Ohio Law Journal.

COLUMBUS, OHIO, : JULY 13, 1882. THE KAIIN KIDNAPPING CASE.

Some months ago an officer from Philadel phia, Penn., appeared in this state armed with a requisition upon Governor Foster for the body of one Moses Kalm, a resident and business man of Cincinnati. Kahn was charged with having disposed of his property for the purpose of defrauding creditors while a citizen of Pennsylvania, and the papers being in proper form, the man was surrendered and taken back to Pennsylvania. He paid the claim held by the creditors who had instituted the proceeding and was released.

Within a few weeks past another requisition came, and it being shown that the former one had been used to extort money from the victim, the Governor very properly refused to surrender him. But the officers, in violation

of all law and decency, successfully kidnapped Mr. Kahn and took him to Philadelphia.

There has been a general outburst of indiguation throughout the State, caused by this high-handed villainy, and a great variety of opinions expressed as to the real extent of the outrage. Judges and lawyers have been interviewed and opinions pumped out concerning the legality of the proceeding, and the power of officers and the interpretation of extradition laws; and the quantity of nonsense given as law is positively startling.

It transpires upon investigation that Kalm was arrested in Philadelphia and gave bail for his appearance in the Quarter Sessions, for trial upon the offense charged, to-wit: dispos ing of his property to defraud creditors; that he did not appear and his bail was forfeited; that a "bail piece" was issued by his bondsmen and placed in the hands of the officer and upon that a requisition was obtained, which not being honored, the man was kidnapped as stated above.

Many newspapers have been interviewing lawyers upon the subject of bail pieces and

the powers of officers thereunder, and the views taken are various and conflicting.

The gentlemen who have given opinions are generally agreed that if the officer had a genuine bail piece that he had an undoubted right to take the man whether the Pennsylvania requisition was honored by Governor Foster

or not.

Various authorities are even cited in support of this ridiculous doctrine, among which a case in Yeates' Reports (Pa.) and 3rd Conneetient are considered conclusive. As usual the most important link in the chain is overlooked; and much foolish theorizing the result.

When a person charged with crime or arrested upon civil process is admitted to bail, the acceptance of such bail is simply, as the name implies, a delivery of the defendant to the person who becomes surety for his appearance or the payment of the debt. This control over the person of the defendant by the bondsman is as absolute as that of the sheriff,

except where the sheriff is also the gaoler.

The bondsman cannot confine the defendant

longer than necessary to surrender him to the

sheriff or other officer.

the jurisdiction of the court where he executed the undertaking, if armed with a bail piece and even out of the State. (1 Bald. C. C. 578. 8 Pick. 138, 7 Johns, N. Y. 145.) And the cases cited from Connecticut and Pennsylvania also apply to and support this proposition. He may take him while attending court as a suitor, or at any time, even on Sunday; 4 Yeates, Pa. 123. 4 Conn. 170; may break open doors if necessary, 7 Johns, N. Y. 1441; + Conn. 166; may command the assistance of the sheriff and his officers, 8 Pick. 138; and

N. J. 568.

The bail piece of the common law was simply a certificate that the defendant had been admitted to bail upon the account of the bondsman.

This far it looks very much as though the kidnapper of Kahn, if in the possession of a bail piece, was not a kidnapper after all. Under the statutes of Pennsylvania, when bail is taken for the appearance of a person charged with a crime or misdemeanor, it must be for his appearance at the next term, which in no case can be more than three months distant, in point of time, as the quarter sessions are of course held quarterly. Kahn, then, must have been admitted to bail several months, probably a year or more ago. At the term to which he was recognized to appear, the bail bond must

have been declared forfeited. The moment the forfeiture of the bond takes place the power of the bondsman ceases and the efficacy of his bail piece is terminated. Thenceforth he can have no power whatever over the person of the defendant. He may bring his action and recover whatever damages he may have sustained by the forfeiture of the bond, but his power over the person is irrecoverably lost. The court when declaring the recognizance forfeited may direct a capias to issue for the defendant and he may be again arrested and tried and convicted; but with that the former bondsman has nothing to do, Were it otherwise, the admission to bail would be but a mortgage on the body of the defendant which the bondsman might at any time after default, foreclose and make into a title absolute. If this were true, the right to the body of the defendant, after forfeiture of the recognizance, would exclude the power of the State to take, or try or punish him for the offense committed. The mere fact that the State may rearrest, is conclusive as to the correctness of the proposition that the boudsman has no power over the party recognized, after the forfeiturc of the bond. The conclusion is inevitable that the kidnappers of Kahn were without any warrant of law and were guilty of an outrage which should be promptly punished.

fence, a requisition made upon the Governor of Pennsylvania and the parties brought back for trial and punishment.

