trial upon a criminal charge. If the warrant of removal is 1 be issued mechanically, and as a mere ministerial act, there is no reason why the commiting magistrate should not have been required to issue it at once, upon neglect or refusal to give bail. The necessary implication, from the method of procedure adopted by the statutes, is that the "judge of the district," whether it be the district judge or some other, as is intimated in Re Bailey, 1 Woolw. 422, it may be, must judicially determine whether the prisoner shall be taken to another district for trial, and that he may refuse his warrant where it appears that the removal should not be made, or where he would admit the party to bail. Doubtless the action of the committing magistrate is prima facie sufficient as a basis. for the warrant, but it is not conclusive; and while the judge. should not unnecessarily require another or further preliminary examination, if it appear to him necessary that the bail should be reduced, or that for any reason the prisoner should again be heard in defence, I have no doubt that it is Lis duty to pass fully upon the case, and determine for himself whether he should be further held or removed. These views are abundantly supported by the authorities. Conk. Tr. (4th Ed.) 582; Murray, U. S. Courts, 29; Re Buell, 3 Dill. 116, at p. 120; U. S. v. Jacobi, 14 Int. Rev. Rec. 45; U. S. v. Pope, 24 Int. Rev. Rec. 29; U. S. v. Volz, 14 Blatchf. 15; U. S. v. Haskins, 3 Sawy. 262; Re Alexander, 1 Low. 530; U. S. v. Shepard, 1 Abb. 431; Re Doig, 4 FED. REP. 193; and cases cited in these opinions. In some of the cases. there was a writ of habeas corpus, and in some the original examination was before the district judge, and in one the question arose in the district to which the removal was made, on a motion to quash the indictment; but in none of them does it seem to have been treated as a matter of much importance by what form of procedure the action of the judge is invoked, and in none is it denied that he may determine for himself whether the removal is proper. In Buell's Case, supra, there was both a habeas corpus and an application for a warrant of removal, which latter was refused. In the case of U. S. v. Somerville, related in Volz's Case, supra, it seems

that the district judge himself took the bail-bond after a commitment by the commissioner, and the question there was whether the commissioner had a continuing power after commitment to take bail, it being held that he did. But no one seems to have suggested that the judge had not the power to do what he did.

Without further examination here of the cases, it is sufficient to say that, while I do not find one holding that the judge may, on the application for the removal warrant, inquire into the facts, or reduce the bail, I have no doubt it is a proper practice. In some cases it may be necessary to issue a habeas corpus and certiorari, in order to bring before him the entire record of the evidence before the committing magistrate; or, technically, it may be that the judge could not discharge the prisoner without a habeas corpus, while he might refuse his warrant of removal, leaving him where the commitment had placed him, until application for habeas corpus should be made. But my judgment is that, having the prisoner before him, with the plenary power conferred by the statute to grant or refuse the warrant of removal, and the only object and purpose of the commitment being to take his judgment whether there shall be removal, the power to discharge exists without any habeas corpus, and is necessarily implied from the statute. In the case of U. S. v. Lawrence, 4 Cranch, 518, it is said that "to require larger bail than the prisoner could give would be to require excessive bail, and to deny bail in a case clearly bailable by law." The discretion of the magistrate, in taking bail, is to be guided by the compound consideration of the ability of the prisoner to give bail and the atrocity of the offence. It is a rule of our courts in this district to require $2,000 in cases like this, though it is very frequently increased under special circumstances. As this is a case for trial in another district, that circumstance should perhaps increase the amount somewhat, but I think $2,500, under the circumstances here, as much as should be required of this prisoner, and any larger amount would be excessive. I shall, therefore, discharge him on giving bail. before me in that sum.

