petitioner remanded to the custody of the | petent for the Legislature to provide that jailor in execution of sentence.

Argued before SAVAGE, C. J., and KING, BIRD, HALEY, HANSON, PHILBROOK, and MADIGAN, JJ.

Edward P. Murray and Terence B. Towle, both of Bangor, for petitioner. William B. Peirce, Co. Atty., and Charles J. Hutchings, both of Bangor, for defendant.

when one has been convicted of a misdemean-
or, has been sentenced to imprisonment by
an inferior court, has appealed, and has
defaulted in the appellate court, the sen-
tence may be affirmed by the latter court,
in his absence.
constitutional guaranty, and we know of no
reason why it is not within legislative power.
[3] The petitioner's contention is that the
appellate court in this case by affirming the
sentence below and imposing additional
costs, virtually imposed a new sentence,
that if the petitioner failed to pay the addi-
tional costs, as well as the original fine and
costs, he was subject to additional imprison-
ment for at least 30 days (R. S. c. 136, § 12),

Such a statute violates no

SAVAGE, C. J. Petition for writ of habeas corpus. The cause comes before this court on report. The facts are these: The defendant was convicted in the Bangor municipal court on two search and seizure processes, under section 49 of chapter 29 of the Revised Statutes, which chapter is the pro-and that such a sentence could not lawfully hibitory liquor statute. On each process he was sentenced to pay a fine and costs, and to be imprisoned 60 days in the county jail. He appealed on each, and gave bail for his appearance at the next term of the Supreme Judicial Court. He did not appear at that term, but was defaulted; and in each case the judgment of the court below was affirmed, with additional costs, amounting to $3.30, in his absence. After the adjournment of the term, the clerk issued mittimuses upon the affirmed judgments, as of course, without special order, and the petitioner was arrested thereon by the sheriff's deputy, and committed to jail in execution of the sentences. From this imprisonment he seeks to be released on habeas corpus.

[1] The affirmation of the sentences was made by virtue of Revised Statutes, c. 29, § 63, which provides that in appeals in cases of violation of the liquor law, "if a claimant or other respondent fails to appear for trial in the appellate court, the judgment of the court below, if against him, shall be affirmed." The word "judgment" in this statute refers not only to the adjudication of guilt, but also to the sentence imposed, the entire judgment. Such appears to have been the intent of the Legislature, and such has been the construction placed upon it in all

cases.

Each mittimus contained an order to the officer "to take the body" of the petitioner and commit him to jail.

The petitioner contends: (1) That since the petitioner was not in court at the time of the affirmation of sentence, the court had no jurisdiction over him to impose the payment of costs as a part of the sentence in addition to the original sentence; (2) that the clerk without special direction of the court had no authority to issue a mittimus by which the petitioner could be taken wherever he might be found, as well as in court.

[2] By the common law, when imprisonment is to be inflicted as a punishment, it is absolutely necessary that the respondent be personally present. 1 Bishop on Criminal Procedure, § 275. But it is not claimed by

be imposed in the absence of the petitioner. In this case it is not very material whether the additional detention for nonpayment of the fine is a punishment or not, for certainly the penalty was increased by the amount of the additional costs. Some courts have held that the detention is not a punishment, but only a mode of enforcing the fine. Son v. People, 12 Wend. (N. Y.) 344; People v. Markham, 7 Cal. 208.

We will examine first the authority of the appellate court to impose the additional costs. The statute in terms merely authorizes the court to affirm the judgment below. It is silent on the matter of costs. By R. S. c. 136, § 1, it is expressly provided that for violations of section 49 of chapter 29 the convict shall be sentenced to pay costs, and this was the section violated by the petitioner. But in the lower court this provision was complied with. He was sentenced to pay costs. And the affirmance of that sentence likewise condemned him to pay those costs. So that if section 1 of chapter 136 applies to proceedings under section 63 of chapter 29, it was complied with. reference to R. S. c. 133, § 18, will, we think, throw some light on the question of legislative intention. That section relates to appeals in general from magistrates.

says:

A

It

"If the appellant does not appear and prosecute his appeal, his default shall be noted on the record; and the court may * * issue a capias against the body of the appellant, bring him into court, and then affirm the sentence of the magistrate with additional costs."