Since writing the above the report comes that Mr. Kahn was not only outrageously abused but that the whole scheme was one of levying black-mail, and that upon his steadfast refusal to pay tribute, he was discharged and returned to his home. His captors probably happened on some lawyer with sense enough to advise them that they had most wantonly exceeded their power; and that after the forfeiture of bail in a criminal case, no bail piece can ever live for a moment.

THE SUPREME COURT.

With the adjournment of this court there usually springs up a course of strictures upon the work performed during the session, and censure because more was not accomplished. It is a fact that our Supreme Court has come to be tegarded as a sort of circumlocution office through which matters never finally pass, except by miracle or accident. This belief obtains with the people who take for granted the standing jokes of small lawyers that a case once buried in the Supreme Court is permanently interred. That there are more cases being filed than disposed of, is true enough; but that this is the fault of the court, directly, is not true. The modes of relief from this overwhelming array of cases constantly confronting the court, have been so often discussed by us, as well as by the State aud County Bar Associations, and are so plain and simple that they need not be repeated here. The difficulty now existing seems to be the absolute imbecility of a majority of the wise men sent here annually to make laws. It has been fondly hoped that they would contrive some measure of relief, or in default of such contrivance, would adopt the plan recommended by the State Bar Association; but these hopes will never be realized until some special Moses is created for that purpose and sent to the legisla turc-a conjunction of events most dismally uncertain. Temporary relief might be found in the creation of a Supreme Court Commission which is within the power of the legislature, if the Supreme Court itself would give it life by a request, but the adoption of temporary measures of relief always postpones indefinitely those

During its past session two hundred and fortyone cases on the general docket have been considered and disposed, of by the court. Reports have been prepared, and opinions written in one hundred and twenty cases. Two hundred and eight cases on the motion docket have also been considered, and forty cases taken out of their order. These simple figures convey no idea whatever of the labor performed by the court. In every case considered and disposed of, there is such a mass of testimony and argument, of obscure pleading and citation of authorities, that the wonder is, that a decision could be reached in one tenth as many. The writing of the opinions and the consultation which must precede and follow such writing, the changes in logic and conclusion, to make the opinion suit all concurring judges, is a matter of time and labor not. well understood by members of the bar, even, and not at all by those outside. The motion docket compels the examination and determination of many fine points of law, and indeed many of the severest and most difficult questions arise upon motions. The figures we have given show that the court, to have accomplished so much must have been unremitting in its labor and at the same time capable of performing wonderful amount of work.

The large number of cases taken out of their order and disposed of indicates great capability and industry. All these involve the most intricate and trying questions of law, and of the construction of statutes, wills, etc., and require long close study and extensive examination of authorities. The following are some of these cases with the questions involved:

Treasurer of Cuyahoga County against the Northern Transportation Company, involving a question as to the residence of a corporation for

taxation.

Coan against Flagg, from Scioto County, involving the extent of the grant of lands by the Government to the Ohio Agricultural and Mechanical College.

The State ex rel. against the Commissioners of Fayette County, involving the validity of county bonds issued to raise money for a road improvement.

The State ex rel. against Powers, holding that local laws regulating the organization and management of common schools are unconstitutional. The State ex rel. against the Treasurer of Hamilton County, involving the duty of State Auditor and County Treasurer as to settlements of the latter with the State.

Millikin against Welliver, and Cracraft

Wagner against the New York, Chicago and St. Louis Railroad Company, from Cuyahoga County, involving the power of a railroad company, after a verdict in appropriation proceedings, and before judgment thereon, to possession of the premises upon a deposit of money.

The State ex rel. against the Standard Life Association of America, involving a construction of the statutes relating to insurance on the mutual protection and relief plan.

The State ex rel. against Charles H. Moore, Superintendent of Insurance, involving the right of such associations organized in another State to do business in this State.

Shorten against Drake, from Hamilton County, involving the priority of liens between mortgagees and execution and attaching creditors on lands conveyed to defraud creditors.

Ohio Railroad Company against Hugh J. Jewett, involving the power of a court to appoint a Receiver for a railroad company.

C. W. Rowland against Meader Furniture liability of corporations de facto and the stockCompany, from Hamilton County, involving the

holders thereof.

[COMMUNICATED.]

EDITORS OпIO LAW JOURNAL.

Your issue of July 6, '82, contains au article relative to a proceeding had recently before a Justice of this city, in which the writer appeared for the plaintiff, and among others Ex-Mayor Collins appeared for the defendants. Mr. Ricketts is much disturbed about the manner in which the cause was conducted, the preliminary proceedings had before the actual trial began, and the final result and conclusion of the trial.

