35

questions 33 will not be determined on habeas corpus where the trial court has jurisdiction to determine them.34 Matters of defense afford no ground for a writ of habeas corpus. The rule is that where the trial court has jurisdiction of the offense and of the person of defendant, habeas corpus will not lie for the discharge of defendant.36 Habeas corpus is not intended to perform the functions of the trial court.37 However, the matter is one of local procedure and in some cases the right to habeas corpus has not been denied on this ground. Where the

U. S. 219, 35 SCt 54, 59 L. ed. 203; Johnson v. Hoy, 227 U. S. 245, 33 SCt 240, 57 L. ed. 497; Glasgow v. Moyer, 225 U. S. 420, 32 SCt 753, 56 L. ed. 1147; Bailey v. Alabama, 211 U. S. 452, 29 SCt 141, 53 L. ed. 278; Urquhart v. Brown, 205 U. S. 179, 27 SCt 459, 51 L. ed. 760; Riggins v. U. S., 199 U. S. 547, 26 SCt 147, 50 L. ed. 303 Ex p. Frederich, 149 U. S. 70, 13 SCt 793, 37 L. ed. 653.

Ga. Fountain v. Tarver, 150 Ga. 628, 104 SE 443.

Kan. In re Sills, 84 Kan. 660, 114
P 856; In re Brown, 62 Kan. 648, 64
P 76.
Mich. In re Underwood, 30 Mich.
502.
Wis. In re Schuster, 82 Wis. 610,

52 NW 757.

"The principle is not the less applicable because the law which was the foundation of the indictment and trial is asserted to be unconstitutional or uncertain in the description of the offense. Those questions, like others, the court is invested with jurisdiction to try if raised, and its decision can be reviewed, like its decisions upon other questions, by writ of error. The principle of the cases is the simple one that if a court has jurisdiction of the case the writ of habeas corpus cannot be employed to re-try the issues, whether of law, constitutional or other, or of fact." Glasgow v. Moyer, 225 U. S. 420, 429, 32 SCt 753, 56 L. ed. 1147.

Unconstitutionality or invalidity of statute, ordinance, or rule see infra § 23.

33. U. S.-Henry v. Henkel, 235 U. S. 219, 35 SCt 54, 59 L. ed. 203; Ex p. Simon, 208 U. S. 144, 28 SCt 238. 52 L. ed. 429; Ex p. Blair, 253 Fed. 800 [aff 250 U. S. 273, 39 SCt 468, 63 L. ed. 979 (quot Henry v. Henkel, supra)]; Collins v. Morgan, 243 Fed. 495, 156 CCA 193; U. S. v. Lair, 195 Fed. 47, 115 CCA 49; Ex p. Columbia George, 144 Fed. 985; In re Dowd, 133 Fed. 747.

Cal.-Ex p. Stephen, 114 Cal. 278, 46 P 86 (validity of ordinance).

D. C.-Posey v. Zinkham, 47 App. 293.

Fla-Bronk v. State, 43 Fla. 461, 31 S 248, 99 AmSR 119.

16

Mo.-Ex p. Mitchell, 104 Mo. 121, SW 118, 24 AmSR 324; Ex p. Kaufman; 73 Mo. 588.

See also infra § 29. "To establish a general rule that the courts on habeas corpus, and in advance of trial, should determine every jurisdictional question would interfere with the administration of the criminal law and afford a means by which, with the existing right of appeal, delay could be secured when the Constitution contemplates that there shall be a speedy trial, both in the interest of the public, and as a right to the defendant.' Henry v. Henkel, 235 U. S. 219, 228, 35 SCt 54, 59 L. ed. 203.

[a] Reason for rule. "For otherwise the 'habeas corpus courts could thereby draw to themselves, in the first instance, the control of all prosecutions in state and Federal courts.' To establish a general rule that the courts on habeas corpus, and in advance of trial, should determine every jurisdictional question would interfere with the administration of the criminal law and afford a means by which, with the existing right of appeal, delay could be secured when the Constitution contemplates that

88

there shall be a speedy trial, both in | 346; Ex p. McCorkle, 29 Tex. A. 20,
the interest of the public, and as a
13 SW 991, 25 AmSR 715.
right to the defendant." Henry v.
Newfoundl.-Ex
p. Dawson,
Henkel, 235 U. S. 219, 228, 35 SCt 54,
59 L. ed. 203.

20.

Jurisdictional defects see infra §

34. Henry v. Henkel, 235 U. S. 219, 229, 35 SCt 54, 59 L. ed. 203; Fountain v. Tarver, 150 Ga. 628, 104 SE 443. See supra notes 32, 33.

"The rule is the same whether he is committed for trial in a court within the district or held under a warrant of removal to another State. He cannot, in either case, anticipate the regular course of proceeding by alleging a want of jurisdiction and demanding a ruling thereon in habeas corpus proceedings. Glasgow v. Moyer, 225 U. S. 420, 32 SCt 753, 56 L. ed. 1147; In re Gregory, 219 U. S. 210, 31 SCt 143, 55 L. ed. 184; Ex. p. Simon, 208 U. S. 144, 28 SCL 238, 52 L. ed. 429: Johnson v. Hoy, 227 U. S. 245, 33 SCt 240, 57 L. ed. 497; Urquhart v. Brown, 205 U. S. 179, 27 SCt 459, 51 L. ed. 760; Hyde v. Shine, 199_U. S. 62, 25 SCt 760, 50 L. ed. 90; Beavers v. Henkel, 194 U. S. 73, 24 SCt 605, 48 L. ed. 882; Riggins v. U. S., 199 U. S. 547, 551, 26 SCt 147, 50 L. ed. 303; Ex p. Royall, 117 U. S. 241, 6 SCt 734, 29 L. ed. 868." Henry v. Henkel, supra.

35. See infra §§ 36, 37.

36. U. S.-Glasgow v. Moyer, 225 U. S. 420, 32 SCt 753, 56 L. ed. 1147. Ala.-State v. Albright, 155 Ala. 141, 46 S 470.

Ark. Ex p. Barnett, 51 Ark. 215,
10 SW 492.

Cal-In re Rice, 4 Cal. A. 535, 88
P 599.

Ga.--Nash v. Mangum, 141 Ga. 648,
81 SE 883.

Mo.-Ex p. Kaufman, 73 Mo. 588. Okl.-Ex p. Woods, 7 Okl. Cr. 645, 125 P. 440.

Or.-Ex p. Tice, 32 Or. 179, 49 P

1038.

See also infra §§ 19, 20, 46.

Newfoundl. 622.

