Whitten v. Tomlinson, 160 U.S. 231 (1895)
Case details
Citation
160 U.S. 231
Full caption
WHITTEN v. TOMLINSON.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Decided
Dec. 16, 1895
WHITTEN v. TOMLINSON.
appe al fro m th e ci rc ui t co ur t of the uni te d sta te s for
THE DISTRICT OF CONNECTICUT.
No. 619. Argued November 20, 1895. — Decided December 16, 1895.
Under section 753 of the Revised Statutes, the qourts of the United States have power to grant writs of habeas corpus for the purpose of inquiring into the cause of restraint of liberty of any person in jail, in custody under the authority of a State, in violation of the Constitution, or of a law or treaty of the United States; but, except in cases of peculiar urgency, will not discharge the prisoner in advance of a final determination of his case in the courts of the State; and, even after such final p. 232determination in those courts, will generally leave the petitioner to his remedy by writ of error from this court.
In a petition for a writ of habeas corpus, verified by oath, as required by Rev. Stat. § 754, only distinct and unambiguous allegations of fact, not denied by the return, nor controlled by other evidence, can be assumed to be admitted.
A warrant of extradition of the Governor of a State, issued upon the requisition of the Governor of another State, accompanied by a copy of an indictment, is prima facie evidence, at least, that the accused had been indicted and was a fugitive from justice; and, when the court in which the indictment was found had jurisdiction of the offence, is sufficient-to make it the duty of the courts of the United States to decline interposition by writ of habeas corpus, and to leave the question of the lawfulness of the detention of the prisoner, in the State in which he was indicted, to be inquired into and determined, in the first instance, by the courts of the State.
A prisoner in custody under authority of a State will not be discharged by a court of the United States by writ of habeas corpus, because an indictment against him lacked the words “a true bill,” or was found by the grand jury by mistake or misconception; or because a mittimus issued by a justice of the peace, under a statute of the State, upon application of a surety on a recognizance, and affidavit that the principal intended to abscond, does not conform to that statute.
Thi s was a petition, filed March 26, 1895, in the Circuit Court of the United States for the District of Connecticut, and addressed to the Honorable William K. Townsend, the District Judge, as a judge of the Circuit Court, for a writ of habeas corpus to the sheriff of the county of New Haven in the State of Connecticut. The petition was signed by the petitioner, and verified by his oath, and was as follows:
“ The petition of George E. Whitten respectfully shows to your honor that he is now a prisoner confined in the custody of Charles A. Tomlinson, sheriff of the county of New Haven, in the county jail in the city of New Haven in said county, for a supposed criminal offence, to wit, a crime of murder in the second degree.
“Your petitioner also shows that such confinement is by virtue of a warrant, a copy whereof is in the possession of said sheriff; and your petitioner avers that, to the best of his knowledge, he is not committed or detained by virtue of any process of .law known to the courts of the United States or p. 233the several States, but he is now detained in violation of the Constitution of the United States, in violation of the laws of the United States, and in violation of the constitution and laws of the State of Connecticut; and that he is not held in confinement by virtue of any final judgment or decree of any competent court or tribunal of criminal jurisdiction, or by virtue of any process issued upon such judgment or decree, but is held without due process of law.
“ And your petitioner further says that at the time of his arrest, and for a long time prior thereto, he was a citizen of Massachusetts, and was extradited from Massachusetts for said alleged crime in January, 1895 ; and he says that he is advised by his counsel, William H. Baker, residing at Boston, and so believes, that his said imprisonment is illegal, and that said illegality consisted in this, to wit:
“ That in August and September, 1893, this petitioner was tried before the local court sitting within and for the county of New Haven, State of Connecticut, upon a charge of murder in the second degree, being the same alleged charge for which he was extradited, and was after a full hearing thereof discharged from said court.
“ That thereafterwards this petitioner remained in the city of New Haven, State of Connecticut, for a long time — during at least two sessions of the grand jury — and then removed to Newton in the Commonwealth of Massachusetts, some time early in the year 1894.
“ That he was in January, 1895, while such citizen of Massachusetts, arrested and extradited from the State of Massachusetts upon a warrant issued by the Governor of Massachusetts, on demand and application of the Governor of Connecticut, alleging that an indictment had been found by the grand jury against him of murder within and for the county of New Haven, being the same charge on which he was tried as above. This petitioner was taken to the said city of New Haven by virtue thereof.
“ This petitioner avers that no indictment was ever found against him by any grand jury sitting at any time within the State of Connecticut, nor no indictment as and for a true bill p. 234ever was presented by any grand jury in said State of Connecticut against him, which he is ready to verify and prove, and any pretended indictment was found by mistake or misconception and was not their true verdict or finding.
“ Further, your petitioner says that he was not, at the time of this extradition as aforesaid, a fugitive from justice from said State of Connecticut.
“ Wherefore your petitioner prays a writ of habeas corpus^ to the end that he may be discharged from custody, and be allowed to depart safely from out the State of Connecticut to the Commonwealth of Massachusetts, without interference in any way by the state authorities of the State of Connecticut, without reference to said charge made against him.”
On March 27, a writ of habeas corpus was issued accordingly by the District Judge, returnable forthwith at a special term of the Circuit Court.
On March 28, the sheriff made his return to the writ, stating, as the cause of the petitioner’s. detention and imprisonment, that he was committed to the jail by virtue of the following mittimus:
“ To the Sheriff of New Haven County, his deputy, or any proper officer or indifferent person, Greeting:
“ Whereas Lucius B. Hinman, of New Haven, Conn., did on the 17th day of January, 1895, enter into a recognizance in the sum of five thousand dollars for the appearance of George E. Whitten, of the town of Newton, State of Massachusetts, before the Superior Court to be holden at New Haven within and for the county of New Haven on the first Tuesday of January, 1895, and the said Lucius B. Hinman now believes that said George E. Whitten intends to abscond, and having produced the evidence that he is surety as aforesaid for the said George E. Whitten, and hath applied to me for a mittimus, and hath made oath before me that the statements in his said application are true:
“ These are, therefore, by authority of the State of Connecticut, to command you that you forthwith arrest the said George E. Whitten, and him commit to the jail of said New Haven
County; and the keeper of said jail is hereby ordered to receive the said George E. Whitten, and him safely keep within said jail until he be discharged by due order of law. Hereof fail not, but due service and return make.