The distinction between the two statutes seems to be marked. In the one the respondent must be brought into court before the sentence is affirmed with additional costs. In the other, the sentence can be affirmed in the absence of the respondent, but the statute is silent as to costs. We think this distinction in language should be observed in construction, and that it should be held that the statute (R. S. c. 29, § 63) authorizing the appellate court to affirm a sentence did not authorize it to add to it or in any way change it.

does not require affirmation of sentence. If the appellate court is of opinion that the sentence below should be modified, increased, or lessened, it can issue capias, have the respondent brought before it, and impose such sentence as the law authorizes and justice requires. In this case, the appellant was not brought into court, but, notwithstanding, the sentence was increased by the amount of the costs. To that extent, we think the appellate court exceeded its authority.

[4] But it by no means follows that the petitioner is entitled to be discharged on habeas corpus. This was not, as the petitioner claims, the imposition of a new sentence. The old sentence was affirmed, and was right. The addition was unauthorized, and wrong. The two are severable. The unauthorized part may be void, and at the same time the authorized part in force.

[5, 6] The granting or refusing the writ in this case is discretionary. O'Malia v. Wentworth, 65 Me. 129. "Persons convicted, or in execution upon legal process, criminal or civil," are not entitled of right to have the writ of habeas corpus. R. S. c. 101, § 5. But it is a discretion to be exercised according to settled legal principles, so far as they apply. And one principle is that if the judgment is void, as for want of jurisdiction, the prisoner is entitled to his discharge, but not if it is merely erroneous. See In re Fanton, 55 Neb. 703, 76 N. W. 447, and cases cited in note to same case in 70 Am. St. Rep. 418; Re Taylor, 7 S. D. 382, 64 N. W. 253, 45 L. R. A. 136, note, 58 Am. St. Rep. 843.

[7] Though there is some conflict in the cases, the very great weight of authority is to the effect that a sentence which imposes a punishment in excess of the power of the court to impose it is not necessarily void in toto, but is valid, when severable, to the extent that the court had power to impose it, although void as to the excess. Mr. Church in his work on Habeas Corpus says:

"A judgment is not void because an excessive punishment has been imposed, except as to the excess." Section 370.

And again in section 373:

"The prevailing rule is that an excessive sentence is merely erroneous and voidable; that the whole sentence is not illegal and void because of the excess; that it is not void ab initio; and that it is good on habeas corpus so far as the power of the court extends, and invalid only as to the excess.'

case in 55 Am. St. Rep. 259; In re Graham, 138 U. S. 461, 11 Sup. Ct. 363, 34 L. Ed. 1051; Brooks v. Commonwealth, 4 Leigh (Va.) 669; Feeley's Case, 12 Cush. (Mass.) 598; Sennott's Case, 146 Mass. 489, 16 N. E. 448, 4 Am. St. Rep. 344. In the last-cited case the court said:

"The better rule seems to be, that where a court has jurisdiction of the person, and of sentence in excess of what the law permits is the offense, the imposition by mistake of a within the jurisdiction, and does not render the sentence void, but only voidable by proceedings upon a writ of error."

It is also generally held that when the sentence is for a longer period than prescribed by law the prisoner is not entitled to be discharged on habeas corpus until he has served the prescribed definite term. People v. Markham, supra; Ex parte Mooney, 26 W. Va. 36, 53 Am. Rep. 59; In re Taylor, 7 S. D. 382, 64 N. W. 253, 45 L. R. A. 136, 58 Am. St. Rep. 843; In re Paschal, 56 Kan. 123, 42 Pac. 373; De Bara v. United States, 99 Fed. 942, 40 C. C. A. 194; In re Fanton, supra; People v. Baker, supra; Feeley's Case, supra. In Re Swan, 150 U. S. 637, 14 Sup. Ct. 225, 37 L. Ed. 1207, a contempt case, but analogous on the question at issue to the case at bar, the court said:

"As the prisoner has neither restored the months, even if it was not within the power goods nor suffered the imprisonment for three of the court to require payment of costs and its judgment to that extent exceeded its authority, yet he cannot be discharged on habeas corpus until he has performed so much of the judgment or served out so much of the sentence as was within the power of the court to impose."

