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an objection to its jurisdiction, and wrongly

decided the question.

We seem also to have heard, that consent

of parties cannot invest any court with juris-
diction when the subject-matter of an action
does not come therein. We doubt whether the
new justice has made a very happy beginning
of his judicial career. In the case Justice
Hughes considered the circuit court no more
had jurisdiction because it thought it had, than
Dr. Cook was at the pole, because he thought
he was, if he did so think.

LAW-ADMISSIBILITY

EVIDENCE OF OTHER CRIMINAL ACTS.-

English law journals are much exercised over

the recent decision of the Court of Criminal

Appeal in Rex v. Ball (Weekly Notes 1910, p.

233.)

This case came before the Court of Criminal

Appeal as an appeal from the conviction of

a brother and sister for an offense under the

recent Punishment of Incest Act, 1908. The

dates of the unlawful carnal knowledge were

laid as "on a date between the 1st and 14th

of July, 1910, and on the 20th of September,

1910." Evidence was given of the appellants

having lived together at these dates and hav-

ing with them a child of about two and a half

years old.

Further evidence was then ten-

dered, and after objection admitted, to the

effect that in November, 1907, the appellants

had moved to a house and lived there as a

married couple for sixteen months, and that

in March, 1908, a child was born and was

registered as their child. The appellants

were convicted, and now appealed on the

ground that the evidence objected to was in-

admissible. The Court of Criminal Appeal held

that the evidence was not admissible and

quashed the conviction.

The decisions of our own courts have been

equally confusing, and we believe the recent

declarations of the two well considered cases

cited above will greatly assist the courts of

our own country in arriving at a right conclu.

sion in each case.

The question in every case is not-Does the

evidence of other crimes go to show that the

defendant committed the crime charged. If

that is all it tends to prove, it is inadmissible.

If, however, the evidence of the commission of

other criminal acts tends to prove a collateral

fact, which fact being established tends to

prove the commission of the crime charged,

then the proof of such other offense is admis-

sible, in the language of Lord Alverstone,

not because, but notwithstanding it proves

The question, if a difficult one, should be

turned around and viewed negatively. Does
the offer of evidence of other crimes tend to
prove merely that the defendant was a bad
Does it merely fasten on him a repu-
tation as a "dangerous character" or as hav-
ing a quick temper, or as being free with fire
arms, or as being a "lewd fellow," or as being
a "tough character," from whom something like
that should be expected. If this is all it tends
to prove, it should promptly be rejected. A
defendant should not have the burden of dis-
proving crimes of which he is not charged or
embarrassed by the hauling out of old skele-
tons long since buried.

If, however, the evidence of other crimes
proves more than that just indicated, the fur-
ther question should be asked: "What fact
does such proof establish, other than the mere
commission of the act, and is such fact thus
proven relevant to prove the offense charged?"
Of the many English decisions cited by our
London contemporaries on the question of the
admissibility of evidence of criminal acts oth-
er than those alleged in the indictment, two-
the most recent-may be cited, i. e., Rex v.
Wyatt (1904, 1 K. B. 188) and Rex v. Fisher
(1910, 1 K. B. 149). In the first mentioned
(a decision of the Court for Crown Cases Re-
served) evidence of other criminal acts was
held to have been rightly admitted; in the
latter (a decision of the Court of Criminal
Appeal) the evidence was held to be inadmis-
sible. In Rex v. Wyatt, Lord Alverstone quot-
ed from the Privy Council's judgment in Mak-
in v. Attorney-General (supra) the following
passage: "It is undoubtedly not competent for
the prosecution to adduce evidence tending to
show that the accused has been guilty of crim-
inal acts other than those covered by the in-
dictment, for the purpose of leading to the
conclusion that the accused is a person likely,

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The Solicitors' Journal (London) speaking
of the above quotations has this to say:
"These two passages place the principle gov-
erning the admissibility of this kind of evi-
dence in a very clear light, and on the prin-
ciple as thus laid down it seems justifiable to
entertain grave doubts as to the correctness of
the decision in Rex v. Ball. The point is cer-
tainly sufficiently doubtful, and sufficiently
important, for a further review by the House
of Lords, if that is now possible."