“ Dated at New Haven this 26th day of March, a .d . 1895.
“Joh n S. Fow ler , Justice of the Peace.”
The petitioner moved to quash the return, as insufficient to justify his detention.
The Circuit Court, upon a hearing, denied the motion, and .discharged the writ of habeas corpus, without prejudice to the right of the petitioner to renew the motion; and filed an opinion by the District Judge (67 Fed. Rep. 230) in which the grounds of decision were stated as follows:
“ The writ was issued; and the sheriff brought the petitioner into this court, and made return, as to the cause of his detention and imprisonment, that he was committed to jail by virtue of a mittimus, in the form provided for by statute, duly issued by a justice of the peace on the application of the bondsman, upon oath, that the petitioner intended to abscond. A hearing was had upon a motion to quash the return.”
“ The petitioner was arrested in Massachusetts, and brought into this State under a warrant issued by the Governor of Massachusetts, upon the requisition of the Governor of Connecticut, accompanied by a certified copy of the indictment charging the crime, and an affidavit that the petitioner was a fugitive from justice.
“ It is claimed, in support of the petition, that the indictment was procured by mistake, and that the prisoner was not in fact a fugitive from justice. These claims are denied by the attorney for the State. In view of the conclusions reached, it is not necessary to pass upon these questions of fact. It may be assumed, in the disposition of this motion, that all the allegations in the petition are true.
‘ Counsel for the petitioner claims that he can prove, in the first place, that the indictment is invalid or void, by reason of some mistake on the part of the grand jury. But the effect of p. 236an inquiry into this question, assuming such evidence to be admissible and true, would be to call upon the Federal court to examine into the proceedings under which said indictment was obtained, and to determine collaterally its sufficiency under the laws of this State.”
“ It is further claimed that the petitioner was not a fugitive from justice, and that, inasmuch as extradition proceedings are based upon the statutes of the United States, the question whether he was in fact such fugitive is a Federal question, which it is the duty of this court to decide. But it is not denied that the demand made upon the executive authority of. the asylum State, and his action thereon, were proper in form; and it will not be assumed in advance that he has surrendered the petitioner upon insufficient evidence.”
“ I do not mean to be understood as denying the right to this prisoner, at an appropriate time, to introduce evidence that he was not a fugitive from justice, or that the evidence before the Governor of Massachusetts was insufficient to authorize his action; nor do I intend at this time to pass upon the merits of this or any other questions presented, nor to intimate what disposition might be made of these claims, in case they were brought before this court after final action in the state court. All that is now decided is that it must be assumed in advance that the petitioner may obtain all the protection to which he may be entitled in the courts of this State.”
“ In view of the principle of right and law, underlying the forbearance which the Federal and state courts exercise towards each other in order to avoid conflict, I should not be justified in passing upon such questions in advance of the proceedings in the state courts.”
On April 25, the petitioner filed in the Circuit Court an appeal, reciting the petition, the return, and the motion to quash the return, and concluding as follows:
“ The said Circuit Court of the United States for the District of Connecticut, on the twenty-eighth day of March, 1895, made final ruling and decreed that upon the face of the petition, without hearing any evidence to sustain the petition, [and p. 237denying the petitioner the right to introduce any evidence to sustain said petition or tending to sustain it, which the plaintiff duly offered,] the writ should be discharged, and that the motion to quash said return be denied, and it was afterwards so decreed and ordered.
“ Wherefore this petitioner appeals from the whole of said decree of said Circuit Court, and the petition, return, motion to quash, decree, writ and all other papers forming a record of said cause may be sent to the Supreme Court of the United States without delay, together with this appeal, and moves that the said Supreme Court will proceed to hear the said cause anew, and that the said decree of the said Circuit Court be reversed, and for such further order and decree to be made as will to the Supreme Court of the United States seem just and right. The petition for the writ of habeas corpus, the writ of habeas corpus, the return of the sheriff, the motion to quash, and the decree of the court, are hereby made a part of this appeal.”
On the same day, that appeal was allowed by the District Judge.
On May 8, the petitioner filed a paper, purporting to amend his appeal by inserting the words above printed in brackets; and with this paper filed the «following letter addressed to his counsel by the District Judge:
“ United States Courts, Judges’ Chambers, New Haven, May 4,1895. William H. Baker, Esq., 39 Court Street, Boston, Mass. Dear Sir: Continuous court engagements night and day for two days have prevented an earlier reply to your letter of April 29th. I had supposed that the record contained a statement of the fact that the court declined to hear the evidence; and, if not, I am willing that the statement of said fact should be inserted in the record, provided it can be properly done at this time.
“Yours truly, Wil li am K. Tow nse nd .”
The record transmitted to this court set forth the matters
above stated; but showed no further order amending the record, or allowing the amendment of the appeal.
Mr. William, H. Balzer for appellant.
Mr. Edward H. Rogers, (with whom was Mr. Tilton E. Doolittle on the brief,) for appellee.
Mr . Just ic e Gra y , after stating the case, delivered the opinion of the court.
By the judicial system of the United States, established by Congress under the power conferred upon it by the Constitution, the jurisdiction of the courts of the several States has not been controlled or interfered with, except so far as necessary to secure the supremacy of the Constitution, laws and treaties of the United States.
With this end, three different methods have been provided by statute for bringing before the courts of the United States proceedings begun in the courts of the States.
First. From the earliest organization of the courts of the United States, final judgments, whether in civil or in criminal cases, rendered by the highest court of a State in which a decision in the case could be had, against a right specially set up or claimed under the Constitution, laws or treaties of the United States, may be reexamined and reversed or affirmed by this court on writ of error. Acts of September 24,1789, c. 20, § 25, 1 Stat. 85; February 5, 1867, c. 28, § 2, 14 Stat. 386; Rev. Stat. § 709; Martin n . Hunter, 1 Wheat. 304; Cohens v. Virginia, 6 Wheat. 264. Such appellate jurisdiction is expressly limited to cases in which the decision of the state court is against the right claimed under the Constitution, laws or treaties of the United States, because, when the decision of that court is in favor of such a right, no revision by this court is necessary to protect the national government in the exercise of its rightful powers. Gordon n . Caldcleugh, 3 Cranch, 268; Montgomery v. Hernandez, 12 Wheat. 129; Commonwealth Bank v. Griffith, 14 Pet. 56, 58; Missouri v. Andriano, 138 U. S. 496, 500, 501.
