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upon its circumstances, and claims that Davis was not entitled, by virtue of the capacity in which he was acting, to the benefit of sect. 643, Rev. Stat., and to that end maintains the proposition that, as that section applies only to an "officer appointed under or acting by authority of any revenue law of the United States, or any person acting under or by authority of such officer," it cannot be extended to embrace the case of United States marshals or their deputies or assistants, even when they are engaged in the service of process issued for the arrest of parties accused of violation of the revenue laws of the United States.

A

In our opinion the distinction cannot be maintained. marshal or deputy marshal of the United States is, it is true, not an officer appointed under a revenue law; but when engaged officially in lawful attempts to enforce a revenue law, by the arrest of persons accused of offences against it, he is an officer acting under the authority of that law; for it is that law under which is issued the process, which constitutes his authority for his official action. There is, indeed, the general law, prescribing the nature of his duties, which requires him faithfully to execute all lawful process placed in his hands for that purpose; but when process, issued under a particular law, is lawfully issued to him for service, in executing it, he is acting under the authority of that law, without which the process would not be valid. It is that law which he would be compelled to rely on as his justification if he was sued as a trespasser for executing the process issued for its enforcement. And the protection which the law thus furnishes to the marshal and his deputy, also shields all who lawfully assist him in the performance of his official duty. It is not questioned that Davis was acting in that capacity. It is true, he was a noncommissioned officer in the army, detailed as a guard in aid of the marshal, and acting as one of his posse comitatus; but this was before such service became unlawful by the passage of the fifteenth section of the act of June 18, 1878, c. 263. Sup. Rev. Stat. 361.

The prosecution against Davis was removed into the Circuit Court in strict compliance with the statute. His petition set out the necessary facts showing that the homicide which was

charged against him as a crime took place while he was in discharge of his official duty; it was verified, and certified as required by law. The writ of habeas corpus cum causa, which was issued upon it, was the writ prescribed by the act of Congress in cases of that description, a duplicate of which it requires shall be delivered to the clerk of the State court; and thereupon the statute declares that it shall be the duty of the State court to stay all further proceedings in the cause, and the prosecution, upon delivery of such process, shall be held to be removed to the Circuit Court, and any further proceedings, trial, or judgment therein in the State court shall be void.

When, by virtue of the writ of habeas corpus, the prisoner was taken into the custody of the marshal, the jurisdiction of the Circuit Court of the United States of his person and of the indictment against him was completely vested, and that of the State courts ceased altogether. The recognizance was an incident, and followed the principal case. The obligation to appear was transferred with the cause, and he was no longer bound to answer in the court of original jurisdiction. It would have been unlawful for his bail to have surrendered him to that tribunal. They were consequently discharged from the obligation of the recognizance, so far as it required them to do so, or to answer for the default. There was, consequently, no breach of the bail bond in not appearing in the State court, and all proceedings to forfeit it and render judgment upon it against the sureties were coram non judice and void. The right to proceed upon it at all against him or them passed from the State court with the transfer of its jurisdiction over the person of the prisoner and the indictment against him.

The judgment of the Supreme Court of South Carolina will be accordingly reversed, and the cause remanded with instructions to enter a judgment reversing the judgment of the Circuit Court for the county of Spartanburg, and directing that court to dismiss the proceeding upon the recognizance for want of jurisdiction; and it is

So ordered.

BASKET v. HASSELL.

1. A certificate of deposit in these terms:

"EVANSVILLE NATIONAL BANK,

"EVANSVILLE, IND., Sept. 8, 1875.

"H. M. Chaney has deposited in this bank twenty-three thousand five hundred and fourteen dollars, payable in current funds, to the order of himself, on surrender of this certificate properly indorsed, with interest at the rate of six per cent per annum, if left for six months.

46 $23,514.70.

HENRY REIS, Cashier,"

- may, as a subsisting chose in action, be the subject of a valid gift, if the person therein named indorse and deliver it to the donce, and thus vest in him the whole title and interest therein, or so deliver it, without indorsement, as to divest the donor of all present control and dominion over it, and make an equitable assignment of the fund, which it represents and describes.

2. A donatio mortis causa must, during the life of the donor, take effect as an executed and complete transfer of his possession of the thing and his title thereto, although the right of the donee is subject to be divested by the actual revocation of the donor, o1 by his surviving the apprehended peril, or by his outliving the donee, or by the insufficiency of his estate to pay his debts. If by the terms and condition of the gift it is to take effect only upon the death of the donor, it is not such a donatio, but is available, if at all, as a testamentary disposition. Where, therefore, during his last illness, and when he was in apprehension of death, the person named in the above certificate made thereon the following indorsement :

"Pay to Martin Basket, of Henderson, Ky.; no one else; then not till my death. My life seems to be uncertain. I may live through this spell. Then I will attend to it myself.