One guilty of criminal contempt of a

federal court may be removed for the pur-

pose of trial and punishment from any

district in which he may be found, to the

district in which he has committed the con-

tempt; but there can be no such removal

for the purpose of merely enforcing obedi-

ence to the court's order in a civil proceed-

ing.

It is indeed remarkable that at this late

day there should still be doubt and obscur-
ity as to what kinds of contempt consti-
tute crimes against the United States un-
der Sec. 1014 of Revised Statutes, so as
to allow those guilty to be removed from
one district to another, and also that the
authorities should be so meager as to the
methods of apprehending such persons and
the procedure generally in such cases.

The first thing to be considered in deal-
ing with this question is what are the class-
es into which contempts are divided and
what are the reasons and causes of these
divisions.

Contempts are of two kinds, criminal and
civil, and with reference to this distinction
the court in the case of In re Nevitt,' aptly
expresses itself as follows: "The former
(criminal) are conducted to preserve the
power and vindicate the dignity of the
courts and to punish for disobedience of
their orders. The latter (civil) are insti-
tuted to protect, preserve and enforce the
rights of private parties, and to compel
obedience of the orders, judgments and de-
crees of the courts made to enforce the
rights and remedies to which the courts
have decided that such parties are lawfully
entitled."

It may be further said that all contempts
which involve purely the question of pun-
ishment for some disobedience to an order
or some indignity or slight put upon a
court as distinguished from a mere im-
prisonment to enforce obedience to an or-
der in a civil case, are criminal, whereas, a
civil contempt consists only of refusal by
a person to do an act which the court has
ordered him to do for the benefit of a party
in a suit pending before it, and if he is
committed until he complies with the order
such commitment is in the nature of an
execution to enforce the judgment of the
court. The final test seems to be, who is
the real party interested in the contempt
proceeding; to whose advantage will it
most redound? If it is solely to maintain
the dignity and the power of the state
and its courts, the contempt is criminal in
its nature. But if some private party is
primarily interested in its outcome, as when
the defendant in an injunction suit is im-
prisoned until he obeys the order of court,
then the contempt is civil.2

The power of the national courts to pun-
ish for contempt and to compel obedience
of their orders is derived from Section 1,

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Article 3, of the Constitution, which pro-
vides that "the judicial power of the United
States shall be vested in one supreme court
and in such inferior courts as the congress
may from time to time ordain and estab-
lish." In order that there shall be no
misunderstanding or misconstruction of
this provision, congress has passed an act,
Sec. 725 of Revised Statutes, which spe-
cifically confers the power upon the fed-
eral courts to punish contempt of their
authority and restricts such power to cer-
tain classes of cases.

It is axiomatic and is a canon of the
common law that only the court whose or-
der is disobeyed can punish for the con-
tempt. The fact that this is the case im-
mediately opens up the complex question
of removal or extradition; in the state
courts from one state to another, and in the
federal courts from one federal district to
another federal district.

Perhaps nothing in federal procedure is
more uncertain or more shrouded in ob-
scurity than the question of removal for
contempt of court. In fact the authorities
on this and ancillary propositions are so
few and indecisive that it can hardly be
said that anything except the main prin-
ciple that there is removal for criminal
contempt, can be regarded as well settled.
The whole authority for such removal is
conferred by Sec. 1014, of Revised Stat-
utes, which provides that "for any crime.
or offense against the United States" the
offender may, by any judge of the United
States, be arrested and imprisoned, or

bailed "for trial before such court of the
United States, as by law has cognizance
of the offense." And it further provides
that "when any offender or witness is com-
mitted in any district other than that where
the offense is to be tried, it shall be the
duty of the district judge of the district.
where such offender or witness is impris-
oned, seasonably to issue, and the marshal

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to execute, a warrant for his removal to
the district where the trial is to be had."
At a glance this may seem comparatively
simple as to the method of apprehension
and removal, but a close study of the few
adjudged cases will reveal considerable
vagueness and uncertainty.

