been found good party guilty we are not sentenced, into the disposed motives letter into the mails, even though towas detect or in his object criminal entrap party prac- tices. For these reasons the of the Circuit .Court Affirmed.
The Chief Justice whom (with concurréd Mu. Justice Hak- laN) dissenting.
I am to withhold assent to the Compelled conclusion my reached this case. In Dis- my judgment trict Court had after the verdict to transfer the cause to the Circuit done Court, an so, having required the cause from the Circuit Court to the District remitting before the Court, latter could a lawful sen- pronounce - tence. The was sentenced petitioner Courts which, as the record had stood, no then and was jurisdiction,- committed while accordingly,-'and undergoing imprisonment under that sentence sued out the writ of habeas corpus. nunc, Circuit Court then entered an order tunc as term, cause into the previous remitting' District' its action “its recollection of the facts of the basing of said orden” The record before us dis- making does.not close the existence of minutes of the clerk or notes of the any of such an order had been judge entry -directed,'or other official evidence to that and I do not under- effect, stand it contended that there was such. Granting as has that, said, the term is a judge during living *12 record, alter and and from order, supply memory any or decree which and judgment -has been this, pronounced, because he is to retain his own action in his recollec- presumed tion; yet the term has the exercise of such elapsed, extent of an order which juris-, supplying diction in the absence mem- depends, minute or any entry, orandum to ofor proceed by, provision expressly statutory it, not allowing to be conceded in criminal cases. ought statute of „ -amendments and has no jeofails application. TERM, 1889.
Statement of the Case. brother Hablan are my myself ground, ^/Upon should be reversed. Gray Me. Justice at the of this present argument case and took no in its decision. part
McMURRAY v. MORAN. APPEAL THE COURT THE FROM CIRCUIT OF UNITED STATES FOE
THE DISTRICT OF NEVADA. January 1890. 30, 3, 1890. Decided March Argued No. company mortgage made a
A railroad to secure an issue of 3000 bonds of $1000 each. It contracted a contractor for the with construction of part agreed give 31miles of its road and as consideration therefor him agreed 310 of these bonds. Before further issues were made it with York, part banking acquir- house as a consideration for their New bonds, ing only $10,000 these that it would issue bonds to the extent of road, a mile its constructed and on the faith of New York bonds, paid bought house for the and the 31 miles road con- were ' miles, Subsequently, constructing any and without additional structed. mostly it issued more bonds which used the settlement of parties agreement debts to had notice who with New York payment having equity house. Default been made in of interest a bill in Held, mortgage; filed to foreclose the (cid:127)was all-persons .acquiring any. part (1) That as to of the 147 bonds with house,, agreement the 310 notice New York bonds with priority; held latter to' wére entitled .the them, it, taking. (2) That holders who took without-notice whether by purchase company, from the took originally who with'knowledge, York house were entitled to share with New in’the distribution. ' .í¿'Nevada Company,” corpora Oregon Eailroad trust, its- or deed of of Nevada, tion by mortgage tile State tbé sold 1881, executed bargained, conveyed April fran- York all of the ;TJnion Trust New Company propertay, ,chides real and estate, existing personal, then con- or to be of road constructed its line including acquired,