Second. By the Judiciary Act of 1789, the only other way of transferring a case from a state court to a court of the United States was under section 12,' by removal into the Circuit Court of the United States, before trial, of civil actions against aliens, or between citizens of different States. 1 Stat. 79. Such right of removal for trial has been regulated, and extended to cases arising under the Constitution, laws Or treaties of the United States, by successive acts of Congress, which need not be particularly referred to, inasmuch as the present case is not one of such a removal.
Third. By section 14 of the old Judiciary Act, the courts of the United States were authorized, in general terms, to issue writs of habeas corpus and other writs necessary for the exercise of their respective jurisdictions; “ provided that writs of habeas corpus shall in no case extend to prisoners in jail, unless when they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.” 1 Stat. 81. Under that act, no writ of habeas corpus, except ad testificandum, could be issued in the case of a prisoner in jail under commitment by a court or magistrate of a State. Ex parte Dorr, 3 How. 103; In re Burrus, 136 U. S. 586, 593.
By subsequent acts of Congress, however, the power of the courts of the United States to issue writs of habeas corpus of prisoners in jail has been extended to the case of any person m custody for an act done or omitted in pursuance of a law of the United States, or of an order or process of a court or judge thereof; or in custody in violation of the Constitution, or of a law or treaty of the United States; or who, being a subject or citizen of and domiciled in a foreign State, is in custody for an act done or omitted under any right or exemption claimed under a foreign State, and depending upon the law of nations. Acts of March 2, 1833, c. 57, § 7, 4 Stat., 634; August 29, 1842, c. 257, 5 Stat. 539; February 5,1867, c. 28, § 1, U Stat. 385 ; Rev. Stat. § 753.
By the existing statutes, this court and the Circuit and istnct Courts, and any justice or judge thereof, have power
to grant writs of habeas corpus for the purpose of inquiring into the cause of restraint of liberty of any prisoner in jail, who “ is in custody in violation of the Constitution, or of a law or treaty of the United States;” and “the court or justice or judge, to whom the application is made, shall forthwith award a writ of habeas corpus, unless it appears from the petition itself that the party is not entitled thereto; ” and “ shall proceed in a summary way to determine the facts of the case, by hearing the testimony and arguments, and thereupon to dispose of the party as law and justice may require.” Rev. Stat. §§ 751-755, 761.
The power thus granted to the courts and judges of the United States clearly extends to prisoners held in custody, under the authority of a State, in violation of the Constitution, laws or treaties of the United States. But in the exercise of this power the courts of the United States are not bound to discharge by writ of habeas corpus every such prisoner.
The principles which should govern their action in this matter were stated, upon great consideration, in the leading case of Ex parte Royall, 117 U. S. 241, and were repeated in one of the most recent cases upon the subject, as follows:
“We cannot suppose that Congress intended to compel those courts, by such means, to draw to themselves, in the first instance, the control of all criminal prosecutions commenced in state courts exercising authority within the same territorial limits, where the accused claims that he is held in custody in violation of the Constitution of the United States. The injunction to hear the case summarily, and thereupon ‘ to dispose of the party as law and justice require,’ does not deprive the court of discretion as to the time and mode in which it will exert the powers conferred upon it. That discretion should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the States, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution.” “ Where a. person is in custody, under process from a state court of p. 241onginal jurisdiction, for an alleged offence against the laws of such State, and it is claimed that he is restrained of his liberty in violation of the Constitution of the United States, the Circuit Court has a discretion, whether it will discharge him, upon habeas corpus, in advance of his trial in the court in which he is indicted; that discretion, however, to be subordinated to any special circumstances requiring immediate action. When the state court shall have finally acted upon the case, the Circuit Court has still a discretion whether, under all the circumstances then existing, the accused, if convicted, shall be put to his writ of error from the highest court of the State, or whether it will proceed, by writ of habeas corpus, summarily to determine whether the petitioner is restrained of his liberty in violation of the Constitution of the United States.” Ex parte Royall, 117 U. S. 241, 251-253; Nero York v. Eno, 155 U. S. 89, 93-95.
In Ex parte Royall and in New York v. Eno, it was recognized that in cases of urgency, such as those of prisoners in custody, by authority of a State, for an act done or omitted to be done in pursuance of a law of the United States, or of an order or process of a court of the United States, or otherwise involving the authority and operations of the general government, or its relations to foreign nations, the courts of the United States should interpose by writ of habeas corpus.
Such an exceptional case was In re Neagle, 135 U. S. 1, in which a deputy marshal of the United States, charged under the Constitution and laws of the United States with the duty of guarding and protecting a judge of a court of the United States, and of doing whatever might be necessary for that purpose, even to the taking of human life, was discharged on habeas corpus from custody under commitment by a magistrate of a State on a charge of homicide committed in the performance of that duty.
Such also was In re Loney, 134 U. S. 372, in which a person arrested by order of a magistrate of a State, for perjury in testimony given in the case of a contested Congressional election, was discharged on habeas corpus, because a charge of such perjury was within the exclusive cognizance of the courts of the
VOL. CLX—16 p. 242United States, and to permit it to be prosecuted in the state courts would greatly impede and embarrass the administration of justice in a national tribunal.
Such, again, was Wildenhus’s case, 120 U. S. 1, in which the question was decided on habeas corpus whether an arrest, under authority of a State, of one of the crew of a foreign merchant vessel, charged with the commission of a crime on board of her while in a port within the State, was contrary to the provisions of a treaty between the United States and the country to which the vessel belonged.
