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Opinion of the Court.

the Speaker of the House, as the case may be, shall certify the fact under the seal of the Senate or House to the district attorney for the District of Columbia, whose duty it shall be to bring the matter before the grand jury for their action."

The Court of Appeals held that section 102 was constitutional and valid; that the inquiry directed by the resolution of May 17, 1894, was within the power of the Senate to execute by requiring witnesses to testify; and that the questions propounded to Chapman were pertinent to the subjectmatter given in charge to the committee; and was of opinion that the indictment was good and sufficient. 23 Wash. Law Rep. 17.

Mr. Samuel Shellabarger, Mr. Jeremiah M. Wilson and Mr. George F. Edmunds for the petitioner.

Mr. Solicitor General opposing.

MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.

The general rule is that the writ of habeas corpus will not issue unless the court, under whose warrant the petitioner is held, is without jurisdiction, and that it cannot be used to correct errors. Ex parte Watkins, 3 Pet. 197; Ex parte Parks, 93 U. S. 18; Ex parte Yarbrough, 110 U. S. 651; Ex parte Bigelow, 113 U. S. 328; In re Coy, 127 U. S. 731, 756; In re Schneider, Petitioner, 148 U. S. 162. Ordinarily the writ will not lie where there is a remedy by writ of error or appeal, In re Frederich, Petitioner, 149 U. S. 70; In re Tyler, 149 U. S. 164, 180, In re Swan, 150 U. S. 637, 648; yet in rare and exceptional cases it may be issued although such remedy exists. Ex parte Royall, 117 U. S. 241; New York v. Eno, 155 U. S. 89.

We have heretofore decided that this court has no appellate jurisdiction over the judgments of the Supreme Court of the District of Columbia in criminal cases or on habeas corpus. In re Heath, Petitioner, 144 U. S. 92; Cross v. United States,

Opinion of the Court.

145 U. S. 571; Cross v. Burke, 146 U. S. 82. But it is contended that under section 8 of the act of February 9, 1893, 27 Stat. 434, c. 74, establishing a Court of Appeals for the District of Columbia, the judgments of the Supreme Court of the District reviewable in the Court of Appeals may be reviewed ultimately in this court even in criminal cases, where the validity of a statute of, or an authority exercised under, the United States is drawn in question. We do not feel constrained, however, to determine how this may be, as we are of opinion that the application must be denied on another ground.

In New York v. Eno, 155 U. S. 89, the circumstances under which a court of the United States should, upon habeas corpus, discharge one held in custody under the process of a state court were considered, as they had previously been in Ex parte Royall, 117 U. S. 241, and the views expressed in the latter case reiterated with approval. It was held that Congress intended to invest the courts of the Union and the justices and judges thereof with power upon writ of habeas corpus to restore to liberty any person within their respective jurisdictions held in custody, by whatever authority, in violation of the Constitution or any law or treaty of the United States; that the statute contemplated that cases might arise when the power thus conferred should be exercised during the progress of proceedings instituted in a state court against a prisoner on account of the very matter presented for determination by the writ of habeas corpus; but that the statute did not imperatively require the Circuit Court by that writ to wrest the prisoner from the custody of the state officers in advance of his trial in the state court; and that while the Circuit Court had the power to do so and could discharge the accused in advance of his trial, it was not bound in every case to exercise such power immediately upon application being made for the writ. The conclusion was that, in a proper exercise of discretion, the Circuit Court should not discharge the petitioner until the state court had finally acted upon the case, when it could be determined whether the accused, if convicted, should be put to his writ of error, or the question determined on habeas corpus whether he was restrained of his liberty in

Opinion of the Court.

violation of the Constitution of the United States. These principles were fully discussed in the cases of the appeals of Royall from judgments on habeas corpus of the Circuit Court of the United States for the Eastern District of Virginia, 117 U. S. 241, and in addition thereto Royall made an original application to this court for a writ of habeas corpus, which was denied upon the grounds stated in the previous Ex parte Royall, 117 U. S. 254.

cases.