Ont.-Reg. v. Cox, 16 Ont. 228. 40. Ex p. Kittrel, 20 Ark. 499. 41. U. S.-In re Lincoln, 202 U. S. 178. 26 SCt 602, 50 L. ed. 984; Riggins v. U. S., 199 U. S. 547, 26 SCt 147, 50 L. ed. 303; Ex p. Belt, 159 U. S. 95, 15 SCt 987, 40 L. ed. 88; In re Chapman, 156 U. S. 211, 15 Sct 331, 39 L. ed. 401; Ex p. Frederich, 149 U. S. 70. 13 SCt 793, 37 L. ed. 653; Ex p. Bigelow, 113 U. S. 328, 5 SCt 542, 28 L. ed. 1005; Ex p. Graves, 269 Fed. 461; Morgan V. Ward, 224 Fed. 698, 140 CCA 238; Moyer v. Anderson, 203 Fed. 881, 122 CCA 175; Ex p. Glasgow, 195 Fed. 780; Hooper V. Remmel, 165 Fed. 336, 91 CCA 322; In re Dowd, 133 Fed. 747.

Ala.-Ex p. Adams, 170 Ala. 105, 54 S 501; Selma v. Till. 42 S 405; Ex p. Bettis, 142 Ala. 68, 37 S 640; Minto v. State, 9 Ala. A. 95, 64 S 369 [rev in part on reconsideration 8 Ala. A. 306, 62 S 376 (certiorari den Ex p. Minto, 65 S 516)].

Alaska.-O'Neill v. Jordan, 5 Alas

ka 81.

Ariz.-Rodriquez v. Sims, 18 Ariz. 74, 156 P 94.

Cal-Ex p. Ballas, (A.) 199 P 816; Ex p. Meads, 26 Cal. A. 631, 147 P 985.

Colo. In re Stidger, 37 Colo. 407, 86 P 219; In re Doherty, 37 Colo. 422, 86 P 224.

Fla. Keen v. Murray, 75 Fla. 154, 77 S 855.

Il-Peo. v. Murphy, 212 Ill. 584, 72 NE 902; Peo. v. Strassheim, 242 Ill. 359, 90 NE 118; Peo. v. Murphy, 202 III. 493, 67 NE 226; Peo. v. Allen, 160 Ill. 400, 43 NE 332.

Kan.-Ex p. Owen, 200 P 1070. Mass.-In re Stalker. 167 Mass. 11, 44 NE 1068; Sennott's Case, 146 Mass. 489, 16 NE 448, 4 AmSR 344; In re Feeley, 12 Cush. 598; Riley's Case. 2 Pick. 172.

Mich. In re Satt, 164 Mich. 472, 129 NW 863; In re Underwood, 30 Mich. 502.

Nev.-Ex p. Crawford, 24 Nev. 91. 49 P 1038.

[a] Military court.-The district court of the United States will not assume, on petition for habeas corpus by one held in custody by the military authorities as a deserter, that the proper military tribunal to try the offense will deny to petitioner N. Y.-Peo. v. Frost, 198 N. Y. a full and fair hearing, or will de- 110, 91 NE 376, 139 AmSR 801; Peo. prive him of any rights to which he v. McLaughlin, 194 N. Y. 556, 86 is entitled on account of having been NE 1119; Peo. v. Hayes, 166 App. improperly inducted into the army Div. 507, 151 NYS 1075 [aff 215 N. in the first place, after having been Y. 172, 109 NYS 77]; Peo. v. Jenaccorded exemption as a nondeclar-nings, 108 Misc. 93, 177 NYS 210 ant alien under the Selective Service[aff 185 NYS 949 mem]. Act (Comp. St. Annot. Suppl. [1919] Pa-Com. V. County Prison, 14 §§ 2044a-2044k), in force during the Phila. 396, 9 WklyNC 314. war with Germany. Ex p. Kerekes, Philippine.-Cowper V. Dade, 274 Fed. 870. Philippine 222; Gonzalez v. Wolfe, 12 Philippine 436.

37. Henry v. Henkel, 235 U. S. 219, 35 SCt 54, 59 L. ed. 203; Ex p. Blair, 253 Fed. 800 [aff 250 U. S. 273, 39 SCt 468, 63 L. ed. 979]; Ex p. Mitchell, 104 Mo. 121, 16 SW 118, 24 AmSR 324.

38. Bailey v. Alabama, 211 U. S. 452, 29 SCt 141, 53 L. ed. 278 (where writ of error to United States supreme court was prosecuted from judgment affirming denial of writ).

39. Ala.-State v. Sistrunk, 138 Ala. 68, 35 S 39; State v. Humphrey, 125 Ala. 110, 27 S 969; Ex p. Simpson, 3 Ala. A. 222, 57 S 518.

Mich.-Matter of Peoples, 47 Mich.
626, 14 NW 112.

Pa.-Com. v. County Prison, 19 Pa.
Dist. 6.

Tex.-Robertson v. State, 36 Tex.

29

Tex-Ex p. Roya, 85 Tex. Cr. 626, 215 SW 322; Ex p. McKay, 82 Tex. Cr. 221, 199 SW 637.

Wash. In re Newcomb, 56 Wash. 395, 105 P 1042.

Wis. Ex p. Carlson, 186 NW 722; In re Schuster, 82 Wis. 610, 52 NW 757.

Ont.-Rex v. Keenan, 28 Ont. L. 441 (under statute).

Que. Rex v. Therrien, 17 Que. Pr. 285, 28 DomLR 57, 25 CanCrCas 275.

"One strong reason why a writ of error should be resorted to, is, that as the law now stands, if the judgment be found erroneous, the court may render such judgment as should have been rendered, (St. 1851, c. 87,) and when the error is found in some

42

43

the writ, and in exceptional cases where the facts
before the court cannot be materially changed,
qualified, or explained, a writ of habeas corpus may
be granted notwithstanding the existence of a rem-
edy by appeal or writ of error," as where such
remedy is not speedy and adequate; and the rule
has been stated broadly that, if the judgment or
order upon which petitioner is imprisoned is for
any reason void and open to collateral attack, relief
may be had by habeas corpus, although the remedy
by appeal is also available.** But this is certainly
further than the federal courts will ordinarily go in
interfering with custody under state process,"
45 and
perhaps further than other courts would sanction.*
Where the time to appeal or sue out a writ of
error has expired, habeas corpus lies to secure re-
lease from detention under a void order or judg-

technical informality not affecting
the merits of the case, this power of
correcting the judgment is impor-
tant." In re Feeley, 12 Cush.
(Mass.) 598, 599.