That a criminal contempt is an offense
against the United States under Section
1014 of Revised Statutes, supra, has been
repeatedly held. It has also been held
that a person cannot be removed under
Section 1014 for any other purpose than
trial.

The first proposition with regard to re-
moval for contempt of court and the one
which seems to be conclusively settled, al-
though the decided cases are few, is that,
one guilty of criminal contempt may be
brought from another district and pun-
ished. In the early case of Fanshawe v.
Tracy, the court without laying down any
rule to be followed, says: "I do not see
why, if a man is imprisoned for a contempt
of a court of the United States, and breaks
jail and escapes into another state, he can-
not be arrested and returned to his im-
prisonment under the authority of the
United States." Of course, this is not de-
cisive of anything, and only goes to prove
how unsettled the procedure in this regard
was at that time. The strongest case yet
decided is that of In re Ellerbe," in which
the contempt consisted of refusal to obey a
subpoena. It was there held that when
such witness, after failing to obey the sub-
poena, which had been duly served upon

(5) Aaron v. U. S., 155 Fed. 833; in re Chris-
tian, 82 Fed. 888; American Co. v. Jacksonville
Ry.. 52 Fed. 937; in re Beshears, 79 Fed. 70;
Fischer v. Hayes, 6 Fed. 63; United States ex
rel. Southern Express Co. v. Memphis & Little
Rock R. R. Co., 6 Fed. 237.

(6) In re Ellerbe, 13 Fed. 530; in re Acker,
66 Fed. 290; Castner v. Pocahontas Co., 117
Fed. 184.

(7) In re Graves, 29 Fed. 60; in re Christian,
82 Fed. 888; Horner v. United States, 143 U. S.
207, 36 L. Ed. 126; Rose on Federal Procedure,
Sec. 1537.

(8) 4 Biss. 497, Fed. Cas. No. 4643.

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him, had been ordered arrested by the
court of which he was in contempt, but had
fled into another district, he could be ar-
rested and removed by order of any judge
having jurisdiction in the district where
he might be found.

The only other decision holding directly.
on this point is that of In re Manning,1o
which declares that an officer of a court
may be brought from another district and
punished for contempt.

In the above authorities the question of
criminal contempt is alone involved, and
it yet remains to be seen what has been
held to be the rule in similar circumstances
when the contempt is civil. The lone case
so far decided on this point is that of In
re Graves.11 This was a case in which a
defendant refused to obey a money decree
and fled the district. Thereupon removal
proceedings were instituted and the court
of the district in which he had sought sanc-
tuary declined to order his removal, assign-
ing as a reason that this was civil and not
criminal contempt. The court at some
length distinguishes the two kinds of con-
tempt and the difference between this case
and In re Ellerbe, supra, holding that the
latter is purely punitive, while the former
is remedial, executive and for the advan-
tage of a private party. The court bases
its refusal on the ground that removal un-
der Section 1014 must be for purpose of
trial and not to enforce an order already
made, which would be aiding the prevail-
ing party in the civil suit in his effort to
coerce the loser into obeying the order
made for the payment of money. But on
the other hand, if in this very case the ob-
ject of the contempt proceeding was to
punish for willful disobedience of the de-
cree and not to imprison and compel obedi-
ence, we would have an instance of crim-
inal contempt and the offender could be pro-
ceeded against criminally; "in which case
he is charged with the offense, and, being
put upon trial, he may be convicted, and be
punished by fine or imprisonment or both.
In the latter case, the punishment is for

(10) 44 Fed. 275.
(11)

29 Fed. 60.

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A judgment in personam in a court of a foreign country, while constituting a good cause of action in a domestic court, does not merge the original cause of action or extinguish the original contract debt, and is therefore no bar to an action thereon in a domestic court, unless it has been paid or satisfied.

