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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

Appended to that case, and printed by the Lord Chancellor, in process of time derequest of the members of the court, is an volved upon the high courts of equity and instructive opinion by Judge Betts, deliv- law, and in them this exalted one, of alered in the case of Re Barry, United States lowing and enforcing the writ of habeas circuit court for the southern district of corpus ad subjiciendum, became vested as New York, in which he reached the conclu- an elementary branch of their jurisdiction. sion that a circuit court of the United In the performance, however, of this high States had no jurisdiction in habeas corpus function in respect to the detention of into entertain a controversy as to the custo-fants by parents, etc., the court or judge dy of a child when the father sought to still acts with submission to the original compel the mother to deliver it to him,-a principle, out of which it sprang, that in. question not decided in Re Burrus. In the fants ought to be left where found, or be course of the discussion the learned judge taken from that custody and transferred to points out the origin of the writ as a means some other, at the discretion of the prerogaof relief from arrest or forcible imprison- tive guardian, and according to its opinion ment, and its growth in later use as a of their best interest and safety." means of determining the custody of chil- It was in the exercise of this jurisdiction dren:

as parens patrice that the present case was “There is no reason to doubt that origi- heard and determined. It is the settled docnally the common-law writ was granted trine that in such cases the court exercises a solely in cases of arrest and forcible im- discretion in the interest of the child to deprisonment under color or claim of warrant termine what care and custody are best for of law.

it in view of its age and requirements. "As late as 2 James II. the court ex. Such cases are not decided on the legal right pressly denied its allowance in a case of de- of the petitioner to be relieved from unlawtention or restraint by a private person (Rex ful imprisonment or detention, as in the v. Drake, Comb. 35; 16 Vin. Abr. 213), and case of an adult, but upon the court's view the habeas corpus act of Charles II., which of the best interests of those whose welfare is claimed as the Magna Charta of British requires that they be in custody of one perliberty, has relation only to imprisonment son or another. In such cases the question on criminal charges (3 Bacon, Abr. 438, of personal freedom is not involved except note).

in the sense of a determination as to which "It is not important to inquire at what custodian shall have charge of one not enperiod the writ first was employed to place titled to be freed from restraint. As was infant children under the disposal of courts said by Sharkey, Ch. J., in [Foster v. Alsof law and equity. This was clearly so in ton] 6 How. (Miss.) 472:

) England, anterior to our Revolution (Rex "An infant is not entitled to his freedom; v. Smith, 2 Strange, 982; Rex v. Delaval, an adult is. When a habeas corpus is grant3 Burr. 1434; Blissets's Case, Lofft. 748), ed to an adult, the object is to inquire and the practice has been fully confirmed in whether he is legally restrained of his the continued assertion of the authority by liberty; because if he is not, he must be those courts unto the present day (King v. set free, for the plain reason that by law De Manneville, 5 East, 221; De Manneville he is entitled to his freedom. But if the v. De Manneville, 10 Ves. Jr. 52; Ball v. court is also to set the infant free, they Ball, 2 Sim. 35; Ex parte Skinner, 9 J. B. give him a right to which he is not entitled, Moore, 278; King v. Greenhill, 4 Ad. & El. and deprive the parent or guardian of a 624); and this indifferently, whether the right to which he is entitled; to wit, the interposition of the court is demanded by custody of the infant.” the father or mother (4 Ad. & El. 624, ubi

We think that such considerations as supra; 9 J. B. Moore, 278, ubi supra. these induced Congress to limit the right of

appeal to this court in habeas corpus cases. “The authority to take cognizance of the The discretionary power exercised in rendetention of infants by private persons, not dering the judgment, the ability of local held under claim or color or warrant of law, tribunals to see and hear the witnesses and rests solely in England on the common law. the rival claimants for custody of children, It is one of the eminent prerogatives of the induced, in our opinion, the denial of apCrown, which implies in the monarch the peal in such cases as the one at bar, as disguardianship of infants paramount to that tinguished from those of a different characof their natural parents. The royal pre- ter, where personal liberty is really inrogative, at first exercised personally ad libi- volved, and release from illegal restrainttum by the King (Kendall v. United States, ' a high constitutional and legal right, not resting in the exercise of discretion is See same case below, 70 C. C. A. 452, 138 sought, in which an appeal is given to this Fed. 22. On first appeal, 59 C. C. A. 109, court.