46

51

53

ment, because in such cases it is the only remedy.*? The obstruction of the right to appeal,18 or the total absence of a remedy by appeal or writ of error,19 is not of itself any ground for granting relief by means of a writ of habeas corpus. Habeas corpus cannot be employed as a substitute for writ of error, appeal, certiorari, or similar proceedings. 50 The finding of the highest court on appeal, error, certiorari, or other like proceeding, is conclusive of the legality of the detention or restraint and cannot be reviewed by a subsequent writ of habeas corpus, except in cases where the federal courts have jurisdiction52 to interfere with the custody of persons held under state process. But it has been held that the affirmance of a judgment, void for want of jurisdiction, does not change its character and release may thereafter be obtained on the onies in the absence of a clear and | 68 P 658]; Com. V. Philadelphia unquestionable showing upon the County Prison, 16 Phila. (Pa.) 487. face of the record that the court [a] If the prisoner has been conwas wholly without jurisdiction, but victed under an unconstitutional if, on the face of the record, it statute and the time for appeal has plainly or undebatably appears that expired, he may obtain his discharge. there was a lack of jurisdiction, the In re Jarvis, 66 Kan. 329, 71 P 576. writ may be granted instead of re- 48. Ex p. DeLoche, 50 Tex. Cr. quiring the applicant to pursue his 525, 100 SW 923. more dilatory remedy by appeal. [a] Illustration. Where the Ex p. Ballas, (Cal. A.) 199 P 816. proper remedy was by appeal, refusal of approval of an appeal bond did not authorize relief by habeas corpus where approval might have been enforced by mandamus. Ex p. DeLoche, 50 Tex. Cr. 525, 100 SW 923.

44. Anderson V. Denver, 265
Fed. 3; Stevens v. McClaughry, 207
Fed. 18, 25, 125 CCA 102, 51 LRANS
390; In re McDonald, 50 Mont. 348,
146 P 942; In re Farrell, 36 Mont.
254, 92 P 785; State v. Deer Lodge
County Third Judicial Dist. Ct., 35
Mont. 321, 324, 89 P 63; In re Dow-
ney, 31 Mont. 441, 78 P 772.
But see
infra § 46.

[a] Rule applied.-The fact that one convicted of a violation of a city ordinance prohibiting one from peddling without a license was not a peddler, or that he was within the protection of the interstate law, dia not warrant his release on habeas [b] Cases considered urgent. corpus as his remedy was by appeal. Where a person is arrested pursuant Selma v. Till, (Ala.) 42 S 405. to an ordinance which was clearly 42. Appleyard V. Massachusetts, unconstitutional, and, where similar 203 U. S. 222, 27 SCt 122, 51 L. ed. ordinances had been declared to be 161, 7 AnnCas 1073; Pettibone V. SO by the United States supreme Nicholas, 203 U. S. 192. 27 SCt court, the person was entitled to his 111, 51 L. ed. 148, 7 AnnCas release without waiting to take ad1047 (where it appears from the vantage of his remedy by appeal. statement of facts that the case Ex p. Green, 114 Fed. 959; In re was one of urgency in the af- Davenport. 102 Fed. 540. fairs of the state); Riggins v. U. S., 199 U. S. 547, 26 SCt 147, 50 L. ed. 303; Ex p. Belt, 159 U. S. 95, 15 SCt 987, 40 L. ed. 88; Ex p. Siebold, 100 U. S. 371, 375. 25 L. ed. 717 (the court saying that "if the error be apparent and the imprisonment unjust, the appellate court may, perhaps, in its discretion, give immediate relief on habeas corpus, and thus save the party the delay and expense of a writ of error"); Ex p. Virginia, 100 U. S. 339, 25 L. ed. 676; las, (Cal. A.) 199 P 816; In re Bishop, 172 Mass. 35, 51 NE 191; Com. Huntley, 156 Mass. 236, 30 NE 1127. 15 LRA 839 [aff 155 U. S. 461, 15 SCt 154, 39 L. ed. 223]; Plumley's Case, 156 Mass. 236. 30 NE 1127, 15 LRA 839; In re Feeley, 12 Cush. (Mass.) 598; Peo. V. McLaughlin, 194 N. Y. 556, 86 NE 1119; Peo. v. Hayes, 166 App. Div. 507. 151 NYS 1075 [aff 215 N. Y. 172, 109 NYS 771; Peo. v. Riseley, 38 Hun (N. Y.) 280. [a] Illustrations.-(1) Where a state judge was imprisoned by process of a federal court for failing to select as jurors certain citizens of his county on account of their race, color, and previous conditions of servitude on application by the person imprisoned and also by the state in which he acted judge, the

as

"The fact

that the petitioner
has a plain remedy at law by
Mo.-State
Ex p. Bal- way of appeal is not even an argu-
ment against the issuance of the
writ."
State v. Deer Lodge County
Third Judicial Dist. Ct., supra.

V.

United States supreme court issued a writ of habeas corpus to review as an appellate court the action of the lower federal court. Exp. Virginia,

100 U. S. 339, 25 L. ed. 676. (2)

One

on

an

improperly denied his discharge for delay in trial may be released habeas corpus and not put to appeal. In re McMicken, 39 Kan. 406, 18 P 473 [mod In re Edwards, 35 Kan. 99, 10 P 539]. See also infra § 45.

Discretion in federal courts see supra § 8.

"While it is a conceded rule that a
writ of habeas corpus may not be
used as a mere writ of error, it has
been an established principle of our
national

jurisprudence for many
years that one restrained of his lib-
erty by virtue of a judgment or or-
der of a court which that court had
no jurisdiction to make might be
released by the writ of habeas cor-
pus, whether such a release could
have been secured by writ of error
or
not." Stevens V. McClaughry,
Want of jurisdiction as ground of
relief see infra § 20.

supra.

Mich. In re Butler, 138 Mich. 453, 101 NW 630. v. Dobson, 135 Mo. 1. 36 SW 238. N. Y.-Peo. 122 Davis, NYS 788. 470, 74 SE 1014. N. C.-State v. Dunn, 159 N. C.

V.

603. 166 P 75.
Okl.-Ex p. Wilcox, 13 Okl. Cr.

Porto Rico.-Matter of Cardona, 10
Porto Rico Fed. 40.

"After a judgment of conviction for felony has been affirmed by the Supreme Court brought by the convict, the legality of his conviction cannot be drawn in question by a writ of habeas corpus, sued out by him or by another person in his behalf, save for the want

of jurisdiction appearing on the face of the record as brought from the court below to the Supreme Court. tried by a court of competent jurSuch affirmance implies that he was isdiction, legally constituted, an nothing to the contrary can be

45. In re Chapman, 156 U. S. 211,
15 SCt 331. 39 L. ed. 401; In re Dowd,
133 Fed. 747. See supra § 8.

[a] Pending appeal.-Where
agent of a
was arrested for violating a borough
ordinance imposing a license on can-
vassers, and on conviction an appeal
was allowed to a higher state court,
he was not entitled to a discharge on
habeas corpus in the federal courts,
pending determination of the appeal
in the state court, on the ground
that the ordinance under which he
was convicted was invalid as against
him, as
interstate
a regulation of
commerce. Ex p. Rearick, 118 Fed.
928.
46. See cases note 41. See also
supra § 10.

nonresident corporation

43. Ex p. Hayter, 16 Cal. A. 211, 116 P 370; Hamilton's Case, 51 Mich. 174, 16 NW 327 (appellate court may make use of writ as means of exercising its supervisory power). See 47. Stevens V. McClaughry, 207 also cases supra note 42. Fed. 18, 125 CCA 102, 51 LRANS [a] Illustration.-The writ of 390; Ex p. Will, 97 Kan. 600, 155 P habeas corpus is not granted for the 934; In re Jarvis, 66 Kan. 329, 71 release of persons convicted of fel-P 576 [dist In re Gray, 64 Kan. 850,

and

shown otherwise than by inspection

of the record." Daniels v. Towers, 79 Ga. 785, 788, 7 SE 120 [dist Griffin v. Eaves, 114 Ga. 65, 39 SE 913].