Telegrams from the district attorney at St. Louis say the court is now in session, with a jury in attendance to be dis-, charged in a few days, and the question is whether the prisoner shall be bound to appear at this present term, and immediately, or at the next term of the court. The cases we have been considering indicate that the proceeding on the preliminary examination is in accordance with the usages of law in the district where the arrest is made, and this seems to be a plain requirement of the statute. Rev. St. § 1014, et seq. The Tennesse Code directs that bail, when not taken in open court, shall be given by a written undertaking, signed by the defendant and at least two sufficient sureties, requiring the defendant to appear "at the next term of the court," while, when given in open court, it is to appear "at the present term." T. & S. Code, §§ 5152, 5153, 5154. It is generally understood that the federal courts, in this matter of bail, are governed by the state statutes. U. S. v. Evans, 12 Chi. Leg. News, 271; S. C. 2 FED. REP. 147, 150, and cases there cited. I readily see how this requirement might greatly delay trials, and that it may be sometimes impracticable to adhere strictly to the statutes of the states. And, like the acts of congress adopting the practice of the states in suits at law, it may go no further than to adopt the state statutes "as near as may be." Rev. St. § 914. Whether the committing magistrate, therefore, may disregard this requirement of the state statute in a proper case, and take the bond demanding an appearance at some other time than the next. term, I shall not now decide, because I see in this case no special reason for departing from the ordinary practice, and have determined to allow this defendant to give bond to the next term of the court at St. Louis, as the commissioner did. I shall not interfere with his action further than to reduce the amount of bail, as before indicated. The prisoner will be allowed a few days to communicate with his friends, who live some distance, and in the mean time will remain in the custody of the marshal, with leave to the district attorney to make a further application for a removal warrant, if bail be not furnished. So ordered.

MILLER and others v. THE LIGGETT & MYERS TOBACCO Co.

(Circuit Court, E. D. Missouri. January 31, 1881.)

1. ESTOPPEL-JUDGMENT.

A party is bound by an adjudication where he has all the ordinary rights of a litigant with respect to such adjudication.

2. SAME-SAME.

A party who contributes money for the purpose of employing counsel, and carrying on a litigation, under a contract with a party to the record, has the right to take such action in the case as will protect his interests in such litigation.

3. SAME-SAME-PRACTICE.

The validity of a patent having been in part sustained in one circuit, suit was brought in another circuit for infringement by a party who had contributed to the payment of the counsel who had defended the first suit. Held, that the defendant was estopped by the adjudication in the other circuit, but that the court would not enter any decree based upon that opinion, until the conclusion of the litigation in such other circuit.

4. PRACTICE-PRIOR USE.

Evidence of prior use having been introduced in the latter suit, held, that the proper way to proceed would be by motion for a rehearing in the other circuit.—[ED.

In Equity.

A suit having been brought against Foree & Co., tobacco manufacturer, at Louisville, for infringing the Miller & Worley patent, re-issue No. 8060, for "finishing tobacco plugs," said patent having two claims-one for the process and one for the product-these defendants, with some dozen other tobacco manufacturers, issued a circular to their customers promising to protect them against any suit Miller & Worley might bring against them for dealing in the subscriber's tobacco. It further appeared that the above defendants contributed to the payment of counsel who defended the Foree case, but in all other respects were entirely independent of, and had no connection whatever with, Foree & Co. The evidence showed also that their process was in many essentials different from that practiced by Foree & Co. The product claim was held void. Much new evidence, as antici

pating the process, was introduced in this case by both sides, and the case set down for final hearing.

Stem & Peck, Beattie & Winchester, and George Harding, for complainants.

Samuel S. Boyd, for defendant.

MCCRARY, C. J. We have considered the case of Miller v. The Liggett & Myers Tobacco Co. so far as the question of estoppel is concerned. The suit is brought to determine the validity of certain letters patent belonging to these plaintiffs. The same question was involved in the case of Miller v. Foree, tried in the district of Kentucky, in which there was a decree sustaining the validity of the patent in so far as the first claim is concerned, and, as the patentee has waived anything beyond that claim, that decree sustains the claim of the validity of the patent, so far as it is involved in this litigation. The Liggett & Myers Tobacco Company was not a party to the record in that case, and the question is whether it was privy to that proceeding, in such a sense as to be bound by it and estopped by the decree. The rule upon the subject of estoppel is, of course, well understood by counsel. It is, to state it generally, that parties and privies are concluded by the judgment. But I am of the opinion that a person, to be concluded by a judgment, must be privy to the proceeding in such a sense that he may control the litigation in so far as making motions in the case, offering evidence, cross-examining witnesses, or taking an appeal is concerned; that is, it is not reasonable to say that a man shall be bound by an adjudication, unless he has all the ordinary rights of a litigant with respect to the adjudication.

The question, therefore, is whether it appears, from the proof before us in this case, that the Liggett & Myers Tobacco Company had the authority to control that litigation, within the sense of the rule as I have explained it, and also whether they have now the right to go into that court, and, if the time is not out, move for a rehearing, or for an appeal, if there has been a final decree, and, if there has not been a final decree, whether they have the right, when one is rendered, to appear there and take an appeal. I think that a