Mr. Editor, it is neither my wish nor desire to consume space in your good JOURNAL discussing a matter that ought never have been commenced at all, and one especially involving little or nothing that will benefit any one in particular unless it be the author of the communication dated June 19, '82, but since he has occupied considerable space and written and expressed himself freely and at length, I propose to exercise the same right in reply to

his article. The statement of facts in the cause from which this discussion springs, is about as follows: The summons was returnable June 12, '82; Mr. Collins, who was then the attorney for defendants, appeared and informed the court that he was not ready for trial and could not possibly go to trial that week. The Justice thereupon postponed the hearing to Friday, June 16, adding that if the attorney for the defendants could not get ready for trial at that date he would grant further time. No one will dispute the right of the court to grant an eight day continuance. The continuance did not exceed the time specified in Section 6606 and was therefore legal and just. Nor was an affidavit necessary for a continuance under the Section above cited. The time was extended from Friday to Monday by the Justice at the request of defendant's counsel. There seemed to be a misunderstanding as to the hour set for hearing, plaintiff's thinking the time was six o'clock P. M. and defendant labored under the impression that the hour fixed for trial was seven o'clock, P. M. of same day. At six o'clock P. M. plaintiffs took a default judgment. At seven o'clock, Allen Miller and myself appeared ready for trial, when the court informed us that we were "too late." "Default judgment was taken an hour ago." Thereupon the judgment was set aside and the proper reasons for such action were embodied in affidavits filed for that purpose, in accordance with Section 6578. The Justice held defendants for the accrued costs which was proper and compelled us to give security for the rent before we could go on with the trial; all of which was complied with. With this statement of facts will T. H. R. or his client point out wherein they were injured? Dare he or either of them complain of partiality shown, either by the court or counsel of the other side?

On the other hand will T. H. R. deny that the court allowed him abundance of time and

the broadest liberality possible to make a good

case?

PARTIES-WITNESS- PROMISSORY

NOTE.

SUPREME COURT OF IOWA.

Conger, adm'r, etc. v. BEAN AND OTHERS.

April 22, 1882.

against several defendants on a promissory note made to the intestate, and after one of the defendants had answered he entered into a stipulation with the plaintiff and withdrew his answer, plaintiff to have the right to take judgment against him for a certain amount, held, that he was no longer a party to the action, and that his deposition was admissible in evidence.

Where an action was brought by an administrator

Where a defendant examined as a witness in behalf of himself stated that he signed the note in his own house, the allowance of his answer as to who was in his house at that time is not objectionable as being testimony in respect to a personal transaction between the witness and plaintiff's intestate.

Where defendants read in evidence portions of the tes timony of the plaintiff's intestate as his admissions given on a former trial, and the court admitted only a portion of the remainder which was offered by plaintiff, held, not error, if the testimony excluded would have had no tendency to explain or modify the part produced.

Where the maker of a note rofused to sign with a certain other party as surety, and the holder of the note afterwards went and procured the signature thereto of such party as surety, the simple concealment from him of what he was entitled to know without proof that he was induced to sign by fraudulent representations will enable him to escape liability.

Instructions asked, if based upon evidence which in no proper sense was in the case, are properly refused.

Action upon a promissory note executed to the plaintiff's intestate, H. M. Conger, by the defendants, Jame M. and Charles C. Bean, and James Patterson. After the defendant, James M. Bean had answered, a stipulation was entered into between him and the plaintiff, whereby Bean withdrew his answer, and plaintiff was to have the right to take judgment against him for a certain amount, being less than the amount claimed and less than the face of the note.

Charles C. Bean, for answer, admitted the execution of the note, but averred that he signed it as surety, and that after the delivery of the note to the plaintiff's intestate the payee of the note, without his knowledge or consent, caused the note to be materially altered by obtaining the signature thereto of James Patterson, and by reason of which he, the said Charles C. Bean, became discharged.

James Patterson, for anwer, admitted the execution of the note, but averred that he signed the note as surety; that he was induced to do so by the supposition that the principal maker, James M. Bean, desired him to sign it; that in fact James M. Bean did not desire him to sign it, and so informed plaintiff's intestate; that the plaintiff's intestate fraudulently concealed the fact from the defendant, and thereby misled the defendant; that at the time he signed the note it had been fully executed and delivered, and his signature was procured to it without consideration. The issues formed, as between the plaintiff and the defendants, Charles C. Bean and James Patterson, were tried to a jury, and verdict and judg

ment were rendered for the defendants. The plaintiff appeals. ADAMS, J.