[a] Illustration.-Where after sentence, the case was appealed and affirmed without opinion, the power

of the
to
magistrate
the
impose
sentence having
expressly
questioned in appellant's brief, an
court
inferior
cannot release the
relator on habeas
the
ground that the magistrate was
without power to impose the sent-
ence. Peo. v. Davis, 122 NYS 788.
52. Jurisdiction of federal courts
generally see Federal Courts § 4 et
seq.
53. See infra §§ 128-131. See also
supra § 8.

54. McDonald v. Smith, 68 Fla. 77, 78, 66 S 430 (affirmance of criminal court by circuit court); Ex p. Thomas, 12 Porto Rico 350.

on

Utah.-Ex p.
P 552.

N. B.-Ex
475, 10

Meears, 3 Utah 50, 5

Dom 613,

Seriesky, 41 N. B.
21 CanCrCas
140, 12 EastLR 387.
Ont.-Rex v. Martin, 41 Ont. L.
79; In re Bartels, 15 Ont. L. 205, 10
OntWR 553.

Que. Morency v. Fortier, 12 Que.
Super. 68; Fraser v. Tupper, 3 Montr.
Leg. N. 394; Re Fournier, 32 Dom LR
720, 26 CanCrCas 405.

it."

S. C.-Ex p. Messervy, 80 S. C. 285, 61 SE 445.

Tex.-Ex p. Foster, 44 Tex. Cr. 423, 71 SW 593, 100 AmSR 866, 60 LRA 631; Ex p. Snodgrass, 4 Tex. Cr. 359, 65 SW 1061.

"An actual or physical restraint, and not a mere moral one, is necessary to warrant interference by habeas corpus; but any restraint which precludes freedom from action is

sufficient, and actual confinement in State, 170 Ala. 102, 104, 54 S 271, jail is unnecessary." Palmer v. AnnCas1912C 950.

as to the

[a] After affirmance of a conviction (1) by the supreme court, only a want of jurisdiction apparent the face of the record can be considered on habeas corpus. Daniels V. Towers, 79 Ga. 785, 7 SE 120. (2) There being no express or implied authority in the criminal court of record to impose and enforce a sent- "There must be actual confinement ence to "serve at hard labor on the or the present means of enforcing county roads," such a sentence is Wales v. Whitney, 114 U. S. 564, void. McDonald v. Smith, 68 Fla. 571, 572, 5 SCt 1050, 29 L. ed. 271. 77, 78, 66 S 430. (3) [a] "The test "There is Where a judgno very satisfactory ment of a criminal court of record is definition to be found in the ad-right to this writ is the existence of void, an affirmance of the judgment judged cases of the character of the such an imprisonment or detention, by the circuit court gives it no restraint or imprisonment suffered actual though it may not be, as devalidity, and it may be assailed in by a party applying for the writ of prives one of the privilege of going when and where he pleases." State habeas corpus proceedings. Mc-habeas corpus, which is necessary to Donald v. Smith, supra. sustain the writ. This can hardly be v. Wurdeman, 254 Mo. 561, 572, 163 55. SW 849. the See also generally Election of expected from variety of reRemedies 20 C. J. p 1. straints for which it is used to give [b] The refusal to allow a Chi56. is a rerelief. Confinement under civil and nese passenger to land (1) criminal process may be so relieved. straint of his liberty entitling him Wives restrained by husbands, chil- to relief. Chin Yow v. U. S., 208 U. dred withheld from the proper par-S 8, 28 SCt 201, 52 L. ed. 369; U. S. ent or guardian, persons under arbiv. Jung Ah Lung, 124 U. S. 621, 8 trary custody by private individuals, SCt 663, 31 L. ed. 591; Gee Fook as in a madhouse, as well as those Sing v. U. S., 49 Fed. 146, 1 CCA 211; under military control, may all beIn re Jung Ah Lung, 25 Fed. 141. come proper subjects of relief by See also Aliens § 122. (2) "If we the writ of habeas corpus. Obvious- regard the petitioner, as in Ju Toy's ly, the extent and character of the case it was said that he should be restraint which justifies the writ regarded, as if he had been stopped must vary according to the nature and kept at the limit of our jurisdicof the control which is asserted over tion, 198 U. S. 253, 263, 25 SCt 644, the party in whose behalf the writ 49 L. ed. 1040, still it would be difis prayed." Wales V. Whitney,

Rex v. Beamish, 8 B. C. 171, 5 CanCrCas 388.

57. U. S.-Wales v. Whitney, 114 U. S. 564, 5 SCt 1050, 29 L. ed. 277 [aff 4 Mackey (D. C.) 381; Sibray v. U. S., 185 Fed. 401, 107 CCA 483; Clifford v. Williams, 131 Fed. 100; In re Grice, 79 Fed. 627 [rev on other grounds 169 U. S. 284, 18 SCt 323, 42 L. ed. 748]; In re Esselborn, 8 Fed. 904, 20 Blatchf. 1; In re Callicot, 4 F. Cas. No. 2,323, 8 Blatchf. 89; Wilson v. District of Columbia, 30 F. Cas. No. 17,822, 1 Cranch C. C. 608. Ala.-Palmer v. State. 170 Ala. 102, 54 S 271, AnnCas1912C 950.

Cal-In re Gow, 139 Cal. 242, 73
P 145: Ex p. Henion, 55 P 326.
Colo-In re Farrell, 22 Colo. 461,
45 P 428.

Kan. In re Dill, 11 P 672.
La-State v. Bertucci, 148 La. 403,
87 S 23; Dodge's Case, 6 Mart. 569.
Mass.-Com. v. Chandler, 11 Mass.

83.

Minn.-State V. Konshak, 136 Minn. 331, 162 NW 353. Mo.-Hyde v. Nelson, 229 SW 200, 202 [cit Cyc]. Mont. In re O'Brien, 29 Mont. 530, 75 P 196.

Nebr-Spring V. Dahlman, 34 Nebr. 692, 52 NW 567.

N. J.-State v. Ward, 8 N. J. L. 120; State v. Cheeseman, 5 N. J. L. 522; State v. Baird, 18 N. J. Eq. 194 [rev on other grounds 21 N. J. Eq. 384].