[8] If a court has jurisdiction of the person and cause, the fact that the sentence is excessive or otherwise erroneous is not ground for discharge on habeas corpus. A writ of habeas corpus cannot reach errors or irregularities which render proceedings voidable merely, but only such defects in substance as render the judgment or process absolutely void. Ex parte Keeler, 45 S. C. 537, 23 S. E. 865, 31 L. R. A. 678, 55 Am. St. Rep. 785; Barton v. Saunders, 16 Or. 51, 16 Pac. 921, 8 Am. St. Rep. 261; State v. Kinmore, 54 Minn. 135, 55 N. W. 830, 40 Am. St. Rep. 305. The writ of habeas corpus does not perform the function of a writ of error. Sennott's Case, 146 Mass. 489, 16 N. E. 448, 4 Am. St. Rep. 344; Ex parte Mooney, 26 W. Va. 36, 53 Am. Rep. 59; People v. Baker, 89 This doctrine is sustained by People v. N. Y. 460; In re Graham, 74 Wis. 450, 43 N. Jacobs, 66 N. Y. 8; People v. Baker, 89 N. Y. W. 148, 17 Am. St. Rep. 174; Ex parte Cren460; People v. Markham, 7 Cal. 208; Ex shaw, 80 Mo. 447. If the sentence is severparte Mitchell, 70 Cal. 1, 11 Pac. 488; Ex able, the prisoner should not be discharged parte Erdmann, 88 Cal. 579, 26 Pac. 372; In until he has served out the valid portion of re Graham, 74 Wis. 450, 43 N. W. 148, 17 Am. St. Rep. 174; Lowrey v. Hogue, 85 Cal. 600, 24 Pac. 995; Ex parte Mooney, 26 W. Va. 36, 53 Am. Rep. 59; Ex parte Crenshaw, 80 Mo. 447; Ex parte Shaw, 7 Ohio St. 81, 70 Am. Dec. 55; Ex parte Van Hagan, 25 Ohio St. 427; State v. Klock, 48 La. Ann. 67, 18

his sentence. Re Sweatman, 1 Cow. (N. Y.) 144; People v. Woodworth, 78 Hun, 586, 29 N. Y. Supp. 211; People v. Baker, supra; Ex parte Mooney, supra; Re Paschal, supra; Ex parte Henshaw, 73 Cal. 486, 15 Pac. 110; Ex parte Hunter, 16 Fla. 575; In re Swan, supra. If it is not severable, he should be

v. Kelly, 97 N. Y. 212, a case where the mus in this case was framed to serve as a sentence was excessive and not severable, capias as well as mittimus. That was what the court said: the situation called for. It was lawfully

"But the conviction is still valid and the pris-issued. There is nothing in Breton, Pet'r, oner not entitled to his discharge. He should 93 Me. 39, 44 Atl. 125, 74 Am. St. Rep. 335, be remanded to the sheriff * that the court * may deal with him cited by the petitioner, which is inconsistent according to law."

in order

See Feeley's Case, supra; United States v. Pridgeon, 153 U. S. 48, 14 Sup. Ct. 746, 38 L. Ed. 631. There are many other cases to the same effect. See note to Re Taylor, 45 L. R.

A. 145.

with what is said in this case.

[11] But were it otherwise, it would not avail the petitioner in this proceeding. It is the judgment of the court which authorizes detention. The mittimus is the evidence of the officer's authority. People v. Baker, 89 N. Y. 460. The judgment is the real thing; the precept is not. The important question on habeas corpus is: Is the prisoner in the custody where the judgment commanded him to be put? and not how he was taken into custody. The writ of habeas corpus will not be granted unless the real and substantial merits of the case demand it. The writ will

