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sue a writ of habeas corpus to restore an | 12 Pet. 630, 9 L. ed. 1223), and afterwards, infant to the custody of its father when for his relief, by special officers, as the Lord unlawfully detained by its grandparents.
High Constable, the Lord High Admiral, and the Lord Chancellor, in process of time devolved upon the high courts of equity and
Appended to that case, and printed by request of the members of the court, is an instructive opinion by Judge Betts, deliv-law, and in them this exalted one, of alered in the case of Re Barry, United States circuit court for the southern district of New York, in which he reached the conclusion that a circuit court of the United States had no jurisdiction in habeas corpus to entertain a controversy as to the custody of a child when the father sought to compel the mother to deliver it to him,-a question not decided in Re Burrus. In the course of the discussion the learned judge points out the origin of the writ as a means of relief from arrest or forcible imprisonment, and its growth in later use as a means of determining the custody of children:
"There is no reason to doubt that originally the common-law writ was granted solely in cases of arrest and forcible imprisonment under color or claim of warrant of law.
"As late as 2 James II. the court expressly denied its allowance in a case of detention or restraint by a private person (Rex v. Drake, Comb. 35; 16 Vin. Abr. 213), and the habeas corpus act of Charles II., which is claimed as the Magna Charta of British liberty, has relation only to imprisonment on criminal charges (3 Bacon, Abr. 438, note).
"It is not important to inquire at what period the writ first was employed to place infant children under the disposal of courts of law and equity. This was clearly so in England, anterior to our Revolution (Rex v. Smith, 2 Strange, 982; Rex v. Delaval, 3 Burr. 1434; Blissets's Case, Lofft. 748), and the practice has been fully confirmed in the continued assertion of the authority by those courts unto the present day (King v. De Manneville, 5 East, 221; De Manneville v. De Manneville, 10 Ves. Jr. 52; Ball v. Ball, 2 Sim. 35; Ex parte Skinner, 9 J. B. Moore, 278; King v. Greenhill, 4 Ad. & El. 624); and this indifferently, whether the interposition of the court is demanded by the father or mother (4 Ad. & El. 624, ubi supra; 9 J. B. Moore, 278, ubi supra.
"The authority to take cognizance of the detention of infants by private persons, not held under claim or color or warrant of law, rests solely in England on the common law. It is one of the eminent prerogatives of the Crown, which implies in the monarch the guardianship of infants paramount to that of their natural parents. The royal prerogative, at first exercised personally ad libitum by the King (Kendall v. United States,
lowing and enforcing the writ of habeas corpus ad subjiciendum, became vested as an elementary branch of their jurisdiction. In the performance, however, of this high function in respect to the detention of infants by parents, etc., the court or judge still acts with submission to the original principle, out of which it sprang, that infants ought to be left where found, or be taken from that custody and transferred to some other, at the discretion of the prerogative guardian, and according to its opinion of their best interest and safety."
It was in the exercise of this jurisdiction as parens patria that the present case was heard and determined. It is the settled doctrine that in such cases the court exercises a discretion in the interest of the child to determine what care and custody are best for it in view of its age and requirements. Such cases are not decided on the legal right of the petitioner to be relieved from unlawful imprisonment or detention, as in the, case of an adult, but upon the court's view of the best interests of those whose welfare requires that they be in custody of one person or another. In such cases the question of personal freedom is not involved except in the sense of a determination as to which custodian shall have charge of one not entitled to be freed from restraint. As was said by Sharkey, Ch. J., in [Foster v. Alston] 6 How. (Miss.) 472:
"An infant is not entitled to his freedom; an adult is. When a habeas corpus is granted to an adult, the object is to inquire whether he is legally restrained of his liberty; because if he is not, he must be set free, for the plain reason that by law he is entitled to his freedom. But if the court is also to set the infant free, they give him a right to which he is not entitled, and deprive the parent or guardian of a right to which he is entitled; to wit, the custody of the infant."