N. Y.-Peo. v. Buffett, 75 App. Div. 365, 78 NYS 175; Peo. v. Ciarcia, 49 App. Div. 90, 63 NYS 497; Peo. v. Biggart, 25 App. Div. 20, 48 NYS 1030; In re Lampert, 21 Hun 154.

Okl.-In re Dykes, 13 Okl. 339, 74 P 506; Ex p. Baldwin, 5 Okl. Cr. 674, 115 P 473.

V. Arnold, 3

Pa.-Respublica Yeates 263; Com. v. Sheriff, 2 Pa. Dist. 319, 13 Pa. Co. 103; Com. v. Fenicle, 20 Pa. Co. 68; Com. V. Doran, 15 Pa. Co. 385; Com. v. Gill, 10 Pa. Co. 71, 27 WklyNC 311; Com. v. Glenn, 48 LegInt 34.

supra.

[a] Escape of prisoner.-Where
it appears that petitioner has es-
caped, the writ will be denied, and
cause dismissed. Ex p. Hoern, (Okl.
Cr.) 200 P 267.

[b] Restraint of naval officer held
insufficient.-Appellant, a medical di-
rector in the navy, was, under Rev.
St. §§ 419, 420, 421, 426, 1471, ap-
pointed and commissioned chief of
the bureau of medicine and surgery
in the navy department, with the
title of surgeon general, and served
as such the full term fixed by law.
After he had vacated that office a
court-martial was ordered to try
him under charges and specifications
for conduct as chief of the bureau
and surgeon general, and the secre-
tary of the navy notified him thus:
"You
are placed under arrest and
you will confine yourself to the
limits of the City of Washington."
An application for a writ of habeas
corpus having been denied by the
supreme court of the District of
Columbia, on appeal to this court it
was held that no restraint of liberty
was shown to justify the use of the
writ of habeas corpus. Wales V.
Whitney, 114 U. S. 564, 565, 5 SCt
1050, 29 L. ed. 277.

In

[c] Public interest involved.
a case where want of actual re-
straint was ground for dismissing
the writ, the court nevertheless con-
Col-sidered the merits because of the im-
portance of the questions and the
public interest involved. In re
O'Brien, 29 Mont. 530, 75 P 196, 1
AnnCas 373.

Philippine.-Tan Me Nio v. lector of Customs, 34 Philippine 944, 947 [quot Cycl.

S. C.-State v. Williams, 35 S. C. 160, 14 SE 309 [dist State v. Fasket, 39 S. C. L. 255]; State v. Buyck, 3 S. C. L. 460.

Tex-Dirks v. State, 33 Tex. 227; Ex p. Coupland, 26 Tex. 386; Ex p. Jonischkies, 88 Tex. Cr. 129, 224 SW 1092; Long v. State, 82 Tex. Cr. 403, 199 SW 619; Ex p. Foster, 44 Tex. Cr. 423, 71 SW 593, 100 AmSR 866, 60 LRA 631; Ex p. Patterson, (Cr.) 56 SW 912; Ex p. Snyder. 39 Tex. Cr. 120, 44 SW 1108; Ex p. Cole, 14 Tex. A. 579; Griffin v. State, 5 Tex. A. 457; Ex p. Cohn, 2 Tex. A. 380; Ex p. Peyton, 2 Tex. A. 295.

58. Ala.-Palmer V. State, 170 Ala. 102, 104, 54 S 271, AnnCas 1912C 950.

La. Prieto v. St. Alphonsus Convent of Mercy, 52 La. Ann. 631, 27 S 153, 47 LRA 656.

Mich.-Underwood V. Peo., 32 Mich. 1, 2 AmR 633 (any involuntary control or seclusion).

Minn.-Northfoss V. Welch, 116 Minn. 62, 66, 133 NW 82, 36 LRANS 578, AnnCas1913A 1257.

Pa.-Com.. V. Curby, 3 Brewst.

610.

ficult to say that he was not im-
prisoned, theoretically as well as
practically, when to turn him back
meant that he must get into a vessel
against his wish and be carried to
China. The case would not be that
of a person simply prevented from
going in one direction that he de-
sired and had a right to take, all
others being left open to him, a case
in which the judges were not unani-
mous in Bird v. Jones, 7 Q. B. 742,
53 ECL 742, 115 Reprint 668. But we
need not speculate upon niceties. It
is true that the petitioner gains no
additional right of entrance by being
allowed to pass the frontier in cus-
tody for
the determination of his
case. But on the question whether
he is wrongly imprisoned we must
look at the actual facts. De facto
he is locked up until carried out of
the country against his will." Chin
Yow v. U. S., 208 U. S. 8, 12, 28
SCt 201, 52 L. ed. 369.

[c] In Texas (1) under a statute
which provides that by "restraint"
is meant the kind of control which
one person exercises over another,,
subjecting him to the general au-
thority and
power of the person
claiming such right; an attorney
committed for contempt was re-
strained, within such statutes, so as
to be entitled to maintain habeas
corpus, although the sheriff, after
arresting him, permitted him to go
home under a promise that he would
not leave the bed of his sick child,
except to go to his office and return.
Ex p. Snodgrass, 43 Tex. Cr. 359, 65
SW 1061. (2) Where relator was
committed for contempt, and the
sheriff informed him that he was un-
der arrest, and that his movements
must be under the sheriff's control,
but permitted him to have the lib-
erty of the city, that he might bring
habeas corpus proceedings, and, al-
though relator was never actually
confined in jail, it was understood
that he was in custody of the sheriff,
he was not deprived of his right to
maintain habeas corpus on the
ground that he was not in custody.
Ex p. Foster, 44 Tex. Cr. 423, 71 SW
593, 150 AmSR 866, 60 LRA 631.

60

is released on parol,59 or only confined within the jail limits, or where the restraint is merely nominal61 or moral.62 If the applicant is in custody at the time of the application, the denial of a previous application on the ground that he was then at liberty is not material.63 A person may be said to be unlawfully restrained of his liberty, so as to be entitled to the writ of habeas corpus, when, although lawfully in custody, he is deprived of some right to which, even in his confinement, he is lawfully entitled, the deprivation whereof serves to make his imprisonment more onerous than the law allows, or curtails, to a greater extent than the law perm ́'s even in his confinement, his freedom to go when

59. Ex p. Davis, 11 Okl. Cr. 403, 146 P 1085; Ex p. Cole, 14 Tex. A. 579. 60. Peo. v. Biggart, 25 App. Div. 20, 48 NYS 1030. [a] Illustration. — A defendant confined within jail limits under an execution against the body in a civil action for debt is under no such restraint as authorizes a writ of habeas corpus. Peo. v. Biggart, 25 App. Div. 20, 48 NYS 1030. 61. In re Gow, 139 Cal. 242, 73 P 145; In re Sills, 84 Kan. 660, 114 P 856; Ex p. Soldini, 4 Porto Rico 159; Re Beck, 27 Man. 228, 27 CanCr Cas 331, 32 Dom LR 288, [1917] 1 West Wkly 657.

