so "extraordinary" as to "warrant the intervention of the first court, state or Federal, applied to." This view ignored the settled law that a Circuit Court of the United States has no jurisdiction to issue the writ to release a citizen from imprisonment by another citizen of the same State merely because the imprisonment is wrongful. The committee was acting under a resolution of the House of Delegates, and in pursuance of a law of the State, giving power to committees of either house, authorized to sit during recess, to enforce obedience to summonses issued by them; and if they did not have the power they assumed to exercise, it was because the resolution or law, or both, was, or were, repugnant to the state constitution, and the courts of the State are the appropriate tribunals for the vindication of the state constitution and laws.

The Circuit Court was of opinion that the subject which the committee was appointed to investigate was not within the jurisdiction of the legislature, as defined by article 5 of the constitution of West Virginia, declaring that "the legislative, executive, and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others." But that objection does not "present any question under the due process of law clause of the Fourteenth Amendment." Dreyer v. Illinois, 187 U. S. 71, 83; Reetz v. Michigan, 188 U. S. 505.

Viewed in any aspect, we perceive no ground on which Caldwell's case can be considered as arising under the Constitution and laws of the United States.

Final order reversed and cause remanded with a direction to quash the writ and dismiss the petition.

Statement of the Case.

200 U.S.

GUSS v. NELSON.

APPEAL FROM, AND IN ERROR TO, THE SUPREME COURT OF TH⠀ TERRITORY OF OKLAHOMA.

No. 124. Argued December 12, 1905.-Decided January 15, 1906.

Oklahoma City v. McMaster, 196 U. S. 529, followed, to effect that the review by this court of final judgments in civil cases of the Supreme Court of Oklahoma is by writ of error under § 9 of the act of May 2, 1890, 26 Stat. 81, and not by appeal. The act of 1874 in regard to territorial courts does not apply.

An option to purchase if the buyer likes the property is essentially different from one to return the property and cancel the contract; in the former case title does not pass until the option is determined, in the latter it passes at once, subject to the right to rescind; and, as held in this case, if the option to rescind is not exercised, and the property returned according to its terms, the sale is complete, and the promise to pay the balance of the purchase price becomes absolute.

ON May 28, 1900, at Guthrie, Oklahoma Territory, the parties to this action entered into the following contract:

"Memorandum of agreement made and entered into this 28th day of May, 1900, to wit, as follows: J. T. Nelson agrees on his part to turn over 25 per cent of the capital stock of the following coal companies located in the Creek Nation, to wit: Sapulpa, Choctaw, Catoosa, Wewoka, Red Fork, Neyaka, Concharty, Tulsa, Car Creek and Broken Arrow Mining Companies, to the following persons: U. C. Guss, W. H. Gray, F. H. Greer and J. W. McNeal. The consideration of the delivery under which the above listed stock and other stock as hereinafter described is as follows: This also includes the delivery of the records belonging to each of said above-named companies, the seals and other records that in any way belong to any of said companies. A payment of $500 is to be made. in cash upon delivery of the above-named property, and additional property in the way of stock hereinafter listed. The

200 U.S.

Argument for Plaintiffs in Error.

$500 is to be considered an option on all said property until the 4th day of March, 1901. At that date the above-named parties are to pay to Nelson an additional sum of $4,500.00 (four thousand five hundred dollars), or in lieu thereof to turn back to said Nelson all the property delivered by him. In addition to the above-mentioned 25 per cent of the capital stock aforesaid, which the said J. T. Nelson represents he owns in his own right, he agrees to turn over and deliver enough more stock to make the aggregate sum of stock delivered by him under this contract as follows:"

(Here follows a list of companies and number of shares of stock in each.)

"The $500.00 above mentioned is to be earnest money, to be forfeited in case the balance of payment is not paid. Nelson also agrees to give U. C. Guss his proxy as director in each of the above-named companies until such time as it may be convenient for him to resign and Guss or some one else be elected to fill the vacancy."

On April 6, 1901, Nelson brought suit in the District Court of Logan County, Oklahoma Territory, to recover the addi- . tional sum named in the contract. After answer the case was tried by the court without a jury, and judgment rendered in his favor on February 20, 1903, for $4,500 and interest. This was affirmed by the Supreme Court of the Territory, 14 Oklahoma, 296, and its judgment was brought here both by appeal and writ of error.

Mr. A. G. C. Bierer, with whom Mr. Frank Dale was on the brief, for appellants and plaintiffs in error:

The Supreme Court of the Territory, as well as the trial court, fell into error and failed to take a correct view of the contract, which was the basis of the action. The contract was not for a sale and transfer of the stock. It was simply one wherein the parties on the one hand contracted for a right to purchase, and on the other, for the consideration named, agreed to waive the right to sell the stock to other persons until after

Argument for Defendant in Error.