But, except in such peculiar and urgent cases, the courts of the United States will not discharge the prisoner by habeas corpus in advance of a final determination of his case in the courts of the State ; and, even after such final determination in those courts, will generally leave the petitioner to the usual and orderly course of proceeding by writ of error from this court. Ex parte Royall, 117 U. S. 241 ; Ex parte Fonda, 117 U. S. 516 ; In re Duncan, 139 U. S. 449 ; In re Wood, 140 U. S. 278; In re Jugiro, 140 U. S. 291 ; Cook v. Hart, 146 U. S. 183 ; In re Frederich, 149 U. S. 70 ; Hew York v. Eno, 155 U. S. 89; Pepke v. Cronan, 155 U. S. 100 ; Bergemann v. Backer, 157 U. S. 655.
In a petition for a writ of habeas corpus, verified by the oath of the petitioner, as required by section 754 of the Revised Statutes, facts duly alleged may be taken to be true, unless denied by the return, or controlled by other evidence. But no allegation of fact in the petition can be assumed to be admitted, unless distinct and unambiguous.
The facts upon which the lawfulness of the imprisonment of this petitioner depends are obscurely and imperfectly presented in his petition, and in the record transmitted to this court.
The general allegations in the petition, that the petitioner is detained in violation of the Constitution and laws of the United States, and of the constitution and laws of the State of Connecticut, and is held without due process of law, are averments of mere conclusions of law, and not of matters of fact. Cuddy’s case, 131 U. S. 280, 286.
The petition begins by alleging that the petitioner is a prisoner confined by the sheriff of the county of New Haven in the county jail for a supposed criminal offence, to wit, the crime of murder in the second degree, and that his imprisonment is by virtue of a warrant, a copy whereof is in the possession of the sheriff. It also alleges that the petitioner was a citizen of Massachusetts, and was extradited from that State for said alleged crime in January, 1895. So far, certainly, no unlawful imprisonment is shown.
The allegation that in August and September, 1893, he was tried before a local court in New Haven upon the same charge, and, upon a full hearing, was discharged by the court, would seem to point to a hearing and discharge upon an application for his committal to jail to await prosecution, rather than to a formal trial and acquittal; and, whatever effect it might have, if pleaded to a subsequent indictment, affords no ground for his discharge on habeas corpus. Ex parte Bigelow, 113 IL S. 328; Belt, petitioner, 159 U. S. 95.
It is then alleged that he remained in New Haven during at least two sessions of the grand jury, and then, early in 1894, removed to Massachusetts; and that in January, 1895, he was arrested in Massachusetts and brought to New Haven upon a warrant of extradition, issued by the Governor of Massachusetts, upon the demand of the Governor of Connecticut, alleging that an indictment for murder had been found against him by the grand jury of the county of New Haven. These allegations are immaterial, except as introductory to the remaining allegations of the petition.
One of these allegations is “ that no indictment was ever found against him by any grand jury sitting at any time within the State of Connecticut, nor no indictment as and for a true bill ever was presented by any grand jury in said State of Connecticut against him, which he is ready to verify and prove, and any pretended indictment was found by mistake or misconception, and was not their true verdict or finding.”
It is not alleged that it appears by the records of the court that no indictment was presented by the grand jury; and it 18 by no means clear that it was intended to allege anything p. 244more than that an indictment, actually presented by the grand jury to the court, lacked the words “ a true bill,” and was found by the grand jury by mistake and misconception. Such matters are proper subjects of inquiry in the courts of the State, but afford no ground for interposition by the courts of the United States by writ of habeas corpus. In re Wood, 140 U. S. 278; In re Wilson, 140 U. S. 575.
The only other allegation in the petition is that the petitioner was not, at the time of his extradition from Massachusetts, a fugitive from the justice of Connecticut.
The record, independently of the opinion of the Circuit Court, does not show what, if any, evidence was introduced at the hearing upon which the writ of habeas corpus was discharged and the prisoner left in custody. The case was heard by the Circuit Court, and not by the District Judge at chambers or out of court. Had it been so heard by him, there could have been no appeal to this court from his decision. Rev. Stat. §§ 751, 752, 764; Act of March 3, 1885, c. 353, 23 Stat. 437; Carper v. Fitzgerald, 121 U. S. 87; Lambert n . Barrett, 157 U. S. 697. The subsequent correspondence between the District Judge and the petitioner’s counsel had no proper place in the record of the court, and it does not appear that the judge intended or expected his letter to be filed or recorded. In that letter he did no more than express his willingness that the record should be amended, provided it could properly be done. It does not appear that the judge afterwards allowed, or was requested to allow, any amendment of the record, or of the appeal; and the petitioner or his counsel could not amend either the record or the appeal by his own act, without leave of the judge.
If, in order to ascertain what was proved, or offered to be proved, at the hearing, we turn to the opinion filed in the court below and sent up with the record, it thereby appears that the petitioner offered to prove that the indictment against him was procured by some mistake of the grand jury, and that he was not in fact a fugitive from justice; and tha the judge assumed, for the purpose of the disposition of the writ of habeas corpus, that all the allegations of the petition were true.
But if the opinion can be referred to as showing part of what took place at the hearing, it may likewise be referred to as showing other matters then before the court, and especially the proceedings for extradition.
As to those proceedings, the opinion (consistently with the allegations of the petition, so far as anything upon the subject is distinctly and unequivocally alleged therein,) not only states, as uncontroverted facts, that the petitioner was arrested in Massachusetts, and brought into Connecticut, under a warrant of extradition issued by the Governor of Massachusetts, upon a requisition of the Governor of Connecticut, accompanied by a certified copy of the indictment, and by an affidavit that the petitioner was a fugitive from justice ; but expressly says that it was not denied that the demand upon the executive authority of Massachusetts, and his action thereon, were proper in form.
A warrant of extradition of the Governor of a State, issued upon the requisition of the Governor of another State, accompanied by a copy of an indictment, is prima facie evidence, at least, that the accused had been indicted and was a fugitive from justice; and, when the court in which the indictment was found has jurisdiction of the offence, (which there is nothing in this case to impugn,) is sufficient to make it the duty of the courts of the United States to decline interposition by writ of habeas corpus, and to leave the question of the lawfulness of the detention of the prisoner, in the State in which he was indicted, to be inquired into and determined, in the first instance, by the courts of the State, which are empowered and obliged, equally with the courts of the United States, to recognize and uphold the supremacy of the Constitution and laws of the United States. Robb v. Connolly, 111 U. S. 624; Ex parte Reggel, 114 U. S. 642; Roberts v. Reilly, 116 U. S. 80; Cook v. Hart, 146 U. S. 183; Pearce v. Texas, 155 U. S. 311.