[a] Mere nominal custody, not enforced in good faith by the proper officer, does not afford ground for a writ of habeas corpus. In re Dill, (Kan.) 11 P 672.

and where he likes.64 The writ has been used to protect petitioner against the execution of an illegal order, 65

[14] b. Persons Discharged on Bail. Persons discharged on bail are not restrained of their liberty so as to be entitled to discharge on habeas corpus, but upon their surrender to the proper officers by their sureties habeas corpus will lie.67 One whose constitutional right to a speedy trial was violated may be granted relief by habeas corpus, although at liberty on bail, where his motion for discharge is denied and no other remedy is available.68 One apprehended under writ of ne exeat and bailed on condition that he shall not depart

prisoner to consult counsel (1) in Kan. In re Sills, 84 Kan. 660, 114
private is a restraint of liberty P 856; Terr. v. Cutler, McC. 152.
which will support habeas
corpus. La-Dodge's Case, 6 Mart. 569.
1x p. Rider, (Cal. A.) 195 P 965. Minn-State V. Konshak,
(2) Contra. Long v. Minto, 81 Or. Minn. 331, 162 NW 353.
281, 158 P 805.

se

[b] Mistake of misconduct of keeper.-"Another ground was taken, viz. that the prisoner is not kept at hard labor; and further, that the prison as it now is, is not adapted to keeping prisoners at hard labor. This then presents the case of a person legally confined, but who alleges he is not legally treated. If the keepers misbehave, by using undue rigor or imposing hardships or verities on the prisoner not authorized by law, they may be punished by a proper proceeding, before the proper tribunal; or if the misbehavior consists in undue indulgence, in not imposing on the offender the sentence of the law. they are answerable for such conduct, unless some justifying cause is shown. But in no case, it is believed, will the mistake or misconduct of the [c] Banishment from locality. keeper give the criminal a right to a "The applicant in this case is neither total discharge from his sentence: imprisoned nor restrained of 'his lib-it would amount to giving the keeper erty, either illegally or legally, but and inspectors the pardoning power. comes before this court voluntarily, It would greatly extend the power merely seeking a decison as to the validity of a former sentence imposing upon him the punishment of banishment, fine and costs, and because such a proceeding with such an end in view, is not within the scope of the writ of habeas corpus, the application in this case must be denied." Ex p. Soldini, 4 Porto Rico 159. 165

[b] A person allowed to go at large subject to rearrest if ordered is not entitled to a writ of habeas corpus. Matter of Esselborn, 8 Fed. 904, 20 Blatchf. (U. S.) 1.

[d] Outstanding judgment not enforced.-Habeas corpus will not lie to test the jurisdiction of the court to render a given judgment when no effort is being made to enforce it, and defendant is at liberty on bail pending a motion for a new trial. Ex p. Messall, 2 Okl. Cr. 687, 103 P 1040.

62. Wales v. Whitney, 114 U. S. 564, 5 SCt 1050, 29 L. ed. 277; Palmer v. State. 170 Ala. 102, 54 S 271, Ann Cas1912C 950; In re Sills, 84 Kan. 660, 114 P 856; Dodge's Case, 6 Mart. (La.) 569; In re Dykes, 13 Okl. 339, 74 P 506. 63. Ex p. Jackson, (Tex. Cr.) 96 SW 924. Successive applications for writ see infra § 203.

of this Court; it would give it the
power equivalent to pardoning a
criminal, for the strange reason that
some other person had been either
too severe or too indulgent." Pem-
ber's Case, 1 Whart. (Pa.) 439, 443.

[c] Discharge will be refused
where a new warrant of commit-
ment leaving out the imposition of
hard labor illegally made in the first
commitment has been substituted
before the return of the motion.
Rex v. Hengartner, 12 Sask. L. 391,
34 CanCrCas 46, [1919] 3 WestWkly
320 [applying Rex v. Venot, (N. S.)
6 CanCrCas 209; Rex v. Walton, 11
Ont. L. 94, 10 CanCrCas 269].

€5. In re Ebanks, 84 Fed. 311 [aff 168 U. S. 707, 18 SCt 942, 42 L. ed. 1214].

136 Miss. Ex p. Caples, 58 Miss. 358; Ex p. Walker, 53 Miss. 366.

Mo.-Hyde v. Nelson, 229 SW 200. Nebr.-Spring V. Dahlman, 34 Nebr. 692, 52 NW 567.

N. J.-Ryan v. State, 7 N. J. L. J. 308.

N. Y.-Peo. v. Biggart, 25 App. Div. 20, 48 NYS 1030; Ex p. Lampert, 21 Hun 154.

Okl.-In re Dykes, 13 Okl. 339, 74 P 506; In re Smith, 6 Okl. Cr. 660, 118 P 590; Ex p. Messall, 2 Okl. Cr. 687, 103 P 1040.

Pa.-Respublica v. Arnold, 3 Yeates 263; Com. v. Sheriff, 2 Pa. Dist. 319, 13 Pa. Co. 103; Com. v. Gill, 10 Pa. Co. 71. 20 Phila. 386. But see Com. v. Ridgway, 2 Ashm. 247.

Philippine.-Tan Me Nio V. Collector of Customs, 34 Philippine 944.

S. C.-Ex. p. Messervy, 80 S. C. 285. 61 SE 445; State v. Williams, 35 S. C. 160, 14 SE 309 [dist State v. Fasket, 39 S. C. L. 255]; State v. Logan, 7 S. C. L. 493, 5 S. C. L. 415; State v. Buyck, 3 S. C. L. 460, 2 S. C. L. 563. But see Ex p. Messervy, 80 S. C. 285, 61 SE 445 (holding that it was the proper remedy to secure the release of one illegally restrained under a writ of ne exeat in custody of the surety on his bail bond). Tex.-Ex p. Chestnutt, 39 Tex. Cr. 624. 47 SW 649.

N. B.-Ex p. Seriesky. 41 N. B. 475, 10 DomLR 613, 21 CanCrCas 140, 12 EastLR 387.

"Indeed, we do not find a case in the books holding that a person out under bail is so restrained as to entitle him to the writ." Palmer v. State, 170 Ala. 102, 104, 54 S 271, AnnCas1912C 950.

[a] A debtor who has given bond not to leave the state is under mere moral restraint, and is not entitled to habeas corpus to test the regularity of the proceedings against him. Dodge's Case, 6 Mart. (La.) 569.