123 Fed. 29. In the present case there was no attempt The facts are stated in the opinion. to illegally wrest the custody of the child Messrs. Charles S. Cushing and William from its lawful guardian while temporarily Grant for plaintiff in error. in the territory of Arizona. The society Mr. Delphin Michael Delmas for defendvoluntarily took the child there with the ants in error. intention that it should remain. Through imposition the child was placed in custody Mr. Justice Day delivered the opinion of of those unfit to receive or maintain con- the court: trol over it, and, as above stated, came into This was an action upon a supersedeas the custody and possession of the respond - bond, brought by the plaintiff in error, ent.

Henry A. Crane, against defendants in error, The child was within the jurisdiction of Cornelius F. Buckley, as principal, and Ruthe court under such circumstances that dolph Spreckles and Timothy Hopkins, as rival claimants of the right of custody might sureties. invoke the jurisdiction of a competent court The bond was given in an action brought of the territory to determine, not the right by Crane against Buckley in the superior of personal freedom, but to which custodian court of Tulare county, California, removed a child of tender years should be committed to the United States circuit court of the Woodworth v. Spring, 4 Allen, 321.

southern district of California. We do not think that the case comes Crane brought suit to foreclose a contract within the provisions of g 1909, permitting for the sale of certain lands to Buckley and an appeal to this court only in cases in for the recovery of possession thereof. Upvolving the question of personal freedom. on answer and cross bill Buckley made the

The appeal will be dismissed for want of defense that the sale was procured by false jurisdiction.

and fraudulent statements and misrepresen

tations. 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.

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 HENRY A. CRANE, Plff. in Err.,

Crane prior to January 1, 1899, the unpaid V.

portion of the purchase price and the interCORNELIUS F BUCKLEY, Rudolph

est thereon, with taxes and costs, Crane Spreckles, and Timothy Hopkins, Dfts.

should convey to Buckley all the said real in Err.

estate, pursuant to the agreement of purAppeal-supersedeas-prosecuting to effect. chase, and it was provided in said decree: A party who, on appeal from a de

“And unless said respondent shall place cree for the recovery of possession of real on file herein some sufficient and satisfacproperty unless the balance of the purchase tory evidence that he has paid, or has tenprice should be paid before January 1, 1899, dered, and is able, ready, and willing secures an extension of the time for such


to pay,

said complainant, Henry payment until November 1, 1899, has so prosecuted his appeal to effect, within the A. Crane, the amounts of money hereinbemeaning of a supersedeas bond to secure fore provided to be paid for the purchase of the adverse party from loss in the use and said property, on or before the 1st day of possession of the premises, as to preclude January, A. D. 1899, it is ordered, adjudged, any recovery on such bond for the use and and decreed that the clerk of this court do, occupation of the property between those on request of said complainant, Henry A. dates. *

Crane, or of his counsel, issue a suitable

and sufficient order or writ to the marshal [No. 58.]

of this court, and under the seal thereof, Argued and submitted October 25, 1906, to remove said respondent, Cornelius F. Decided December 3, 1906.

Buckley, from the possession, use, and occupation of said real property, water ditch


Court of Appeals for the Ninth Circuit place complainant, Henry A. Crane, or his to review a judgment affirming, on a sec- legal representatives, in the exclusive posond writ of error, a judgment of the Cir- session, use and occupation thereof." cuit Court for the Southern District of Cal- This decree was entered on November 16, ifornia in favor of defendant in an action 1898; on December 16, 1898, Buckley apon a supersedeas bond. Affirmed.

