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Opinion of the Court.

aboard of her to represent him, and employed the captain and four men to take care of the vessel, besides a night watchman. The marshal's possession being a legal possession, he had the right to take this course, and I do not find anything in the testimony, or in the circumstances of the case, to warrant the conclusion that the expenses of keeping such a vessel while in the collector's or the marshal's possession were extravagant."

Whether these charges were proper or not, was a matter for the courts below to determine in the exercise of their best judgment, and, as the commissioner found that they were, and both the District Court and the Court of Appeals affirmed his action in that regard, we are not disposed to disturb their finding, although the amount seems large.

The decree of the Court of Appeals must be reversed, and the case remanded to the District Court for further proceedings in conformity to this opinion.

In re ALIX, Petitioner.

ORIGINAL.

No. 15. Original. Argued March 1, 1897.

Decided March 15, 1897.

Applying to the facts as stated in the opinion of the court the settled rules in reference to writs of prohibition laid down in In re Rice, 155 U. S. 396, 402, it is held that a proper case is not made for awarding such a writ.

THE case is stated in the opinion.

Mr. Horace L. Cheney (with whom was Mr. John F. Lewis on the brief) for petitioner.

Mr. Curtis Tilton opposing.

MR. CHIEF JUSTICE FULLER delivered the opinion of the

court.

Opinion of the Court.

John L. Mills filed his libel in the District Court of the United States for the District of New Jersey on the fourteenth day of September, A.D. 1896, against the steamer Allegheny and her cargo to recover salvage, and such proceedings were thereafter had thereon as resulted in a decree in favor of the libellant, December 2, 1896. An order for the sale of the steamer and cargo was entered December 15; a motion to vacate this order was made on behalf of Gustave Alix, master of the Belgian steamer Caucase, which was denied December 21; the sale took place December 22, and was confirmed December 30, 1896.

On December 26, 1896, Alix filed a petition of intervention in said cause, alleging that he had filed a libel in admiralty against the Allegheny, October 22, 1894, in the District Court of the United States for the District of Delaware; that the steamer had been attached by the marshal of that district in December of that year; and that the District Court for the District of New Jersey had no jurisdiction.

All the material allegations of the petition of intervention were denied by the answer thereto, and issues of fact were raised on which the question of jurisdiction depended.

Thereupon, on January 11, 1897, a petition or suggestion was filed by Alix in this court, seeking the issue of a writ of prohibition to the judge of the District Court for the District of New Jersey to restrain him from enforcing any of the orders or decrees by him theretofore made in the suit of said Mills, or proceeding further therein. A rule to show cause was granted, to which return has been duly made.

The settled rules in reference to the writ of prohibition were thus laid down in In re Rice, Petitioner, 155 U. S. 396, 402: "Where it appears that the court whose action is sought to be prohibited had clearly no jurisdiction of the cause originally, or of some collateral matter arising therein, a party who has objected to the jurisdiction at the outset and has no other remedy is entitled to a writ of prohibition as a matter of right. But where there is another legal remedy by appeal or otherwise, or where the question of the jurisdiction of the court is doubtful, or depends on facts which are not made

Statement of the Case.

matter of record, or where the application is made by a stranger, the granting or refusal of the writ is discretionary. Nor is the granting of the writ obligatory where the case has gone to sentence, and the want of jurisdiction does not appear upon the face of the proceedings. Smith v. Whitney, 116 U. S.

167, 173; In re Cooper, 143 U. S. 472, 495.”

Tested by these rules, we are clear that a proper case is not made for awarding the writ of prohibition.

ALLEN v. GEORGIA.

Writ denied.

ERROR TO THE SUPREME COURT OF THE STATE OF GEORGIA.

No. 641. Submitted January 19, 1897.- Decided March 15, 1897.

After a person had been convicted in a state court of murder, he sued out a writ of error from the Supreme Court of the State. On the day assigned

for its hearing it appeared from affidavits that the accused had escaped from jail, and was at that time a fugitive from justice. The court thereupon ordered the writ of error dismissed, unless he should within sixty days surrender himself or be recaptured, and when that time passed without either happening, the writ was dismissed. He was afterwards recaptured, and resentenced to death, whereupon he sued out this writ of error, assigning as error that the dismissal of his writ of error by the Supreme Court was a denial of due process of law. Held, that the dismissal of the writ of error by the Supreme Court of the State was justified by the abandonment of his case by the plaintiff in the writ.