[9] We conclude, then, upon this branch of the case, that the imposition of additional costs in the appellate court was in excess of jurisdiction, but that this excess is clearly severable from the sentence affirmed, namely, imprisonment and the payment of a fine and costs. We also hold that the sentence was not wholly void, but void only for the excess. The petitioner has not served out the law-not be granted for defects in matters of form ful sentence of imprisonment, and has not only; nor can it be used as a substitute for O'Malia v. Wentworth, 65 paid the fine and costs which were lawfully a writ of error. imposed. In accordance with the principles Me. 129; Welch v. Sheriff, 95 Me. 451, 50 Atl. stated he is not entitled to be discharged 88. Said the court in People v. Baker, supra: on habeas corpus. If he is detained after he has served the jail sentence and has paid the fine and costs lawfully imposed, he will be entitled to a writ. Even if the sentence had not been severable, he would not be entitled to a discharge. In that event he would be remanded for sentence. The case of Tuttle v. Lang, 100 Me. 123, 60 Atl. 892, cited by the

petitioner, is not analogous.

[10] But the petitioner makes the further point that the mittimus was irregularly issued. He complains that the clerk issued it without a special order, and that without an order from the court he had no authority to issue a process by which the petitioner could be arrested. As we understand it, the contention is that while the clerk may, as a ministerial act, and as of course, without special order, issue a mittimus to commit a prisoner already in court to jail in execution of sentence, he cannot issue process to take the body and commit a convict not then in court.

ly sentenced to prison he cannot be released "If the prisoner has been properly and legal[on habeas corpus] because of a defect in the mittimus. When he is safely in the proper custody, there is no office for a mittimus to perform." Sennott's Case, supra.

This is ancient doctrine. As far back as Bethell's Case, 1 Salk. 348, it was said that: prisoner may be delivered by habeas corpus; "Where a commitment was without cause, a but where there appears to be a good cause, and a defect only in the form of commitment, as in this case, he ought not to be discharged." Writ discharged.

Petitioner remanded to the custody of the jailer in execution of sentence.

(115 Me. 507) FARNSWORTH v. MACREADIE et al. (Supreme Judicial Court of Maine. Dec. 26, 1916.)

1. EVIDENCE 230(1)-GRANTOR'S DECLARATIONS AGAINST INTEREST.

The declarations of a former owner against interest are not admissible to deny or disparage title in the broad sense, but are admissible when they relate to the nature, character, or extent of the declarant's possession, or to the identity of monuments or the location of boundaries called for in a deed.

We think there is no merit in the contention. The statute authorizing affirmation of sentence presupposes that the respondent is not in court, and that he is to be taken and committed. The issuing of proper process to carry the judgment of court into effect is a ministerial act. It is the duty of the clerk to issue the mittimus as a matter of course. There is no prescribed form for a mittimus. The statute (R. S. c. 136, § 10) provides only that the clerk shall make out and deliver to the officer "a transcript of the minutes of the conviction and sentence duly certified by him, which shall be sufficient authority for the officer to execute such sentence." The clerk must make the mittimus to fit the case. It is important only as a direction to the Sennott's Case, supra. The mitti

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 835, 840, 845, 851; Dec. Dig. 230(1).]

2. EVIDENCE 230(1)—GRANTOR's DeclaraTIONS AGAINST INTEREST.

It is indispensable to the admissibility of declarations of a former owner against his successor in title that they should relate to the premises in question.

officer.

[Ed. Note. For other cases, see Evidence, Cent. Dig. 88 835, 840, 845, 851; Dec. Dig. 230 (1).]

3. EVIDENCE 230(1) GRANTOR'S DECLARATIONS AGAINST INTEREST.

A former deed by plaintiff's grantor, describing the boundary of a tract as formed by the side line of an avenue, was admissible

owned all of the Ottawa Park tract which had not previously been conveyed. The evidence leads us to conclude that this deed was given to cure the defect in the deed from Dalton to Stanley. That defect had been discovered. But the new deed was more comprehensive than the old one.

declarations of a former owner, against inter- | deed, it seems to be conceded that either est, and so admissible against those claim- Dalton or the Ottawa Park Company then ing under it. The plaintiff contends that they are inadmissible for that purpose. The application of the rule contended for by the defendants is limited. Such declarations are not admissible to deny or disparage title in the broad sense. They are admissible when they relate to the nature, character or extent of the declarant's possession, or to the identity of monuments or the location of boundaries called for in a deed. Phillips v. Laughlin, 99 Me. 26, 58 Atl. 64, 105 Am. St. Rep. 253, 2 Ann. Cas. 1. And in Hyde v. County of Middlesex, 2 Gray (Mass.) 267, it was held that they are admissible as evidence of a dedication of land to a public use. It is indispensable, however, to the admissibility of declarations of a former owner against his successor in title, that they should relate to the premises in question. Fall v. Fall, 100 Me. 98, 60 Atl. 718.