We think that such considerations as these induced Congress to limit the right of appeal to this court in habeas corpus cases. The discretionary power exercised in rendering the judgment, the ability of local tribunals to see and hear the witnesses and the rival claimants for custody of children, induced, in our opinion, the denial of appeal in such cases as the one at bar, as distinguished from those of a different character, where personal liberty is really involved, and release from illegal restrainta high constitutional and legal right, not
resting in the exercise of discretion-is sought, in which an appeal is given to this court.
In the present case there was no attempt to illegally wrest the custody of the child from its lawful guardian while temporarily in the territory of Arizona. The society voluntarily took the child there with the intention that it should remain. Through imposition the child was placed in custody of those unfit to receive or maintain control over it, and, as above stated, came into the custody and possession of the respondent.
The child was within the jurisdiction of the court under such circumstances that rival claimants of the right of custody might invoke the jurisdiction of a competent court of the territory to determine, not the right of personal freedom, but to which custodian a child of tender years should be committed. Woodworth v. Spring, 4 Allen, 321.
We do not think that the case comes within the provisions of § 1909, permitting an appeal to this court only in cases involving the question of personal freedom. The appeal will be dismissed for want of jurisdiction.
See same case below, 70 C. C. A. 452, 138 Fed. 22. On first appeal, 59 C. C. A. 109, 123 Fed. 29.
The facts are stated in the opinion. Messrs. Charles S. Cushing and William Grant for plaintiff in error.
Mr. Delphin Michael Delmas for defendants in error.
Mr. Justice Day delivered the opinion of the court:
This was an action upon a supersedeas bond, brought by the plaintiff in error, Henry A. Crane, against defendants in error, Cornelius F. Buckley, as principal, and Rudolph Spreckles and Timothy Hopkins, as sureties.
The bond was given in an action brought by Crane against Buckley in the superior court of Tulare county, California, removed to the United States circuit court of the southern district of California.
Crane brought suit to foreclose a contract for the sale of certain lands to Buckley and for the recovery of possession thereof. Upon answer and cross bill Buckley made the defense that the sale was procured by false and fraudulent statements and misrepresentations. The court found for complainant,
Mr. Justice Brewer took no part in the Crane; that the charges of fraud were not decision of this case.
Appeal-supersedeas-prosecuting to effect.
A party who, on appeal from a decree for the recovery of possession of real property unless the balance of the purchase price should be paid before January 1, 1899, secures an extension of the time for such payment until November 1, 1899, has so prosecuted his appeal to effect, within the meaning of a supersedeas bond to secure the adverse party from loss in the use and possession of the premises, as to preclude any recovery on such bond for the use and occupation of the property between those dates. *
sustained; that the rights, interests, and claims of Buckley in and to the property should be foreclosed, subject to the equitable privilege that if Buckley should pay to Crane prior to January 1, 1899, the unpaid portion of the purchase price and the interest thereon, with taxes and costs, Crane should convey to Buckley all the said real estate, pursuant to the agreement of purchase, and it was provided in said decree:
"And unless said respondent shall place on file herein some sufficient and satisfactory evidence that he has paid, or has tendered, and is able, ready, and willing to pay, to said complainant, Henry A. Crane, the amounts of money hereinbefore provided to be paid for the purchase of said property, on or before the 1st day of January, A. D. 1899, it is ordered, adjudged, and decreed that the clerk of this court do, on request of said complainant, Henry A. Crane, or of his counsel, issue a suitable and sufficient order or writ to the marshal of this court, and under the seal thereof,
Argued and submitted October 25, 1906, to remove said respondent, Cornelius F.
Decided December 3, 1906.
IN ERROR to the United States Circuit Court of Appeals for the Ninth Circuit to review a judgment affirming, on a second writ of error, a judgment of the Circuit Court for the Southern District of California in favor of defendant in an action on a supersedeas bond. Affirmed.
Buckley, from the possession, use, and occupation of said real property, water ditches, water rights, and rights of way, and to place complainant, Henry A. Crane, or his legal representatives, in the exclusive possession, use and occupation thereof."