The return of the sheriff to the writ of habeas corpus does not (as it might well have done) set forth the indictment, and the warrant of extradition, as grounds for the detention of the prisoner. But any defect in the return in this respect affords no p. 246reason why the courts of the United States should take the prisoner out of the custody of the authorities of the State.
The return does show that the petitioner is held in custody by the sheriff by virtue of a mittimus issued to him by a justice of the peace, in accordance with sections 962 and 1613 of the General Statutes of Connecticut of 1887,1 which authorize the surety on a recognizance, either in civil or in criminal proceedings, upon making affidavit that his principal intends to abscond, to obtain from a justice of the peace a mittimus to commit him to jail.
The only objections taken by the petitioner to the sufficiency of this mittimus are, 1st, that it shows that the recognizance was entered into on the 17th of January, 1895, for his appearance “ before the Superior Court to be holden at New Haven within and for the county of New Haven on the first Tuesday of January, 1895,” which was a day already passed; and 2d, that it describes him as “ of the town of Newton, State of Massachusetts,” while the statute only authorizes the issue of a mittimus by “ a justice of the peace of the county in which such principal resides.” But the first Tuesday of January was. the day appointed by law for the beginning of the term of the Superior Court. Conn. Gen. Stat. § 1615. And the question whether the recognizance might be construed as requiring an appearance at a subsequent day in the course of the term,
1
Sec . 962. Any bail or surety who has entered into a recognizance for the personal appearance of another, and shall afterwards believe that his principal intends to abscond, may apply to a justice of the peace in the county in which such principal resides, produce his bail bond, or evidence of his being bail or surety, and verify the reason of his application by oath or otherwise; and thereupon such justice shall forthwith grant a mittimus, directed to a proper officer or indifferent person of such county, commanding him forthwith to arrest such principal, and commit him to the jail o such county; and the keeper of such jail shall receive such principal, an retain him in jail until discharged by due order of law; and such surrender of the principal shall be a full discharge of the surety upon his bond or recognizance. Sec . 1613. Any surety in a recognizance in criminal proceedings, w ° believes that his principal intends to abscond, may have the same reme y, and proceed and be discharged in the same manner, as sureties upon ai bonds in civil actions.
Syllabus.
as well as the question whether the word 11 resides,” as used in the statute, implies domicil, or only presence in the county, is a question which should be left to the decision of the courts of the State.
There could be no better illustration than this case affords of the wisdom, if not necessity, of the rule, established by the decisions of this court, above cited, that a prisoner in custody under the authority of a State should not, except in a case of peculiar urgency, be discharged by a court or judge of the United States upon a writ of habeas corpus, in advance of any proceedings in the courts of the State to test the validity of his arrest and detention. To adopt a different rule would unduly interfere with the exercise of the criminal jurisdiction of the several States, and with the performance by this court of its appropriate duties.
Order affirmed.
In re SANFORD FORK AND TOOL COMPANY,
Petitioner.
ORIGINAL.
No. 8. Original. Submitted December 2,1895.—Decided December 28,1895.
When a case has once been decided by this court on appeal, and remanded to the Circuit Court, that court must execute the decree of this court according to the mandate. If it does not, its action may be controlled, either by a new appeal, or by writ of mandamus; but it may consider and decide any matters left open by the mandate, and its decision of such matters can be reviewed by a new appeal only. The opinion delivered by this court, at the time of rendering its decree, may be consulted to ascertain what was intended by the mandate; and, either upon an application for a writ of mandamus, or upon a new appeal, it is for this court to construe its own mandate.
When the Circuit Court, at a hearing upon exceptions to an answer in equity, sustains the exceptions, and (the defendant electing to stand by his answer) enters a final decree for the plaintiff; and this court, upon appeal, orders that decree to be reversed, and the cause remanded for further proceedings not inconsistent with its opinion; the plaintiff is entitled to file a replication, and may be allowed by the Circuit Court to amend his bill.
This was a petition for a writ of mandamus to the Honorable William A. Woods, as Judge of the Circuit Court of the United States for the District of Indiana, to command him to enter, in a suit in equity pending before him, a final decree in favor of the present petitioners, defendants in that suit, in accordance with a mandate of this court upon reversing a decree of that court, on an appeal reported as Sanford Fork eft Tool Co. v. Howe, Brown <& Co., 157 U. S. 312.
By the former opinion and mandate of this court, the petition for a mandamus, and the return to the rule to show cause, the case appeared to be as follows:
A bill in equity was filed in the Circuit Court of the United States for the District of Indiana, by creditors of the Sanford Fork and Tool Company, against that company and certain of its directors and stockholders, to set aside a mortgage made by the company to the other defendants to secure them for their indorsements of promissory notes of the company.
To that bill the defendants filed an answer under oath, insisting that the mortgage was valid; and the plaintiffs filed exceptions to the answer, upon the ground that the matters therein averred were insufficient to constitute a defence to the bill or to any part thereof, as well as upon the ground that the defendants had not duly answered specific allegations of the bill. The Circuit Court, held by Judge Woods, after hearing arguments upon those exceptions, sustained them; and the defendants declining to plead further, and electing to stand by their answer, the court, “ having considered the pleadings, and being fully advised in the premises,” entered a final decree, adjudging the mortgage to be void as against the plaintiffs, and granting them the relief prayed for.
The defendants appealed to this court, which, after hearing the appeal, delivered an opinion beginning thus: “ In the absence of any testimony, and in the manner in which this case was submitted for decision, it must be assumed that the matters alleged in the bill and not denied in the answer, and the new matters set forth in the answer, are true. And the question which arises is, whether, upon these admitted facts, the decree in favor of the plaintiffs can be sustained.” 1ST
U. S. 316. This court, for reasons stated in that opinion, held that the mortgage was valid, and, therefore, that the Circuit Court erred; and in the opinion, as well as by its mandate sent down to the Circuit Court, ordered the decree of that court to be “reversed, and the cause remanded to that court for further proceedings not inconsistent with the opinion of this court.” The mandate concluded, in usual form, as follows: “You, therefore, are hereby commanded that such execution and further proceedings be had in said cause, in conformity with the opinion and decree of this court, as according to right and justice, and the laws of the United States, ought to be had, the said appeal notwithstanding.”