"H. M. CHANEY,”

and then delivered it to Basket, and died at his home in Tennessee, Held, that Basket by such indorsement and delivery acquired no title to or interest in the fund.

3. An appeal will not be dismissed by reason of the omission of certain persons who were parties to the suit in the court below, if they have no interest in maintaining or reversing the decree.

APPEAL from the Circuit Court of the United States for the District of Indiana.

This is a bill in equity, filed by Hassell, administrator of Chaney, a citizen of Tennessee, to which, besides Basket, a citizen of Kentucky, The Evansville National Bank, Indiana, Samuel Bayard, its president, and Henry Reis, its cashier, and James W. Shackelford and Robert D. Richardson, attorneys for Basket, citizens of Indiana, were made parties defendant.

The single question in the case was, whether a certain fund, represented by a certificate of deposit, issued by the bank to Chaney in his lifetime, belonged to Basket, who claimed it as a gift from Chaney, and had possession of the certificate, or to Hassell, as Chaney's administrator. Basket asserted his title not only by answer, but by a cross-bill. The final decree ordered that the certificate of deposit be surrendered to Hassell, and that the bank pay to him, as its holder, the amount due thereon. The money was then tendered by the bank, in open court, and the certificate was deposited with the clerk. It was thereupon ordered, Basket having prayed an appeal, that until the expiration of the time allowed for filing a bond on appeal the bank should hold the money as a deposit at four per cent interest, but if a bond be given, that the same be paid to the clerk, and by him loaned to the bank on the same terms. Basket failed to give the bond required for a supersedeas, but afterwards prayed another appeal, which he perfected by giving bond for costs alone. To this appeal Basket and Hassell are the parties respectively, the co-defendants not having appealed, or been cited after severance. On the ground that they are necessary parties, Hassell moves to dismiss the appeal. The fund which gave rise to the controversy was represented by a certificate of deposit, as follows:

"EVANSVILLE NATIONAL BANK,

"EVANSVILLE, IND., Sept. 8, 1875. "H. M. Chaney has deposited in this bank twenty-three thousand five hundred and fourteen 7% dollars, payable in current funds, to the order of himself, on surrender of this certificate properly indorsed, with interest at the rate of 6 per cent. per annum, if left for six months. "$23,514.70.

HENRY REIS, Cashier."

Chaney, being in possession of this certificate at his home in the county of Sumner, State of Tennessee, during his last sickness and in apprehension of death, wrote on the back thereof the following indorsement:

"Pay to Martin Basket, of Henderson, Ky.; no one else; then not till my death. My life seems to be uncertain. I may live through this spell. Then I will attend to it myself.

"H. M. CHANEY."

Chaney then delivered the certificate to Basket, and died, without recovering from that sickness, in January, 1876.

Mr. Philip Phillips and Mr. W. Hallett Phillips for the appellant.

Chaney undoubtedly intended, by the indorsement and delivery of the certificate, that Basket should receive the money evidenced by it. The inquiry then is, whether the words used by him are to be construed by some rigorous rule of law so as to defeat his intention.

This subject of donations causa mortis was at an early period considered by Lord Hardwicke in Ward v. Turner, 2 Ves. Sen. 431, in which he held that an actual delivery was indispensable, and that a delivery to the donee, of receipts for South Sea annuities, was not sufficient to pass the property, though it was strong evidence of the intent. The delivery of the receipt was not a delivery of the thing.

After referring to the ruling, that a promissory note or bill of exchange not payable to bearer or indorsed in blank cannot so take effect, inasmuch as no property therein can pass by the delivery of the instrument, and to the like ruling for like reason, as to receipts for South Sea annuities, Story says: "It may admit of doubt whether the doctrine can now, upon principle, be sustained; for the ground upon which courts of equity now support donationes mortis causa is not that a complete property in the thing must pass by the delivery, but that it must so far pass by the delivery of the instrument as to give a title to the donee to the assistance of a court of equity to make the donation complete. The doctrine no longer prevails, that where a delivery will not execute a complete gift inter vivos, it cannot create a donatio mortis causa, because it would not prevent the property from vesting in the executor; and that as a court of equity will not, inter vivos, compel a party to complete his gift, so it will not compel the executor to complete the gift of his testator. On the contrary, the doctrine now established by the highest authorities is, that courts of equity do not consider the interest as completely vested in the donee, but treat the delivery of the instrument as executing a trust for the donee to be enforced in equity." Story's Eq. Jur., sect. 607, p. 618.

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