This decree was entered on November 16, 1898; on December 16, 1898, Buckley appealed from the decree to the circuit court
*Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 4753.
of appeals, and a supersedeas bond in the, fied, the decree is affirmed.'" 38 C. C. A. sum of $8,000, being the one in suit, was 688, 97 Fed. 980. given. This bond is as follows:
Upon mandate from the circuit court of "Whereas, the said respondent and cross-appeals, this modification was entered in complainant is desirous of staying the exe- the circuit court. cution of the said judgment so appealed Possession of the property was not in from in so far as it relates to the posses- fact delivered till November 4, 1899. After sion of the land and premises involved there- the proceedings above recited, action was in, and is desirous of staying the execution commenced on the bond to recover $8,000, of said judgment or decree, so appealed the penalty thereof, for the alleged value from, in so far as it relates to the costs of the use and occupation of the premises awarded to complainant therein: by Buckley, between January 1 and November 1, 1899, and waste.
"Now, the condition of the above obligation is such that if the said C. F. Buckley shall prosecute his appeal to effect, and shall answer all damages and costs that have been and shall be awarded against him, if he fails to make his appeal good, and if he shall answer all damages that shall accrue to the said respondent by reason of the value of the use and occupation of the land and premises from the time of said appeal until the delivery of possession thereof to said Henry A. Crane, and for all waste committed thereon, then the above obligation to be void, else to remain in full force and effect."
On the first trial of the case in the circuit court a verdict of $5,000 was rendered against the present defendant in error, afterwards reduced to $3,000.
This judgment was reversed upon writ of error to the circuit court of appeals. 59 C. C. A. 109, 123 Fed. 29.
Upon a subsequent trial of the case, upon instructions following the ruling of the circuit court of appeals, a verdict and judgment were rendered in favor of the defendant in error. Another writ of error being taken to the circuit court of appeals, this judgment was affirmed, and the plaintiff in error brought the case here.
The question in this case as presented here is briefly this: Can the plaintiff in error recover upon the supersedeas bond for the value of the use and occupation of the premises in question from January 1, 1899, to November 1, 1899? This was the period for which the circuit court of appeals, upon the application for rehearing, modified the decree so far as to extend the right of Buckley, one of the defendants in error, and the principal in the bond, to remain in possession of the premises, postponing the foreclosure of his rights therein until the end of the period named in the extension. The bond was given under cover of § 1000 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, p. 712), which provides:
October 2, 1899, the circuit court of appeals affirmed the decree. On October 19, 1899, Buckley having filed a petition for rehearing as to a part of the judgment given October 2, 1899, or for such modification thereof as would allow him until November 1, 1899, within which to make the payments required, the circuit court of appeals found: "The record does show that the appellant made large payments under the contract, and that he has made other large expenditures in the improvements of the property which was the subject of the contract. It is also true that the sums remaining due from the appellant under the contract were large. These payments, the decree of the court below, which was entered on the 16th day of November, 1898, required to be made prior to January 1, 1899, in order that the rights and interests of the appellant in the property be saved, which were by the decree otherwise forever foreclosed and ended. Under the circumstances appearing in the record this court is of the opinion that it is equitable and just to allow the appellant until the 1st day of November, 1899, within which to make the payments required by the decree from which the appeal is taken, and, accordingly, it is ordered that the judgment of this court entered herein on the 2d day of October, 1899, be, and hereby is, so modified as to read: 'Cause re- The object and purpose of this section manded to the court below, with directions and the bond given in pursuance thereof is to substitute for the 1st day of January, to indemnify the party prevailing in the 1899, the 1st day of November, 1899, with- original suit against loss in the respects in which the payments therein provided for stated in the bond, by reason of an inare permitted to be made, and, as so modi-effectual attempt to reverse the holding of
"Every justice or judge signing a citation on any writ of error shall, except in cases brought up by the United States or by direction of any department of the government, take good and sufficient security that the plaintiff in error or the appellant shall prosecute his writ or appeal to effect, and, if he fail to make his plea good, shall answer all damages and costs where the writ is a supersedeas and stays execution, or all costs only where it is not a supersedeas as aforesaid."
successful party in | involved in this suit any right to recover for use and occupation other than that between the dates of January 1, 1899, and November 1, 1899. This is the very timeduring which, by the modified decree entered by virtue of the order of the circuit court. of appeals, the foreclosure of the contract was postponed and the defendant in error, Buckley, permitted to remain in possession of the premises.