[a] Illustration.-A person convicted of murder and sentenced to execution appealed to the United States supreme court from an order denying a writ of habeas corpus. [b] Stipulation regarding cusPending the appeal, the state court tody.-It makes no difference that ordered his execution and a writ of the county may have stipulated that habeas corpus was issued by a fed- petitioner may be considered in cuseral circuit court for the purpose of tody. In re Dykes, 13 Okl. 339, 74 bringing him within its jurisdiction P 506. and thus preventing the execution of the sentence. Upon a stay being issued by the state court the writ of habeas corpus was dismissed. In re Ebanks. 84 Fed. 311 [aff Ebanks v. Hale, 168 U. S. 707, 18 SCt 942,

64. Ex n. Rider, (Cal. A.) 195 P 965; State v. Lawrence, 86 Minn. 310, 90 NW 769, 58 LRA 931. But see Ex p. Rogers, 7 Jur. 992 (writ refused where prisoner had been removed from one part of the prison to another where the confinement 42 L. ed. 1214]. was stricter, the food more scanty, and he was denied privileges formerly enjoyed); Beaudin V. Landriault, 23 Que. Pr. 215 (a prisoner who is subjected to hard labor without any condemnation to that effect by the court should direct his complaint to the attorney-general of the province, who has the control and direction of prisons, but he is not on that ground entitled to a writ of habeas corpus).

[a] The denial of the right of a

66. U. S. Stallings v. Splain, 253
U. S. 339, 40 SCt 537, 64 L. ed. 940
Taff 258 Fed. 510, 49 Apn. (D. C.) 38];
Johnson v. Hoy, 227 U. S. 245, 33
SCt 240, 57 L. ed. 497; Sibray v. U.
S.. 185 Fed. 401, 107 CCA 483 [rev
178 Fed. 150]; U. S. v. Peckham, 143
Fed. 625; Ex p. Burford, 4 F. Cas.
No. 2.149. 1 Cranch C. C. 456.

Ala.-Palmer V. State. 170 Ala.
102. 54 S 271, AnnCas1912C 950; Ex
p. Ford, 160 Cal. 334, 116 P 757, 35
LRANS 882, AnnCas1912D 1267.

67. In re Grice, 79 Fed. 627 [rev on other grounds 169 U. S. 284, 18 SCt 323, 42 L. ed. 7481; Ex p. Burford, 4 F. Cas. No. 2,149, 1 Cranch C. C. 456; Com. v. McFadden, 9 Lanc Bar (Pa.) 129; Tan Me Nio v. Collector of Customs, 34 Philippine 944; Ex p. Hensley, (Tex. Cr.) 24 SW 295. [a] Surrender after date of petition.-Where the petitioner was large at the date of the petition and did not surrender himself into custody until afterward, he was not entitled to a discharge. In re Brydon, 9 N. M. 647, 43 P 691.

at

Voluntary imprisonment see infra 15.

68. In re Miller, 66 Colo. 261, 180 P 749; Ex p. Mingle, 2 Okl. Cr. 708, 104 P 68. See also infra § 45.

70. U. S.-Ex p. Simon, 208 U. S. 144, 28 SCt 238, 52 L. ed. 429; In re Callicot, 4 F. Cas. No. 2,323, 8 Blatchf. 89.

Cal-Ex p. Ford, 160 Cal. 334, 116 P 757, 35 LRANS 882, AnnCas1912D 1267; In re Gow, 139 Cal. 242, 73 P 145; In re Bernson, 35 Cal. A. 344, 169 P 916.

Kan. In re Dill, 11 P 672. Minn.-State v. Konshak, 136 Minn. 331, 162 NW 353.

Okl.-In re Dykes, 13 Okl. 339, 74 P 506.

Pa. Com. v. Green, 185 Pa. 641, 40 A 96; Com. v. Fenicle, 6 Pa. Dist. 789, 20 Pa. Co. 68.

general rule as to voluntary restraint does not apply and the court will determine what is a proper custody without regard to the expressed wishes of the infant.74

[16] d. Criminal or Civil Process. The writ of habeas corpus lies to test the legality of an arrest or commitment on a criminal or quasi criminal charge.75 But the remedy by habeas corpus is

not confined to arrest and commitment on a criminal or quasi criminal charge; it may be invoked in a proper case to afford relief against an illegal imprisonment under process issued in civil actions or proceedings.76 The rule was otherwise under some early statutes, including the Habeas Corpus Act of

77

under statute of servant for failure
to perform service).
And see cases passim.
Commitment on criminal
see infra §§ 46-55.

charge

76. U. S.-Ex p. Caldwell, 138 Fed. 487 [rev on other grounds 200 U. S. 293, 26 SCt 264, 50 L. ed. 488]; Ex p. Randolph, 20 F. Cas. No. 11,558, 2 Brock 447.

Ala.-Morrow v. Bird, 6 Ala. 834.

Cal. In re Vinich, 86 Cal. 70, 26
P 528; Ex p. McCullough, 35 Cal. 97,
Colo.-In re Nash, 62 Colo. 101, 160
P 189.
Conn.-Chapman v. Welles, Kirby
Hawaii-Matter of Cambridge, 1
Hawaii 340.

133.

69. Ex p. Messervy, 80 S. C. 285, | untary surrender of the petitioner, | Newfoundl. 414 (illegal commitment 61 SE 445. he is not entitled to the benefit of the remedial writ of habeas corpus. Those decisions hold, without exception, that where one is at large upon bail given in some criminal proceeding in a given jurisdiction or sovereignty, he will not be permitted voluntarily to surrender himself into custody, and thereby assert he is being deprived of his liberty, merely for the purpose of securing a writ of habeas corpus from a tribunal of the same jurisdiction or sovereignty, and thereby perhaps hasten his release from prosecution or further attack by such jurisdiction. The case at bar is essentially dissimilar"). See Baker v. Grice, 169 U. S. 284, 293, 18 SCt 323, 42 L. ed. 748 ("The surrender of the petitioner by his bail at his request and his consequent imprisonment furnishes in itself no ground of urgency for the interference of a Federal court. The imprisonment is entirely voluntary, and while the surrender by his bondsmen may be good for the purpose of avoiding any technical objection to the issuing of the writ founded upon the fact that the petitioner was on bail, yet the fact of imprisonment under such circumstances adds noth-Com. ing to the strength of his case as calling for the interposition of the Federal court").

Tex.-Ex p. Lawrence (Cr.) 78 SW

346.

Que. Morency v. Fortier, 12 Que. Super. 68.

[a] Reason for rule.-"Voluntary imprisonment, had for the sole purpose of making a case on habeas corpus, was contrary to the spirit, purpose, and object of the writ and was an abuse of it." Ex p. Ford, 160 Cal. 334, 342, 116 P 757, 35 LRANS 882, AnnCas1912D 1267.

[b] Illustration.-Where it is apparent that the imprisonment complained of was incurred by violating an injunction for the purpose of obtaining through habeas corpus a speedy hearing of questions raised in a civil suit, the person detained is not entitled to relief. Ex p. Simon, 208 U. S. 144, 28 SCt 238, 52 L. ed. 429.

[c] Voluntary surrender to avoid summary removal from state under extradition proceedings, without opportunity to apply to courts for relief, will support a petition for habeas corpus. Ex p. Overfield, 39 Nev. 30, 152 P 568.