1. Upon the trial the deposition of James M. Bean was read in evidence by defendants. The plaintiff objected to its being read upon the ground that the action was being prosecuted by an administrator, and the testimony pertained to a personal transaction between the plaintiff's intestate and the witness, and the witness was a party to the action. The admission of the deposition against the plaintiff's objection is assigned as error. If James M. Bean was a party to the action within the meaning of the statute, (section 3639 of the code,) his deposition was improperly admitted. That he was technically a party cannot be denied. But after the filing of the stipulation referred to, his rights were virtually concluded. It is true, judgment does not appear to have been rendered against him as the stipulation provided, but it could have been rendered. After the filing of the stipulation the rendition of judgment was a mere formality. It appears to us that the case was not essentially different from what it would have been if judgment had already been rendered. Now, if it had been rendered, he action from that time would have been simply an action against the other defendants. It would have been no more an action against James M. Bean than if it had been dismissed as to him. In our opinion he was not a party within the meaning of the statute, and the court did not err in admitting his deposition. 2. Charles C. Bean was examined as a witness in behalf of himself, After having stated that he signed the note in his own house, he was asked and allowed to state who were in the house at that time. This was objected to by the plaintiff as calling for testimony in respect to a personal transaction between the witness and the plaintiff's intestate; but in our opinion it could not properly be so regarded.

3. The defendants read in evidence portions of the testimony of the plaintiff's intestate as his admissions given upon the former trial. The plaintiff then offered the remainder of the testimony of his intestate. The court admitted only a portion of the remainder. The plaintiff claims that the court erred in not admitting the whole. Section 3650 of the code provides that when part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other party. But we are unable to see that the testimony excluded would, if it had been admitted, have had any tendency to explain or modify the part introduced. It could not, we think, be said to be upon the same subject.

4. The plaintiff asked the court to instruct the jury that unless Patterson was induced to sign the note by fraudulent representations made to him by H. M. Conger for the purpose of inducing him to sign the note, he could not escape liability. The court refused to so instruct, and instructed in substance, that Patterson could not escape liability unless he was inducd to sign

the note by fraudulent representations or concealment of the true facts. There was evidence tending to show that the intestate asked James. M. Bean to give a note with Patterson as surety; that Bean refused to do so, and refused to ask Patterson to sign it, and agreed only to give a note with his brother, Charles C. Bean, as surety; that the intestate, immediately upon receiving the note, proceeded to obtain not only Charles C. Bean's signature, but also Patterson's signature; that he did so in the absence of James M. Bean, and without informing Patterson that the principal, Bean, had refused to give a note with him as surety. If the fact was as testified to by the principal, then the effect of obtaining Patterson's signature was to release the principal, and to prevent Patterson, if he was compelled to pay the note, from looking to the principal. It was clearly the intestate's duty, if the principal refused to give a note with Patterson as surety, not to go to Patterson and ask him for his signature, or, if he did so, to disclose fully to Patterson the fact that the principal had refused to give 2 note with him as surety. In our opinion it was not necessary for Patterson to show that he was induced to sign the note by fraudulent representations. It was sufficient, we think, if the intestate, at the time he obtained Patterson's signature, acted in bad faith in concealing from him what he was entitled to know, and what, if he had known, would probably have prevented him from signing the note. We see no error in the ruling of the court upon this point.

5. The plaintiff asked an instruction in these words: "If you find that Charles C. Bean knew, or had been informed that Patterson was to sign the note as surety, and that after having received such knowledge or information he signed said note without objection on his part to Patterson's signing the same, such fact that is the signing of the note with such knowledge, and without objection-will in law amount to a consent on the part of Charles C. Bean that Patterson should sign the note as surety, and said Charles C. Bean is liable thereon." The court refused the instruction and gave an instruction in these words: "The liability of the defendant, Charles C. Bean depends upon the simple question of fact as to whether or not the signature of James Patterson was obtained to the note without said knowledge and consent of Charles C. Bean; and if you find, by a preponderance of credible testimony, that the signature of Patterson was obtained without the knowledge and consent of Charles C. Bean, then said Bean is not liable; but if the evidence fails to establish said alleged fact, then said Charles C. Bean is liable for the amount due on the note." The plaintiff insists that the instruction asked by him is not fully covered by the instruction given. He insists that he was entitled to have the attention of the jury called specifically to the fact that if Charles C. had knowledge that Patterson was to sign the note, and did not object, he must be deemed to have consented to Patterson signing it. Possibly we might conclude that the plaintiff's position is correct if