the trial court. The this case, the plaintiff, could not have the decree executed, so far as the possession of the property was concerned, after the supersedeas bond was given, and the purpose of that instrument was to secure him from loss during the time and to the extent that his hand was stayed from action. In order to keep the obligation of the bond it was necessary that the plaintiff in error should substantially reverse the judgment or decree in the respects in which the bond was indemnity. As was said by Mr. Chief Justice Waite, in Gay v. Parpart, 101 U. S. 391, 392, 25 L. ed. 841:
"If, on the final disposition of a writ of error or appeal, the judgment or decree brought under review is not substantially reversed, it is affirmed, and the writ of error or appeal has not been prosecuted with effect."
It is elementary that the obligation of sureties upon bonds is strictissimi juris and not to be extended by implication or enlarged construction of the terms of the contract entered into. What, then, was the attitude of the case when this appeal bond was given? The action had been brought to foreclose a contract of purchase. The defense had proved unavailing. The decree had provided that unless Buckley made the payments required by January 1, 1899, his right and interest in the property should be forever foreclosed, and a writ should issue to put the plaintiff in possession of the property.
From this decree Buckley appealed, and, in order to prevent its execution, gave the bond in suit, which recites that he is desirous of staying the execution of the judgment appealed from in so far as it relates to the possession of the lands and premises involved, and as to costs, which are not now in controversy. Then comes the condition of the obligation, that the appellant shall prosecute his appeal to effect, and the undertaking that if he fails to make his appeal good he shall answer in damages which shall accrue by reason of the value of the use and occupation of the premises until the delivery of the possession thereof, and for waste committed thereon. The effect of this bond was to permit Buckley to remain in possession, and to require him to prosecute his appeal to effect; in default of which he and his sureties may be subjected to liability upon the bond.
What is meant by prosecuting his appeal to effect? It is an expression substantially equivalent to prosecuting his appeal with success; to make substantial and prevailing his attempt to reverse the decree or judgment awarded against him.
It is to be remembered that there is not
As we have said, the appeal bond was to secure the plaintiff from loss in the use and possession of the premises, unless Buckley prosecuted his appeal to effect. It is manifest that the effect of the decree in the circuit court of appeals. was to extend the time of rightful possession for the period covered in this suit. This right of possession, withheld from the plaintiff in error by the extension awarded in the court of appeals, was the essence of the thing for which the plaintiff in error was indemnified by the terms of the obligation. We cannot think it makes any legal difference in the liability of the sureties upon the bond that Buckley did not pay the balance of the purchase money within the time of the extension. The effect of the decree was to extend the right of possession and to prevent a foreclosure of his rights after January 1, 1899, until the date named,-November 1, 1899. This extended right of possession and postponement of foreclosure to November 1,. 1899, Buckley gained by the appeal, which, in our view, he thus prosecuted to effect; or, what is another way of saying the same thing, to a successful issue upon the very thing-the wrongful possession of the property—against which the plaintiff in error was indemnified by the terms of the obligation sued upon. In this view of the case the judgment of the Circuit Court of Appeals is affirmed.
UNITED STATES, Appt.,
THEODORE DALCOUR et al., Heirs of John Forbes, Deceased, et al.
Appeal from district court-in private land claim cases.
1. The appeal required by the act of June 22, 1860 (12 Stat. at L. 85, 87, chap. 188), § 11, to be taken to the Supreme Court of the United States if the decree of the district court in certain private land claim cases is against the United States, meaning of the act of March 3, 1891 (26 is "otherwise provided by law" within the Stat. at L. 828, chap. 517, U. S. Comp. Stat. 1901, p. 550), § 6, making the circuit court of appeals the proper tribunal for the review of final decisions of the district court in other than certain excepted cases, which
include those where it is otherwise provid- | Argued October 30 and 31, 1906. Decided ed by law.*
Private land claims-rejection of Spanish grant.
2. Judges of the superior court of West Florida were "public officers acting under authority of Congress" within the meaning of the proviso in the act of June 22, 1860, § 3, prohibiting commissioners from embracing among the Florida land claims which ought to be confirmed "any claim which has been heretofore presented for confirmation before any board of commissioners or other public officers acting under authority of Congress, and rejected as being fraudulent, or procured or maintained by fraudulent or improper means."+ Private land claims-rejection of Spanish grant.
