J., said in reply to the point, that the Court should have decided the question of negotiability as a question of law, and not have admitted evidence of the custom of trade in regard to them, after declaring, that upon their face these Neapolitan bonds gave no evidence of being negotiable; "We are not allowed to form an opinion on them, unless supplied with evidence as to the law of the place whence they come;" and adds, that Courts can only decide such paper to be negotiable as is made so by statute, which Courts are bound to know. It is well known to the profession, that long before any English statute existed, making notes or bills negotiable, they were so treated by custom and the usages of trade, which, upon any controversy arising, were determined by a special jury of merchants, partly upon their own knowledge, and partly upon the testimony of others experienced in these matters, much as we receive the testimony of experts at the present day, upon scientific questions. It seems very proper then, that when any question arises in the Courts in regard to the negotiability of securities known in the market, the custom of merchants in regard to treating them as negotiable, should be received as one element to enable the Court to arrive at a satisfactory solution of the question of their negotiability. And so it seems the English Courts proceeded in regard to the question, when it arose as to the public securities of foreign states. The same rule has been adopted in the American Courts in regard to the public securities of the different states: Delafield vs. The State of Illinois, 2 Hill N. Y. Rep. 159. And the same rule has been extended in England to the case of Exchequer Bills: Hookey vs. Pole, 4 Barn. & Ald. 1. III. It is now entirely well settled in the American Courts, that the debentures (as they are called in England, which literally imports certificates of indebtedness, and which are more commonly called in this country bonds, whether under seal or not, by which is meant obligation, in the general sense of the word), when issued by railways or other private corporations, either in blank, or made payable to bearer, or to some one by name, or bearer, or his order, and indorsed blank, all of which forms are regarded as equivalent in legal force, must be regarded as negotiable instruments, because the practice of business men throughout the country has made them so: Morris Canal and Boating Co. vs. Fisher, 1 Stockton Ch. Rep. 667; Mechanics' Bank vs. N. Y. & N. H. Railway, 3 Kernan 599; S. C. 4 Duer 480; Carr vs. Le Fevre, 27 Penn. Rep. 413. And very recently the question came before the United States Supreme Court in White vs. Vermont and Massachusetts Railway Co., where the negotiability of the instruments was fully maintained: 21 How. Rep. 575. And in Chapin vs. same defendant, 8 Gray 575, the same doctrine is maintained. The same rule has been repeatedly extended to the securities issued by counties, cities, and other municipalities: Craig vs. The City of Vicksburg, 31 Miss. Rep. 216. But the English Courts have not treated these railway bonds, or debentures as they call them, as strictly negotiable: Athenæum Life Insurance Co. vs. Pooley, 5 Jur. N. S. 129; S. C. 3 De Gex & Jones 294 (1859). And the English Courts, in a carefully considered case, have very recently held, that a corporation is not holden by a strictly negotiable instrument purporting to be issued by them, and regular upon its face, provided the company had no authority to issue the same, thus making a distinction in that respect, between securities irregularly issued and those which were ultra vires: Balfour vs. Ernest, 5 Jur. N. S. 439. IV. A distinction has sometimes been attempted to be made between the right to maintain an action upon the interest coupons and the debenture certificates themselves. Thus, in Crosby vs. New London W. & P. Railway Co., 26 Conn. Rep. 121, where the plaintiff brought an action upon one of the coupons attached to the bonds issued by the company, and in form very similar to the one sued in the present case, it was held the action could not be maintained upon the coupon, as that was not to be regarded as a distinct and independent contract, but a mere accessory of the bond, and that the action should, therefore, have been upon the bond. But we apprehend that no such distinction is maintained in practice, but that the coupons are regarded as equally negotiable with the bonds, and that they pass currently as money the same as the bonds themselves. And the fact that they do not contain the name of any payee, or purport to be made payable to bearer, does not seem to us of any practical importance, if, in fact, among business men, they have acquired the character of negotiable securities, and of this, we think there can be no question. Mr. Justice MCLEAN seems to have entertained similar doubts in the case of Williamson, Trustee, vs. New Albany and Salem Railway, 9 Am. Railway Times, March 12, 1857. But in White vs. Vermont and Massachusetts Railway Co., supra, it was regarded as no objection to the bearer maintaining an action upon the bonds, that they were issued in blank and contained no promise to pay to the bearer. It is said any bona fide holder may fill up the blank with his own name, whenever he finds it necessary to bring an action; and "make them payable to himself or The very able and satisfactory opinion of Mr. Justice GOODENOW renders further comment needless. But it should be remembered, that many of the obstacles in the way of the negotiability of these instruments, alluded to by Ch. J. TENNEY, have hitherto induced the English Courts to deny the character of negotiability both to the bonds and the coupons, and it is only in the case of White vs. Vermont and Massachusetts Railway Co., supra, decided after the principal case, that the English cases were distinctly overruled in this country. And even at the present moment (1863), there seems to be no decision directly in conflict with the I. F. R. principal case. Supreme Court of Michigan. IN THE MATTER OF JACOB SPANGLER. One Spangler was properly enrolled among the militia, from whom a draft was to be made. By mistake the name was written Spangle on the ballot put into the box from which the quota for the county was to be drawn. This ballot