The defendants presented the mandate and a certified copy of the opinion of this court to the Circuit Court, held by Judge Woods; and moved for a final decree that the former decree of the Circuit Court be reversed; that the cause be held to have been submitted by the plaintiffs upon bill and answer; and that, upon the facts alleged in the bill and answer, the law is with the defendants, and the plaintiffs take nothing by their bill, and the defendants have judgment for their costs.
The Circuit Court overruled the motion of the defendants; and, on motion of ’the plaintiffs, granted leave to amend the bill; but stayed proceedings to enable the defendants to apply to this court for a writ of mandamus.
The petition to this court for a writ of mandamus alleged that the order of the Circuit Court, overruling the motion of the defendants for a final decree in their favor, and granting the motion of the plaintiffs for leave to amend their bill, was inconsistent with and in violation of the opinion, decree and mandate of this court; and prayed for a writ of mandamus to Judge Woods to grant the motion of the defendants, and to overrule the motion of the plaintiffs.
This court granted a rule to show cause, in the return to which Judge Woods stated that his action, complained of by the petitioners, arose upon his construction of the opinion and mandate of this court on reversing his former decree; and set forth his view of the matter as follows:
“ Exceptions had been improperly sustained to the answer of defendants (petitioners). For this error, as respondent construes the opinion and mandate, the decree was reversed, and the cause remanded to the Circuit Court, with the usual directions for further proceedings there. Upon the return of the cause there, and after the erroneous decree had been set aside, but before other step was taken, petitioners moved for decree in their favor, on the ground that this court had treated the cause as having been submitted below on bill and answer, and that, this court having held the answer sufficient, it followed they were entitled to such decree. Respondent could not-adopt that view, since it plainly was not what had occurred. There was no such submission of the cause below on bill and answer. Nor, in rendering the decree in favor of complainants, had respondent ‘ considered ’ the answer ; but had, since sweeping exceptions had been sustained to it, treated it as out of the record, for any purpose of the decree — a fact plainly manifest in the record before this court on appeal. He could not, therefore, suppose that this court meant, in what is said upon this point, to hold more, or other, than that the answer was sufficient, and that he had erred in holding it insufficient.
“ Respondent, therefore, having in view the rules of practice prescribed .by this court for the government of the Circuit Court, held that since, if he had overruled the exceptions to the answer, complainants would have been entitled to file replication, as provided by Rule 66 in Equity, and, if they desired it, to have leave to amend their bill, under Rule 45, he did not, nor does, believe this court, in reversing the decree, meant to deprive complainants of these rights; but inferred rather, as the more reasonable and logical deduction, that, when the Circuit Court had retraced its steps to the point where the first error occurred, the parties would stand, in respect of the case, and of each other, as if, in the progress of the cause, it had but then arrived at that juncture. To hold, instead of this view, that complainants had, by their mistake in filing exceptions, or by the court’s mistake in sustaining them, or by both things together, forfeited their right to have the cause proceed, when the errors had been corrected, in the p. 251orderly manner indicated above, seemed and seems entirely illogical, and as, therefore, foreign to the purpose of this court. Respondent accordingly ruled that, when he retraced the steps held erroneous by this court, the cause should progress as if they had not been taken at all, and as if we were but now arrived at that point. To that end, he granted, when it was craved, leave to complainants to amend their bill, and would have entered the usual order against them to file replication on or before the next rule day, had not petitioners thereupon interposed their motion for stay of proceedings until this application could be heard here.”
Judge Woods, in his return, declared himself ready, if his % construction of the opinion and mandate should not accord with that of this court, to make .and enter such order and decree, under its direction, as would carry out its opinion and mandate.
Air. Alpheus H. Snow and Air. George A. Knight for petitioners.
I. If this court, by its opinion, decree, and mandate had authorized any further proceedings after reversal except an entry of a decree by the court below in favor of the defendants on the bill and answer, it must necessarily have held that the Circuit Court had jurisdiction to receive and rule upon the so-called “ exceptions to answer,” which were, in fact, demurrers to the answer, and that it erred in its ruling on the so-called exceptions. The effect of the opinion, decree, and mandate, had such further proceedings been authorized, would have been to put this court in the position of having conferred jurisdiction upon the Circuit Courts of the United States to receive and rule upon a demurrer to a sworn answer m equity, and thus of having indirectly promulgated a new rule in equity setting aside the settled principle of equity practice which forbids that the sufficiency of an answer to constitute a defence to the bill should ever be tested.
This court, however, carefully guarded against such a result of its decision in this case by holding in its opinion that the p. 252case had been decided and should be thereafter treated as if submitted on the bill and answer, and that the Circuit Court erred in its finding and decree on the facts stated in the bill and answer; and by issuing a mandate commanding the court below to proceed in conformity with the opinion and decree, plainly meaning to command the court below to set aside its decree in favor of the complainants on the bill and answer and to proceed to render a decree, in favor of the defendants on the bill and answer.
The writ of mandamus prayed for should issue to effectuate the plain language and purpose of the opinion, decree, and mandate.
It is evident that the decree of the court below is explicable on either one of two grounds, — that the court sustained the so-called “ exceptions to answer” as a demurrer to the answer, and based its final decree on this interlocutory ruling and the refusal of defendants to plead farther; or that it treated the case as submitted for final decree on the bill and sworn answer by the election of the defendants to stand on their sworn answer and the acquiescence of the complainants therein. The decree is equally applicable to the previous recitals on either hypothesis, but the recital that the court “ considered the pleadings ” as the basis of its decree seems to point strongly to the conclusion that the court treated the case as submitted for final decree on the bill and answer, when it is remembered that the only “ pleadings ” which the court could have “considered” were the bill and answer, and that the answer was a sworn answer.
But the decree of the court below was not to be explained, when the cause came to this court on appeal, on the hypothesis that the court based its decree on an interlocutory ruling sustaining what was practically a demurrer to the answer, because this would be to assume that the court below had permitted an unauthorized pleading to be filed, and made a ruling upon such unauthorized pleading, and thus had done an act not merely erroneous, but beyond its jurisdiction.