3. A judge of the superior court of West Florida, acting under the act of May 23, 1828 (4 Stat. at L. 284, 285, chap. 70), § 6, had jurisdiction to reject a Florida land claim because of an unwarranted alteration in the date of the registro which would save the grant from invalidity under the treaty of February 22, 1819 (8 Stat. at L. 258), with Spain, although a proviso to that section excluded him from taking cognizance of any claims annulled by the treaty. Private land claims-rejection of Spanish
December 3, 1906.
APPEAL from the District Court of the
United States for the Southern District of Florida to review a decree establishing title under a Spanish land grant. Reversed.
The facts are stated in the opinion. Solicitor General Hoyt and Mr. Robert A. Howard for appellant.
Messrs. William A. Blount, Henry R. Hatfield, William W. Dewhurst, and A. C. Blount, Jr., for appellees.
Mr. Justice Holmes delivered the opinion of the court:
This is a petition to establish title by a grant of about 1,850,000 acres of land in Florida, brought in the district court under the act of June 22, 1860, chap. 188, § 11 (12 Stat. at L. 85, 87), extended by act of June 10, 1872, chap. 421 (17 Stat. at L. 378), for three years from the last date. The petitioners had a decree in the district court, and the United States appealed to this court under the above mentioned § 11.
As the jurisdiction of this court is denied, we will dispose of that question be4. Florida land claims which previously fore going further into the facts. The had been rejected as fraudulent or main-ground of the denial is that by § 6 of the tained by improper means, when the fraud addressed itself to avoiding the treaty of February 22, 1819, with Spain, as well as when the fraud related to some other fact material to the validity of the claims at the time when they were created, were covered by the proviso in the act of June 22, 1860, § 3, prohibiting commissioners from embracing among the claims which ought to be confirmed "any claim which has been heretofore presented for confirmation before any board of commissioners or other public officers acting under authority of Congress, and rejected as being fraudulent, or procured or maintained by fraudulent or improper means."†
Private land claims-rejection of Spanish grant.
5. The rejection of a Florida land claim by a judge of the superior court of West Florida, acting under the act of May 23, 1828, § 6, because of an unwarranted alteration of the date in the registro which would save the grant from invalidity under the treaty of February 22, 1819, with Spain, brings the case within the proviso of the act of June 22, 1860, § 3, prohibiting commissioners from embracing among the claims which ought to be confirmed "any claim which has been heretofore presented for confirmation before any board of commissioners or other public officers acting under authority of Congress, and rejected as being fraudulent, or procured or maintained by fraudulent or improper means."+
*Ed. Note.-For cases in point, see vol. 13, tEd. Note.-For cases in point, see vol. 41,
act of March 3, 1891, chap. 517 [26 Stat. at L. 828, U. S. Comp. Stat. 1901, p. 550], the circuit court of appeals shall exercise appellate jurisdiction to review final decisions in the district courts, etc., in all cases other than those provided for in the preceding section, "unless otherwise provided by law." There is no doubt that this enactment was intended to supersede previous general provisions, and to establish in what cases and to what courts appeals might be taken from the district courts. The Paquete Habana, 175 U. S. 677, 686, 44 L. ed. 320, 323, 20 Sup. Ct. Rep. 290. But the statute recognizes, in addition to the exceptions which it enumerates, others where it is "otherwise provided by law." These words must be taken to refer to existing provisions, and not to be merely a futile permission to future legislatures to make a change. They do not save every existing provision, of course, or the act would fail of its purpose. But they save some. There is no case to which they can apply more clearly than one in which, by reason of its interest, the United States has manifested its will to submit to no judgment not sanctioned by its highest court. The language of § 11 is not the usual permission to appeal, such as existed in the act of March 3, 1851, chap. 41, §§ 9, 10 (9 Stat. at L. 632, 633), referred to in Gwin v. United States, 184 U. S. 669, 46 L. ed. 741, 22 Sup. Ct. Rep. 526. See also act of August Cent. Dig. Courts, § 1031. Cent. Dig. Public Lands, § 676.