It must be admitted that special reasons of great weight exist why this should be the rule in respect of proceedings in a state court which are not applicable to cases in the courts of the United States. Nevertheless we regard it as a judicious and salutary general rule not to interfere with proceedings pending in the courts of the District of Columbia or in the Circuit Courts in advance of their final determination. In Ex parte Mirzan, 119 U. S. 584, it was decided that this court would not issue a writ of habeas corpus, even if it had the power, in cases where it might as well be done in the proper Circuit Court, if there were no special circumstances. in the case making direct action or intervention by this court necessary or expedient. And in In re Huntington, 137 U. S. 63, we applied that rule in the case of a person claiming to be detained by a United States marshal for the Southern District of New York, by virtue of an order purporting to be an order of the Circuit Court of the United States for the District of Colorado. In In re Lancaster, 137 U. S. 393, it was held that this court would not interfere where petitioners had been indicted in a Circuit Court of the United States and taken into custody, but had not invoked the action of the Circuit Court upon the sufficiency of the indictment by a motion to quash or otherwise, although the contention was that the matters and things set forth and charged in the indictment. did not constitute any offence or offences under the laws of the United States or cognizable in the Circuit Court.

In the case before us, the question as to the jurisdiction of the Supreme Court of the District of Columbia has indeed already been passed upon by that court and also by the Court of Appeals, upon a demurrer to the indictment, but the case

Syllabus.

has not gone to final judgment in either court, and what the result of a trial may be cannot be assumed. We are impressed with the conviction that the orderly administration of justice will be better subserved by our declining to exercise appellate jurisdiction in the mode desired until the conclusion of the proceedings. If judgment goes against petitioner and is affirmed by the Court of Appeals and a writ of error lies, that is the proper and better remedy for any cause of complaint he may have. If, on the other hand, a writ of error does not lie to this court, and the Supreme Court of the District was absolutely without jurisdiction, the petitioner may then seek his remedy through application for a writ of habeas corpus. We discover no exceptional circumstances which demand our interposition in advance of adjudication by the courts of the District upon the merits of the case before them.

Leave denied.

MR. JUSTICE FIELD dissented.

In re SCHRIVER, Petitioner. Submitted January 22, 1895. Decided February 4, 1895.

THE CHIEF JUSTICE: This is an application for leave to file a petition for habeas corpus differing in no material respect from that just considered, and, for the reasons there given, it is denied.

MR. JUSTICE FIELD dissented.

Mr. A. J. Dittenhoeffer for the petitioner.

MCGAHAN v. BANK OF RONDOUT.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA.

No. 104. Argued December 12, 1894. - Decided February 4, 1895.

In a suit of equity to enforce the rights of a mortgagee in mortgaged realty, the defence that the temporary withholding of the mortgage from record invalidated it as against creditors cannot be made in the first

Statement of the Case.

instance in this court, when the issue is not made by the pleadings and was not otherwise raised in the court below.

Where a deed is executed on behalf of a firm by one partner, the other partner will be bound if there be either a previous parol authority or a subsequent parol adoption of the act.

In such case ratification by the other partner may be inferred from his presence at the execution and delivery of the deed, or from his acting under it or taking the benefits of it with knowledge.

In South Carolina a tenant in common of real estate, who takes sole possession of it, excluding his cotenant, is chargeable with what he has received in excess of his just proportion, and is liable to account to him for the rents and profits of so much of the common property as he has occupied and used in excess of his share.

After the execution and delivery of a mortgage of real estate in South Carolina to a citizen of New York, the estate was sold under a judgment obtained subsequent to the mortgage and the purchasers went into possession. The mortgagee filed a bill in equity against them in the Circuit Court of the United States for the District of South Carolina, asking an injunction against commission of waste, a discovery of the amount and value of trees cut by them since they came into possession, and an accounting to the court for the same, and for a sale of the mortgaged premises for the payment of the mortgage debt. The mortgagor had died before the commencement of the suit, and his heirs were not made parties, they being citizens of the same State as the plaintiff. No objection was made to proceeding in their absence, and a decree of foreclosure and sale was made as to them, and they were further ordered to account for the conversion of the property which they had taken. Held, (1) That as the decree was operative to the extent of the foreclosure and sale, it could be sustained in respect of the accounting; (2) That the appellants could not insist, in this court, upon an objection which, if sustained, would curtail the relief to which the appellee was entitled, or overthrow the jurisdiction of the Circuit Court.

THIS was a bill filed by the National Bank of Rondout, New York, in the Circuit Court of the United States for the District of South Carolina, September 26, 1890, against Thomas R. McGahan, D. R. Smith, and E. P. Smith, citizens of South Carolina.

The bill alleged that on November 30, 1883, Walter B. Crane was seized and possessed in fee of all the undivided three-fourths of certain described parcels of land in Williamsburg and Georgetown Counties, South Carolina, known as the Longwood plantation and Britton's Ferry; that on that day,

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