[4] In the meantime, however, in 1911, the Ottawa Park Company had conveyed Sea View avenue, as delineated on the recorded plan, to the town of Cape Elizabeth, "as and for a public street." And the town in the same year accepted the dedication. This acceptance constituted Sea View avenue a public townway, over which the town and its agents and representatives had the same authority as over other public ways. Brown v. Bowdoinham, 71 Me. 144.

If the tract a b c d was a part of Sea View avenue as thus dedicated and accepted, the [3] It is true in this case that the declara- plaintiff had no right to build a fence across tions related to the boundaries of lot 7 as it, and the defendants were justified in taking enlarged by the "Public Grounds." That it away. In such case, whatever title the tract was bounded in the deed on the north- plaintiff got in 1914 was subject to the pubeast, east, and southeast by Sea View avenue lic easement. If it was not a part of Sea as far as to the bluff line. But the boundary View avenue, then so far as the rights of the of lot 7, thus described, was also the bound-town were concerned, it was the private propary of Sea View avenue, which the declar- erty of the plaintiff, and he had a right to ant then owned, subject to an incipient dedi- fence it off from the avenue. In this case cation, and from whom the plaintiff claims we have nothing to do with the rights of lot title. The declaration in the deeds was in owners with respect to any incipient dedicaeffect that the southerly side line of Sea tion of this tract for their benefit, created by View avenue was extended by various cours- platting the land, recording the plan, and selles to the bluff line, at about the point d in ing lots in accordance with it. But the dedithe sketch. And this related to the land cation is a circumstance showing that the now in question. We think the deeds were tract was not intended for private use. admissible as evidence for the limited purpose of showing the extent and location of the side line of Sea View avenue.

As to the plaintiff's title, only this need be said. The deed from Dalton to Stanley conveyed no title to this tract. One essential call was apparently omitted. As it reads it is impossible to apply the description to the plan, so as to make it include any of the land westerly of the bluff line. It may be noticed that in the mortgage given back by Stanley to Dalton on the same day the missing call is found. The mortgage, with the missing call supplied, included no land west of the bluff line. The deed of the Ottawa Park Company to Stanley purported to convey only such land as Dalton had given a deed of. As Stanley obtained no title, the deed of Stanley to the plaintiff conveyed

[5] The tract itself is about 80 feet long and from 40 to 50 feet wide. Upon the plan it is not numbered as a lot, nor is any particular use for it designated. If it be not a part of the avenue, it has no name. It is an open space from the line of direct travel on the avenue to the brow of a high and precipitous bluff overlooking the beach and the ocean. It has been a thoroughfare for people who desired to go down to the beach. Though not yet graded and wrought for travel, its size and shape make it susceptible for use with carriages as well as on foot. At the time the land was platted, it was evidently intended that the tract should be reserved for the general benefit of the purchasers of lots in the Park, the same as the avenues were reserved. By platting and recording the plan, and by selling lots according to the plan, this tract was dedicated, as the avenues were dedicated. But the deed of Dalton and the Ottawa | All these considerations, together with the Park Company to the plaintiff in 1914 was declarations of the owner in the deeds of lot broad enough in description to cover the 7, constrain us to the conclusion that the disdisputed tract. It purported to release and puted tract was intended to be dedicated as convey all the grantor's right, title, and in- a part of Sea View avenue. terest in all the land in Ottawa Park lying [6] But this is not enough. The convey between the easterly side line of Glen avenue ances, both to the plaintiff and to the town, and low water, which had not been previous- were made with reference to the recorded

none.