200 U. S.

the expiration of the time named in the contract. Stevens v. Hertzler, 19 So. Rep. 838, distinguished. See Wailes v. Howison 93 Alabama, 375; Ide v. Leiser, 24 Pac. Rep. 695; Gordon v. Kollock, 43 California, 564; Sargent v. Gile, 8 N. H. 325; Music House v. Dusenbury, 27 S. Car. 464; Streeper v. Williams, 48 Pa. St. 450.

If the contract were other than a mere option to purchase on March 4, 1901, it has been complied with. Appellants have been ready and willing ever since that day to turn back to him everything received from Nelson. They determined by that day not to purchase this stock and not to pay the $4,500, but to return the stock. This is undenied, but the court held that they were bound either to return the stock, seals, etc., to Nelson at Fort Smith, or wherever he might happen to be that day, or to pay the $4,500. This is not the law. The contract did not stipulate where they were to turn the property back to Nelson. 2 Coke Littleton, 55; Smith v. Smith, 25 Wend. 405; Allhouse v. Ramsey, 6 Whart. (Pa.) 331; Hale v. Patton, 60 N. Y. 236; Bacon Abrid't, sub. Tender, c; Hill v. Bradley, 21 Minnesota, 20; Tasker v. Bartlett, 5 Cushing, 359; Jones v. Perkins, 20 Mississippi, 139; Wilmouth v. Patton, 5 Kentucky, 280; Burns v. McCubbin, 3 Kansas, 212; 3 Schouler Per. Pr. 281; Patterson v. Jones, 13 Arkansas, 69; Howard v. Minot, 20 Maine, 330.

Time of turning back to Nelson of the stock, certificates and stock paraphernalia received by defendants was not of the essence of the contract, and substantial compliance was made, and is all that was required. Section 850, Stat. Oklahoma, 1893, 219. The retention of the royalty by the defendant McNeal as treasurer of these corporations is immaterial here.

Mr. W. R. Biddle, Mr. W. P. Dillard, Mr. Selwyn Douglas, Mr. George S. Green and Mr. H. B. Martin for appellee and defendant in error:

The appeal may be disregarded because the proper method of obtaining a review in the Federal Supreme Court of the final

200 U.S.

Argument for Defendant in Error.

judgment of the Oklahoma Supreme Court under the act of May 2, 1890, is by writ of error and this court has no jurisdiction of the appeal. Oklahoma City v. McMaster, 196 U. S. 529; Heicht v. Boughton, 105 U. S. 235.

There are no special findings of fact or conclusions of law. The Supreme Court of Oklahoma failed to make findings of fact or conclusions of law and no declarations of law nor request to make findings of fact were requested of said courts. As there are no exceptions in this record that are suggested by the assignments of error herein, it is clearly evident that this court must affirm the judgment. Marshall v. Burtis, 172 U. S. 630; Salina Stock Co. v. Salina Creek Co., 163 U. S. 109; Cohn v. Daly, 174 U. S. 539; Cannon v. Pratt, 99 U. S. 619; Thompson v. Ferry, 180 U. S. 484; Saltonstal v. Birtwell, 150 U. S. 417; Stoner v. United States, 164 U. S. 380.

A contract to return certain shares of stock within a time limited, or pay a fixed amount per share therefor, is not a bailment, and upon a failure to return the stock within the limit, the holder becomes liable for the amount agreed upon. Haskins v. Dern, 56 Pac. Rep. 953; Stephen v. Hertzler, 19 So. Rep. 838; 21 Am. & Eng. Ency. of Law, 647; Foley v. Felrath, 98 Alabama, 176; Transportation Co. v. Kavanaugh, 93 Alabama, 324; Buswell v. Bicknell, 35 Am. Dec. 262.

Transfer of chattels, by which an option is given to the transferee, either to return or pay for the same by a certain. day, is a valid sale and vests the property in the transferee. Crocker v. Gullifer, 44 Maine, 491; McKinney v. Bradlee, 117 Massachusetts, 322; Hunt v. Wyman, 100 Massachusetts, 198; Potter v. Lee, 53 N. W. Rep. (Mich.) 1047; Henderson v. Wheaton 28 N. E. Rep. (Ill.) 1100; Tex. Pac. Ry. v. Marlor, 123 U. S. 687; Orvis v. Waite, 58 Ill. App. 504; Page v. Shainwald, 62 N. E. Rep. (N. Y.) 356; 5 Wait, Actions & Defenses, sub. Sale or Return, citing Moss v. Sweet, 16 Ad. and El. (N. S.) 493; Jameson v. Gregory, 4 Metc. (Ky.) 363; Spickler v. Marsh, 36 Maryland, 222; Schlesinger v. Stratton, 9 R. I. 578; Buffum v. Marry, 3 Massachusetts, 478; Chamberlain v. Smith, 44