Neither the general rules of equity practice nor the Rules in Equity established by this court for the guidance of the
Circuit Courts of the United States authorize any pleading whatever for the purpose of testing the sufficiency of an answer to constitute a defence to the bill. On the contrary, they describe clearly the proceedings subsequent to the answer which are authorized, and thus, by necessary implication, prohibit any other proceedings.
This court has held that the Circuit Courts of the United States have no authority or jurisdiction to receive on their files and rule upon a demurrer to an answer in equity, and that if a demurrer is filed, the case will be treated as if set down for hearing on bill and answer. Banks v. Manchestery 128 U. S. 244, 250.
II. Assuming (but by no means admitting) that the opinion, decree, and mandate of this court are open to a construction which would authorize the ruling of the respondent, as sole judge of the Circuit Court, counsel for petitioners cannot believe, as was claimed by counsel for the complainants in the Circuit Court, that this court intended that such construction should be placed upon them in order to relieve the complainants from the consequences of their mistake in filing their so-called “ exceptions to answer,” and in order to punish the defendants because they did not point out the mistake by filing a motion to strike the so-called “ exceptions to answer ” from the files. Had this court intended that any such construction should be placed upon the opinion, decree, and mandate, the effect of its decision would have been to hold that the parties by their agreement or acquiescence may set. aside the settled rules of equity practice and confer jurisdiction on the Circuit Courts of the United States.
The complainants having had, by the action of the defendants in refusing to plead further, every benefit that they could have had, if they had elected to submit the case on bill and answer, there is no injustice done to them by holding, them to the facts stated in the bill and answer; and the ruling of the respondent, as sole judge of the Circuit Court, opening up the case for a trial on the facts, is not to be upheld on the ground that it is necessary to prevent an injustice to complainants. If complainants had filed a general replication,, p. 254they could have had a trial on the facts. They elected not to do so, and filed an unauthorized pleading. There is no good reason why they should not take the consequences. It will not do to say that the defendants ought to have opened their eyes to the danger they were in, by filing a motion to strike out the unauthorized pleading, because such a statement, when sifted down, merely results in the conclusion, that if the parties agree, or do not disagree, that a demurrer may be filed to an answer in equity, this court will recognize such a pleading as one authorized by equity practice, and if it is of the opinion that the Circuit Court ruled erroneously on the demurrer, it will, by its mandate, direct the Circuit Court to proceed in the case in the same manner as the state court would proceed under like circumstances.
III. The rulings of the respondent, as judge, adverse to the petitioners, are not justified by the words of the mandate directing that “ such execution and further proceedings be had in said cause, in conformity with the opinion and decree of this court as according to right and justice, and the laws of the United States, ought to be had.” These words are not inconsistent with an entry by the Circuit Court of a final decree for the appellants. This court has held that a mandate framed in similar language may necessitate the entry of a final decree in favor of the appellants.
It was contended by counsel for complainants in the Circuit Court that the court was not justified in merely rendering a decree in favor of the defendants because the case was remanded for “ further proceedings ” in conformity with the opinion, and “ according to right and justice and the laws of the United States,” and the respondent, as judge, seemed to be influenced by this suggestion.
Exactly this argument has twice been made in this court, on a similar state of facts, and this court has held that the words of the mandate justified a final judgment. Stewart n . Salamon, 94 U. S. 434; Gaines v. Rugg, 148 U. S. 228.
IV. The method adopted by the petitioners to obtain a construction by this court of its mandate, of making an application for leave to file a petition for a writ of mandamus, p. 255after notice, and of presenting therewith a verified pétition to be filed, is authorized by the statutes of the United States and numerous decisions of this court. Such petition, upon leave being granted to file it, seems necessarily to be an advanced cause. If, however, a motion to advance the cause for hearing is necessary, the petitioners have complied with the requirement by incorporating such motion in their application for leave to file.
That the method of proceeding adopted by the petitioners to obtain a construction of its mandate is proper, is shown by the sections of the Statutes of the United States, and the decisions of this court, cited below: Rev. St. §§ 688, 716. Ex parte Dubuque c& Pacific Railroad, 1 Wall. 69 ; In re Washington d? Georgetown Railroad, 140 U. S. 91 ; Gaines v. Rugg, 148 U. S. 228 ; In re Humes, Petitioner, 149 U. S. 192 ; In re City Bank, Petitioner, 153 U. S. 246.
Mr. G. F. McHutt and Mr. S. B. Davis opposing.
Mr . Just ice Gray , after stating the case, delivered the opinion of the court.
When a case has been once decided by this court on appeal, and remanded to the Circuit Court, whatever was before this court, and disposed of by its decree, is considered as finally settled. The Circuit Court is bound by the decree as the law of the case ; and must carry it into execution, according to the mandate. That court cannot vary it, or examine it for any other purpose than execution ; or give any other or further relief ; or review it, even for apparent error, upon any matter decided on appeal; or intermeddle with it, further than to settle so much as has been remanded. Sibbald v. United States, 12 Pet. 488, 492 ; Texas & Pacific Railway v. Anderson, 149 U. S. 237. If the Circuit Court mistakes or misconstrues the decree of this court, and does not give full effect to the mandate, its action may be controlled, either upon a new appeal (if involving a sufficient amount) or by a writ of mandamus to execute the mandate of this court. Perkins n . p. 256Fourniq^et, 14 How. 313, 330; In re Washington & Georgetown Railroad, 140 U. S. 91; City Bank v. Hunter, 152 U. S. 512; Cit/y Bank, petitioner, 153 U. S. 246. But the Circuit Court may consider and decide any matters left open by the mandate of this court; and its decision of such matters can be reviewed by a new appeal only. Hinckley n . Morton, 103 U. S. 764; Mason n . Pewdbic Co., 153 U. S. 361; Nashua & Lowell Railroad v. Boston & Lowell Railroad, 5 U. S. App. 97. The opinion delivered by this court, at the time of rendering its decree, may be consulted to ascertain what was intended by its mandate; and, either upon an application for a writ of mandamus, or upon a new appeal, it is for this court to construe its own mandate, and to act accordingly. Siblald v. United States, 12 Pet. 488, 493 ; West v. Brashear, 14 Pet. 51; Supervisors n . Kennicott, 94 IT. S. 498; Gaines v. Rugg, 148 IT. S. 228, 238, 244.