THIS was a writ of error to review an order of the Supreme Court of the State of Georgia dismissing a writ of error from that court which had been sued out to reverse the conviction of the plaintiff in error for the murder of one Charles Carr.

After defendant had been convicted and sentenced to death by the Superior Court of Bibb County, he made a motion for a new trial which was overruled, whereupon he sued out a writ of error from the Supreme Court of the State, which was assigned for hearing upon the 4th day of March, 1895. The case having been called upon that day, it was made to appear to the court by affidavits that Allen, after his conviction and

Opinion of the Court.

sentence, had escaped from jail, and was at that time a fugitive from justice. Upon this showing, the court ordered that the writ of error be dismissed, unless he should within sixty days surrender himself to custody, or should be recaptured within that time, so as to be subject to the jurisdiction of the court, and should furnish evidence thereof by filing the same in the clerk's office.

On May 6 which was more than sixty days thereafter the court made a further order, in which, after stating that the plaintiff in error had not surrendered himself to custody, and furnished evidence thereof as required, and that he had not been rearrested since his escape from jail, it was ordered that the writ of error be finally dismissed.

This judgment was, on July 13, 1895, made the judgment of the Superior Court of Bibb County. Afterwards Allen, having been recaptured, was, on the 25th of April, 1896, resentenced to death by the Superior Court, and thereupon made application to one of the justices of this court for a writ of error, which was duly granted — plaintiff assigning as error that the dismissing of his writ of error by the Supreme Court of the State of Georgia was a denial of due process of law.

Mr. W. C. Glenn and Mr. Daniel W. Rountree for plaintiff in error.

Mr. J. M. Terrell and Mr. John R. Cooper for defendant in error.

MR. JUSTICE BROWN delivered the opinion of the court.

The plaintiff in error claims that the order of the Supreme Court of the State of Georgia, dismissing his writ of error to the Superior Court of Bibb County, because he had escaped from jail and was a fugitive from justice, was a denial of due process of law within the meaning of the Federal Constitution.

It appeared from the record that, after the writ of error had. been finally dismissed on May 6, 1895, Allen was subsequently recaptured and, upon April 25, 1896, was resentenced to death by the court in which he had been convicted. While the

Opinion of the Court.

precise question here involved has never before been presented to this court, we have repeatedly held that we would not hear and determine moot cases, or cases in which there was not at the time a bona fide controversy pending. In a similar case from the Supreme Court of Nebraska, Bonahan v. Nebraska, 125 U. S. 692, wherein it appeared that, pending the writ of error from this court, the plaintiff in error had escaped, and was no longer within the control of the court below, it was ordered that the submission of the cause be set aside, and unless the plaintiff were brought within the jurisdiction of the court below on or before the last day of the term, the cause should be thereafter left off the docket until directions to the contrary. A like order under similar circumstances was made in Smith v. United States, 94 U. S. 97.

In civil cases it has been the universal practice to dismiss the case whenever it became apparent that there was no real dispute remaining between the plaintiff and the defendant, or that the case had been settled or otherwise disposed of by agreement of the parties, and there was no actual controversy pending. Lord v. Veazie, 8 How. 251; Gaines v. Hennen, 24 How. 553, 628; Cleveland v. Chamberlain, 1 Black, 419; Wood-Paper Co. v. Heft, 8 Wall. 333; Dakota County v. Glidden, 113 U. S. 222; Little v. Bowers, 134 U. S. 547; California v. San Pablo &c. Railroad, 149 U. S. 308.

We know at present of no reason why the same course may not be taken in criminal cases if the laws of the State or the practice of its courts authorize it. To justify any interference upon our part, it is necessary to show that the course pursued has deprived, or will deprive, the plaintiff in error of his life, liberty or property without due process of law. Without attempting to define exactly in what due process of law consists, it is sufficient to say that, if the Supreme Court of a State has acted in consonance with the constitutional laws of a State and its own procedure, it could only be in very exceptional circumstances that this court would feel justified in saying that there had been a failure of due legal process. We might ourselves have pursued a different course in this case, but that is not the test. The plaintiff in error must have been

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