In Error to the Circuit Court of the United States for the Northern Division of the Western District of Washington.

Action by Lester W. David against Edward F. Swift and others. Judgment for plaintiff, and defendants bring error. Affirmed.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District Judge.

GILBERT, Circuit Judge: In September, 1908, the defendant in error brought an action in a state court of the state of Washington against the plaintiffs in error to recover the sum of $77,500 on a contract of sale of certain shares of stock in a corporation of British Columbia. The cause was removed to the United States Circuit Court for the Western District of Washington on the ground of diversity of citizenship. In that court a supplemental complaint was filed, to which an answer was made, in which the plaintiffs in error set up a counterclaim for $244,291.79, and on September 27, 1909, a reply was filed. After the issues had been made up and the cause assigned for trial, the plaintiffs in error filed a motion to dismiss their counterclaim without prejudice. The motion was allowed, and on the same day the plaintiffs in error asked leave of the court to file a proposed supplemental answer, in which they alleged that prior to the commencement of that action they, as plaintiffs, had commenced an action against the defendant in error in the Supreme Court of the Province of British Columbia, Dominion of Canada, a court of record of common-law jurisdiction in which they had alleged a cause of action which was identical with their counterclaim in the present action, and that the defendant, in answer thereto, had alleged as a counterclaim thereto

his demand for $77,500 on which he sued in the present action, and that upon issues so framed in that court the cause had been tried and judgment had been rendered on December 4, 1909, in favor of the said defendant in error herein for $77,500, and dismissing the complaint of the plaintiffs in that action; that thereafter, on December 6, 1909, the plaintiffs in said action took their appeal to the Court of Appeal of British Columbia from so much of said judgment as dismissed their complaint, but that no appeal was taken from the judgment so rendered in favor of the defendant in error on his counterclaim therein; and that subsequently, on the demand of said defendant in error, they gave security to the satisfaction of the registrar for the payment of said judgment in all respects, which security was approved and accepted by the defendant in error, and is now in full force and effect, and in said proposed supplemental answer, the plaintiffs in error prayed that no further proceedings be had or taken in the action, and that the complaint be dismissed. The court denied the application for leave to file the supplemental answer, and thereafter the cause was tried on January 6, 1910, and judgment was rendered in favor of the defendant in error and against the plaintiffs in error for the sum of $86,798.62.

The plaintiffs in error rely upon the assignment that the trial court erred in denying their application for leave to file the supplemental answer, and they contend that the judg ment of the court of Canada, which the defendant in error secured upon the same cause of action which he alleged in the present case, should have been held a bar to the further prosecution of the latter action, and that the undertaking given to secure the judgment of the Canadian court should be held equivalent to the payment and satisfaction thereof. A judgment in personam in a court of a foreign country, while it constitutes a good cause of action in a domestic court, does not merge the original cause of action or extinguish the original contract debt, and it is no bar to an action thereon in a domestic court unless it has been paid or satisfied. Australasia Bank v. Nias, 16 Q. B. 717; Trevelyan v. Myers, 26 Ont. 430; New York, L. E. & W. R. Co. v. McHenry (C. C.) 17 Fed. 414; Wood v. Gamble, 11 Cush. (Mass.) 8, 59 Am. Dec. 135; Eastern Townships Bank v. Beebe, 53 Vt. 177, 38 Am. Rep. 665; The Propeller East, 9 Ben. 76, Fed. Cas. No. 4,251; Lyman v. Brown, 2 Curt. 559, Fed. Cas. No. 8,627. In the case last cited Judge Curtis, after referring to the fact that there is some uncertainty concerning some of the ef fects and force of a foreign judgment, said:

"But there is none as to this particular. It does not operate as a merger of the original

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