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and in others it seems to have been considered as open to investigation as an original question. In Hyatt v. Corkran, 188 U. S. 691, 23 Sup. Ct. Rep. 546, 47 L. ed. 657, it was shown by stipulations upon the record itself that the accused was not in the demanding state at the time of the alleged commission of 717 the crime charged, and it was held in that case that, when the facts from which it must follow that the accused is not a fugitive from justice "are proved so that there is no dispute in regard to them," the accused must be discharged. In the opinion this language is used: "If upon a question of fact, made before the governor, which he ought to decide, there were evidence pro and con, the courts might not be justified in reviewing the decision of the governor upon such question. In a case like that, where there was some evidence sustaining the finding, the courts might regard the decision of the governor as conclusive."

In Bruce v. Rayner, 124 Fed. 481, 62 C. C. A. 501, it was Isaid by the circuit court of appeals of the fourth circuit: "If conflicting evidence has been submitted to the governor of the state in which the person is found upon the question of fact, and he, considering it, had decided to deliver the person demanded, the presumption being always in favor of the governor's decision, the courts will not inquire into and reverse his decision."

And to support this proposition the above language from Hyatt v. Corkran, 188 U. S. 691, 23 Sup. Ct. Rep. 546, 47 L. ed. 657, was quoted by the court. These are the latest expressions of the federal court upon this question that have been brought to our attention. There can be no doubt that this record shows that the question whether the accused was a fugitive from justice was before the governor; that there was sufficient evidence before him to make it appear, at least prima facie, that the accused was a fugitive from justice. Under the rule established by the federal courts in the above cases, this was sufficient to justify the remanding of the relator, unless it appeared from the record itself that he was not a fugitive from justice, or was made to appear by such clear and invincible proof that it can be said from the whole evidence that there was no dispute before the governor in regard to the fact. If the facts from which it is to be determined whether the accused is a fugitive from justice are established by the record, or if they are so established by proof 718 that it may be fairly said that there is no dispute in re

gard to them, then the question would become a question of law to be determined by the court upon the habeas corpus proceedings, but if it appear that there was evidence before the governor that was substantially conflicting in regard to the facts upon which this question is to be determined, the responsibility of determining the question rests with the gov

ernor.

The relator undertook to prove that he was not in the state of Iowa at the alleged time of the offense charged against him. There is no doubt of the competency of this proof, nor that, if this fact was conclusively shown upon the record, or was so proved that it could be said that there was no substantial dispute in regard to it, it would require the discharge of the accused. To establish this proposition, the relator himself testified that he was in Omaha, Nebraska, from the end of October, 1892, down to the first of January, 1893; that on the night of November 4th he stayed at the Arcade Hotel, in Omaha, and that he was not at any time during the period from that time to the first of January following in the state of Iowa. He produced several witnesses who corroborated him in these statements. Although the occurrence was some twelve years before this hearing, these witnesses testified that their attention had been particularly called to the facts at the time, and their testimony was positive that he was not out of the city of Omaha during that time. There are circumstances tending, at least in some degree, to discredit this testimony, and even though there were not, the statements of these witnesses are contradicted by other evidence; and without going into a detailed statement of the evidence that was adduced upon this point, it is sufficient to say that the testimony of these witnesses is not of such a character, in view of the other evidence in the record, as to enable us to say that the matter was established beyond dispute. It seems clear, therefore, that the evidence upon the hearing in the district court, which is conceded to be competent, shows that all questions of fact necessary 719 to a determination of the matter were fairly controverted before the governor. That being the case, the rule now established by the federal courts precludes the courts from reviewing those questions upon habeas corpus proceedings. The great delay in beginning the proceedings for extradition, and all facts bearing upon the question whether the accused is a fugitive from justice, would be duly considered by the governor.

Objection was made to the cross-examination of the relator, and it seems that upon this cross-examination matters were inquired into that had no relevancy to the questions being investigated; but, from the view that we take of the effect of the competent evidence in this case, and considering that the evidence was to be weighed by the court itself, we cannot see that any prejudicial error against the relator was committed.

The judgment of the district court was the only one possible upon the evidence before it, and is affirmed.

The Principal Case was affirmed by the supreme court of the United States in Dennison v. Christian, 196 U. S. 637, 25 Sup. Ct. Rep. 797, 49 L. ed. 630. That court, however, delivered merely a memorandum opinion. For an extended discussion of extradition proceedings, see the recent note to Farrell v. Hawley, 112 Am. St. Rep. 103.

ECCLES v. UNITED STATES FIDELITY AND GUAR

ANTY COMPANY.

[72 Neb. 734, 101 N. W. 1023.]

A SURETY on an Official Bond is Liable for a statutory penalty incurred by his principal in taking illegal fees. (p. 831.)

A. Hardy, for the plaintiff in error.

Hazlett & Jack, for the defendant in error.

734 AMES, C. Defendant in error signed, as surety, the official bond of one W. H. Walker as a justice of the peace. This action was brought upon the bond against Walker and his surety 735 to recover the statutory penalty of fifty dollars for an alleged receipt by the former of illegal fees in his official capacity. The defendants answered separately, and there was a trial and verdict for the plaintiff. Upon motion the court set aside the verdict and granted a new trial as to the surety, but denied a like motion by Walker. Afterward the court sustained a motion by the surety to dismiss the action as to it, on the ground that the petition does not state facts sufficient to constitute a cause of action against it. From the judgment of dismissal the plaintiff prosecutes er

ror.

It is not disputed that the defendant in error was lawfully obligated as surety upon the official bond of Walker, which it was doubtless capable of becoming by estoppel, if not otherwise; and the sole question properly presented for decision is whether a surety upon an official bond is liable for a statutory penalty incurred by his principal by taking illegal fees. We think the answer should be in the affirmative. It was so decided by this court in Kane v. Union Pac. R. Co., 5 Neb. 105, and again in Phoenix Ins. Co. v. MeEvony, 52 Neb. 566, 72 N. W. 956. We do not see how it can be held otherwise than that the justice committed the offense complained of by virtue of his office. He collected a gross sum as his taxable costs or fees in a suit before him, and the illegal charge was an item contributing to that amount, so that the act was an inseparable part of his official conduct, and the statute denouncing the penalty treats the taking of illegal or extortionate fees, in terms, as an official act: Comp. Stats. 1903 (Annotated Statutes, 9060), c. 28, sec. 34. Counsel for defendant in error are mistaken in supposing that Snyder v. Gross, 69 Neb. 340, 95 N. W. 636, and State v. Porter, 69 Neb. 203, 95 N. W. 769, are in conflict with the foregoing. The former of these latter cases was an instance in which it was attempted to hold the sureties of a justice of the peace liable for an act entirely foreign to any duty enjoined upon him in connection with his office, and in the latter of them it was sought to recover fees received for services not attempted to be required of the Secretary of State, but of the person who happened to hold 736 that office as a supposed member of an unconstitutionally and illegally constituted official board of commission. He certainly did not receive them by virtue of his office as Secretary of State, and, in the opinion of the writer, the decision goes to the farthest limit of linguistic propriety in saving that they were taken by color of that office. They were taken under color of the void statute.

We are of opinion, therefore, that the judgment of the district court dismissing the action as to the defendant in error is erroneous, and recommend that it be reversed and a new trial granted.

Oldham, C., concurs.

Letton, C., not sitting.

By the COURT. For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court dismissing the action as to the defendant in error be reversed and a new trial granted.

For Authorities upon the question adjudicated in the principal case, see the note to Feller v. Gates, 91 Am. St. Rep. 528, on the acts for which sureties on official bonds are liable.

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