being among those drawn, the Court were of opinion that the draft was not vitiated by the error in the name. Where one person is held in custody by another, acting in the right of and under the authority of the General Government, or claiming in good faith and under color of such authority to be so acting, the State Courts have no jurisdiction to inquire into the validity of such authority, and to discharge the person so held from custody. Where a draft was made under a law of Congress, but under the direction of the Governor of the State, and by Draft Commissioners appointed by him, it was held that the persons drafted and in custody of the Draft Commissioners, were held under national authority, and that the State Courts had no jurisdiction to inquire into the validity of the draft on habeas corpus. Habeas corpus, directed to Randolph Strickland, Draft Commissioner of Clinton county. The facts of the case, as they appear by the return and the admissions of the parties, are concisely stated in the opinion of Justice CAMPBELL. J. L. Chipman, for petitioner. A. Russell, United States District Attorney, for respondent. MARTIN, C. J.-Were it not for the importance of the jurisdictional question presented in this case, and the imperative necessity for its settlement at this time, I should content myself with deciding that upon the undisputed facts of this case, there is no error in the proceedings of the Draft Commissioner, and that Spangler must be redelivered to his custody. His name was fully given and properly spelled upon the enrollment, and the trifling mistake of dropping out a letter from his name upon the ballots, when the person was clearly designated, could not render the draft invalid. But I am not willing to turn the case off upon this point. The main and all important question is one of jurisdiction, and it is this which I shall consider. The solution of this question depends, in my view, entirely upon that of whether Spangler is held by the Draft Commissioner under Federal or State authority; for, if under the former, we have no jurisdiction, while if under the latter, we have. I do not concede that the return of the Commissioner that he holds Spangler under or by virtue of the authority of the United States, is of itself sufficient to deprive us of jurisdiction to inquire into the cause of his detention-for this is a traversable fact; but I do concede, that if so held, we have no jurisdiction to inquire further as to the legality of such detention, but that the whole subject is exclusively within that of the Courts of the United States. The first question therefore is, under what authority is he held? The Constitution of the United States, Art. 1, Sect. 8, empowers Congress to raise and support armies, to provide for calling forth the militia to execute the laws of the Union, to suppress insurrection, and to repel invasion, and to provide for organizing, arming, and disciplining the same, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointments of the officers, and the authority of training the militia according to the discipline prescribed by Congress, and to make all laws which shall be necessary and proper for carrying such plans into execution. The Constitution itself was framed and adopted for the purposes, among others, of insuring domestic tranquillity and promoting the general welfare of the people of the United States; and the power of regulating the militia, and of commanding its services in times of insurrection, are natural incidents to the duty of watching over the internal peace of the Union. (See Federalist, No. 29.) This whole power was conferred upon Congress, reserving only to the States the appointments of the officers, and the training of the militia according to the discipline prescribed by Congress. In the exercise of this power, Congress, by the Act of July 17th, 1862 (Ch. 201), enacted that the President should call forth the militia-if, by reason of defects in existing laws, or in the execution of them, in the several States, or in any of them, it should be found necessary to provide for enrolling the militia, and otherwise putting the Act into execution-he was authorized in such case to make all necessary rules and regulations for such purpose the power of calling forth the militia already being reposed in him by existing laws. By virtue of this authority, upon the 4th of August, 1862, the President ordered a draft of 300,000 militia, to be immediately called into the service of the United States, and directed the Secretary of War to assign the quotas to the States, and establish regulations for the draft, &c. Such assignments were accordingly made, and upon the 9th of August orders were issued from the War Department requiring the Governors of the respective States to proceed forthwith to furnish their respective quotas, directing an enrollment to be made of all able-bodied citizens between the ages of eighteen and forty-five, and providing and ordering that where no provision was made by law in any State for carrying into effect the draft thereby ordered, or when such provisions were in any manner defective, the draft should be conducted in a manner specified in such order, one provision of which requires the Governor to appoint a Draft Commissioner for each county, fixing his compensation and giving minute directions to him as to the discharge of his duties. The Governor of this State, finding that an imperfect military census had been taken, and that there were defects in our State laws, that inequality would occur in their execution, observed, in ordering the draft in question, the law of Congress and the orders of the War Department, and did not proceed under the State law. In this he exercised an executive discretion, with which we cannot interfere, and which, I think, was wise and proper. As he was not executing the laws of Michigan, he was, of necessity, obeying the laws of Congress and the orders of the President. The Draft Commissioner appointed by him was consequently a Federal, and not a State officer, and the draft was made under Federal authority, and the relator is held as such. The only remaining question is that of the jurisdiction of this Court, and of State officers, to inquire into the regularity of the draft, in the legality of Spangler's de |