[d] Where a prisoner received an anconditional pardon, the court refused to entertain habeas corpus for the purpose of determining the legality of his detention prior to the granting of the pardon, even though such pardon has not been accepted. In re Callicot, 4 F. Cas. No. 2,323, 8 Blatchf. 89.

71. State v. Konshak, 136 Minn. 331, 162 NW 353.

Necessity of writ see supra § 6. 72. U. S.-Ex p. Beach, 259 Fed. 956.

Cal.-Ex p. Ford, 160 Cal. 334, 116 P 757, 35 LRANS 882, AnnCas1912D 1267; Ex p. Schmitz, 150 Cal. 663, 89 P 438; In re Gow, 139 Cal. 242, 73 P 145; In re Miller, 13 Cal. A. 564, 110 P 139.

Minn. State v. Konshak, 136 Minn. 331, 162 NW 353.

Mo.-Hyde v. Nelson, 229 SW 200. Okl.-In re Dykes, 13 Okl. 339, 74 P 506.

Pa. Com. v. Green, 185 Pa. 641, 40 A 96; Com. v. Fenicle, 20 Pa. Co. 68.

73. Ex p. Beach, 259 Fed. 956, 958 ("Relying upon the decisions in In re Gow, 139 Cal. 242, 73 P 145, Ex p. Schmitz, 150 Cal. 663, 89 P 438, and Ex p. Ford, 160 Cal. 334, 116 P 757, 35 LRANS 882, Ann Cas1912D 1267, and cases cited in those opinions, the state contends that, through the vol

[a] Illustration.-An officer or agent of the United States government arrested and detained by state authority because of an act done in the performance of his duty imposed upon him by law in virtue of his employment is entitled to a writ of habeas corpus in the federal courts, even though he voluntarily surrendered himself while on bail. Ex p. Beach, 259 Fed. 956.

Surrender by sureties

§ 14.

see supra

74. See infra § 101 et seq.
[a] In the case of negro slaves of
tender years, their willingness to go
back to their former abodes as slaves
would not prevent interference.
Com. v. Taylor, 3 Metc. (Mass.) 72;
Com, v. Aves, 18 Pick. (Mass.) 193.

75. Ala.-Ex p. Charleston, 107
Ala. 688, 18 S 224.

Cal. In re Corrvell, 22 Cal. 178.
Ind.-Turner v. Conkey. 132 Ind.
248, 31 NE 777, 32 AmSR 251, 17
LRA 509.

Minn. State v. Hayden. 35 Minn.
283, 28 NW 659; In re Snell, 31 Minn.
110. 16 NW 692.

Mo.-Ex p. Bedard, 106 Mo. 616,
17 SW 693.

Nev. Ex p. Dela, 25 Nev. 346, 60
P 217, 83 AmSR 603.

N. Y.-Peo. v. Chautauqua County,
11 NYCiv Proc 172; Peo. v. Peabody,
6 AbbPr 228; Peo. v. Tompkins, 1
Park. Cr. 224.

N. D.-State v. Beaverstad, 12 N.
D. 527, 97 NW 548.

Or. Merriman v. Morgan, 7 Or. 68.
Pa. In re Bonofilo, 18 Pa. Dist. 64,
36 Pa. Co. 31.

Tex.-Ex p. Kramer, 19 Tex. A. 123.
Vt. In re Barker, 56 Vt. 14.
Can.-Ex p. Taylor, 34 CanLJ 176.
N. B.-Ex p. Fitzpatrick, 32 N. B.
182.
Costigan,

Newfoundl.-Ex

p.

Ill. Schwarzschild V. Goldstein, 121 Ill. A. 1.

Iowa.-Addis V. Applegate, 171 Iowa 150, 154 NW 168, AnnCas1917E 332.

Kan.-In re Chapman, 4 Kan. A. 49, 46 P 1014.

La.-Hyde v. Jenkins, 6 La. 427. Mass.-Thompson's Case, 122 Mass. 428, 23 AmR 370; In re Mowry, 112 Mass. 394; Com. v. Moore, 19 Pick. 339; Com. v. Whitney, 10 Pick. 434; v. Sumner, 5 Pick. 360. See In re McHugh, 3 Cush. 452 (a proceeding of a civil nature).

Nev.-Eureka County Bank Habeas Corpus Cases, 35 Nev. 80, 126 P 655, 129 P 308.

N. J.-David v. Blundell, 39 N. J. L. 612 [rev on other grounds 40 N. J. L. 372]; State v. Middlesex, 15 N. J. L. 68; Peltier v. Pennington, 14 N. J. L. 312.

N. Y.-Peo. v. Gill, 85 App. Div. 192, 83 NYS 135 [aff 176 N. Y. 606 mem, 68 NE 1122 mem]; Lowman v. Billington, 65 Misc. 111, 119 NYS 825; Peo. v. Knott, 187 App. Div. 604, 1-6 NYS 321 [aff 228 N. Y. 608, 127 NE 329]; Peo. v. Willett, 15 How Pr 210 [dist U. S. Bank v. Jenkins, 18 Johns. 305]; U. S. Bank v. Jenkins, 18 Johns. 305.

Or.-Norman v. Zieber, 3 Or. 197. Pa.-Hecker v. Jarret, 3 Binn. 404; Com. v. County Prison, 14 Phila. 396, 9 WklyNC 314; Martin's Case, Purdon Dig. (10th ed) p 851.

S. C.-Ex p. Rembert, 82 S. C. 336, 64 SE 150; Gilliam v. McJunkin, 2 S. C. 442.

Vt. In re Cazin, 56 Vt. 297; Ex p. Kellogg, 6 Vt. 509.

Va.-Ex p. Rollins, 80 Va. 314. Eng.-Ex p. Griffiths, 5 B. & Ald. 730, 7 ECL 398, 106 Reprint 1358; Matter of Eggington, 2 E. & B. 717, 75 ECL 717, 118 Reprint 936.

Can.-Ex p. Whitfield, 2 RevdeLegis 337: In re Sanderson, 8 RevLeg 108. Ont.-Graham v. Kingsmill, 6 U. C. Q. B. O. S. 584.

Que. McNeice v. Foss, 9 Que. 64; Ex p. McCaffrey, 25 LCJur 188; Ex p. Healy, 22 LCJur 138, 1 Montr. Leg. N. 103; Ex p. Cutler, 22 LCJur 85; Lebæuf v. Viaux, 18 LCJur 214; Ex p. Fourquin, 16 LCJur 103; Ex p. Donaghue, 9 L. C. 285; Barber v. O'Hara, 8 L. C. 216; Ex p. Stephens. 7 Montr. Q. B. 349; Ex p. Ward, 2 Montr. Q. B. 405.

77: See statutory provisions; and 7 Ex p. Wilson, 6 Cranch (U. S.) 52, 3