In the case now before us, it is important, in determining what was heard and decided by the Circuit Court in the first instance, and by this court upon the appeal, to bear in mind the settled practice of courts of chancery, recognized and regulated by the rules established by this court for the Circuit Courts sitting in equity. Rev. Stat. §§ 916-918.
Upon the coming in of the defendant’s answer, several courses are open to the plaintiff.
First. The plaintiff may, upon motion, without notice to the defendant, have leave to amend his bill, with or without the payment of costs, as the court may direct. Equity Rules 29, 45.
Second. The plaintiff may file exceptions to the answer for insufficiency. Equity Rule 61. If the defendant does not submit to the exceptions, and file an amended answer, the plaintiff may set down the exceptions for hearing. Equity Rule 63. If the exceptions are thereupon allowed by the court, the defendant must put in a full and complete answer; otherwise the plaintiff may take the bill, so far as the matter of the exceptions is concerned, as confessed. Equity Rule 64.
Third. If the answer is not excepted to, or if it is adjudged or deemed sufficient, the plaintiff may file a general replication ; whereupon the cause is to be deemed, to all intents and p. 257purposes, at issue, without further pleading on either side. Equity Rule 66.
Fourth. A demurrer to the answer is unknown in equity practice. But the plaintiff may set down the case for hearing upon bill and answer; whereupon all the facts alleged in the bill and not denied in the answer, as well as all new facts alleged in the answer, are deemed admitted, as upon a demurrer to an answer in an action at law. Equity Rule 41, as amended at December Term, 1871, 13 Wall, xi; Equity Rule 60; Leeds n . Marine Ins. Co., 2 Wheat. 380; Reynolds v. Crawfordsville Bank, 112 U. S. 405, 409; Banks n . Manchester, 128 U. S. 244, 250, 251.
For the purpose of the hearing upon exceptions to an answer, the facts alleged in the bill and in the answer must indeed be considered as admitted, and only matter of law is presented for decision, as in a case set down for hearing upon bill and answer. But the difference between the two cases is this: When a case in equity is set down for hearing on bill and answer, the whole case is presented for final decree in favor of either party. But when the matter set down for hearing is the plaintiff’s exceptions to the answer, the case is not ripe for a final decree; the only question to be decided is the sufficiency of the answer; and no final decree can be entered against either party, unless it declines or omits to plead further.
In the present case, the plaintiffs, upon the coming in of the answer, neither moved for leave to amend the bill, nor filed a replication, nor set down the case for hearing upon bill and answer.
But they filed exceptions to the answer; and those exceptions only were set down for hearing, and were heard and passed upon by the court. While some of the exceptions were directed, as is usual, to the want of due answer to specific allegations of the bill, others of the exceptions related to the sufficiency of the whole answer to constitute any defence. Its sufficiency in the latter respect might properly have been questioned by setting down the case for hearing upon bill and answer. But neither for this nor for any other reason, was
VOL. CLX—17
any objection’made to the exceptions as irregular or improper in form.
The Circuit Court, upon sustaining the exceptions, could not (unless the defendants chose to stand by their answer) enter a final decree against the defendants; or do anything more than order them to put in a full and complete answer, on pain of being held to have confessed the bill. If the Circuit Court, instead of sustaining the exceptions to the answer, had overruled those exceptions, the plaintiffs would have had the right to file a replication, and the bill could not be dismissed unless and until they neglected to file one.
When the decree of the Circuit Court, sustaining the plaintiffs’ exceptions to the answer, and (because the defendants declined to plead further) granting to the plaintiffs the relief prayed for in the bill, was reversed by this court, the only matter which was or could be decided by this court, upon the record before it, was that the answer was sufficient. This court, in so deciding, could go no further than the Circuit Court could have done, had it made the like decision. Neither the Circuit Court, nor this court, upon adjudging that the answer was sufficient, could, without any consent or neglect on the part of the plaintiffs, deprive them of their right, under the general rules in equity, to file a replication.
Nor did this court undertake, either by its opinion or by its mandate, to preclude the plaintiffs from filing a replication. On the contrary, at the outset of the opinion, after observing that, in the manner in which the case was submitted for decision, the facts alleged in the bill and not denied in the answer, and the new facts alleged in the answer, must be assumed to be true, the question arising upon those admitted facts was stated to be “ whether the decree in favor of the plaintiffs can be sustained ; ” and, while the opinion declared that, assuming those facts, the mortgage was valid, yet both the opinion and the mandate ordered no final judgment for the defendant, but only ordered the judgment for the plaintiff to be reversed, and the cause remanded to the Circuit Court for further proceedings not inconsistent with the opinion of this court.
Syllabus.
The case being thus left open, by the opinion and mandate of this court, and by the general rules of practice in equity, for further proceedings, with a right in the plaintiffs to file a replication, putting the cause at issue, the Circuit Court might, in its discretion, allow amendments of the pleadings for the purpose of more fully or clearly presenting the facts at issue between the parties. Marine Ins. Co. v. Hodgson, 6 Cranch, 206, 218; Neale n . Neales, 9 Wall. 1; Hardin v. Boyd, 113 U. S. 756.
The case is quite different, in this respect, from those in which the whole case, or all but a subsidiary question of accounting, had been brought to and decided by this court upon the appeal, as in the cases principally relied on by the petitioner. Stewart v. Salamon, 94 U. S. 434, and 97 U. S. 361; Gaines n . Rugg, 148 U. S. 228; Ex Parte Dubuque <& Pacific Railroad, 1 Wall. 69 ; In re Washington de Georgetown Railroad, 140 U. S. 91.
It must be remembered, however, that no question, once considered and decided by this court, can be reexamined at any subsequent stage of the same case. Clark v. Keith, 106 O’. S. 464; Sibbald v. United States, and Texas <& Pacific Railway v. Anderson, cited at the beginning of this opinion.
Writ of manda/mus denied.