pealed 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 Novem, above ber 1, 1899and

tion is such that if the said C. F. Buckley On the first trial of the case in the cir

shall prosecute his appeal to effect, and cuit court a verdict of $5,000 was rendered shall answer all damages and costs that against the present defendant in error, afthave been and shall be awarded against erwards reduced to $3,000. him, if he fails to make his appeal good, This judgment was reversed upon writ of and if he shall answer all damages that error to the circuit court of appeals. 59 C. shall accrue to the said respondent by rea-C. A. 109, 123 Fed. 29. son of the value of the use and occupation Upon a subsequent trial of the case, upof the land and premises from the time of on instructions following the ruling of the said appeal until the delivery of possession circuit court of appeals, a verdict and judgthereof to said Henry A. Crane, and for all ment were rendered in favor of the dewaste committed thereon, then the above fendant in error. Another writ of error obligation to be void, else to remain in full being taken to the circuit court of appeals, force and effect."

this judgment was affirmed, and the plainOctober 2, 1899, the circuit court of ap- tiff in error brought the case here. peals affirmed the decree. On October 19, The question in this case as presented 1899, Buckley having filed a petition for re- here is briefly this: Can the plaintiff in erhearing as to a part of the judgment given ror recover upon the supersedeas bond for October 2, 1899, or for such modification the value of the use and occupation of the thereof as would allow him until November premises in question from January 1, 1899, 1, 1899, within which to make the payments to November 1, 1899? This was the period required, the circuit court of appeals found: for which the circuit court of appeals, upon

“The record does show that the appellant the application for rehearing, modified the made large payments under the contract, decree so far as to extend the right of Buckand that he has made other large expendi- ley, one of the defendants in error, and the tures in the improvements of the property principal in the bond, to remain in posseswhich was the subject of the contract. It sion of the premises, postponing the foreis also true that the sums remaining due closure of his rights therein until the end from the appellant under the contract were of the period named in the extension. The large. These payments, the decree of the bond was given under cover of § 1000 of court below, which was entered on the 16th the Revised Statutes of the United States day of November, 1898, required to be made (U. S. Comp. Stat. 1901, p. 712), which proprior to January 1, 1899, in order that the vides: rights and interests of the appellant in the “Every justice or judge signing a citation property be saved, which were by the de- on any writ of error shall, except in cases cree otherwise forever foreclosed and ended. brought up by the United States or by diUnder the circumstances appearing in the rection of any department of the governrecord this court is of the opinion that it ment, take good and sufficient security that is equitable and just to allow the appellant the plaintiff in error or the appellant shall until the 1st day of November, 1899, within prosecute his writ or appeal to effect, and, · which to make the payments required by if he fail to make his plea good, shall anthe decree from which the appeal is taken, swer all damages and costs where the writ and, accordingly, it is ordered that the is a supersedeas and stays execution, or all judgment of this court entered herein on costs only where it is not a supersedeas the 2d day of October, 1899, be, and here as aforesaid.” by 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

the trial court. The successful party in involved in this suit any right to recover this case, the plaintiff, could not have the for use and occupation other than that bedecree executed, so far as the possession of tween the dates of January 1, 1899, and the property was concerned, after the November 1, 1899. This is the very time supersedeas bond was given, and the pur- during which, by the modified decree entered pose of that instrument was to secure him by virtue of the order of the circuit court. from loss during the time and to the extent of appeals, the foreclosure of the contract that his hand was stayed from action. In was postponed and the defendant in error, order to keep the obligation of the bond it Buckley, permitted to remain in possession was necessary that the plaintiff in error of the premises. should substantially reverse the judgment As we have said, the appeal bond was to or decree in the respects in which the bond secure the plaintiff from loss in the use and was indemnity. As was said by Mr. Chief possession of the premises, unless Buckley Justice Waite, in Gay v. Parpart, 101 U. S. prosecuted his appeal to effect. It is mani391, 392, 25 L, ed. 841:

fest that the effect of the decree in the cir"If, on the final disposition of a writ of cuit court of appeals.was to extend the time error or appeal, the judgment or decree of rightful possession for the period covered brought under review is not substantially in this suit. This right of possession, withreversed, it is affirmed, and the writ of error held from the plaintiff in error by the exor appeal has not been prosecuted with ef- tension awarded in the court of appeals, fect."

was the essence of the thing for which the It is elementary that the obligation of plaintiff in error was indemnified by the sureties upon bonds is strictissimi juris terms of the obligation. We cannot think and not to be extended by implication or en- it makes any legal difference in the liability larged construction of the terms of the con of the sureties upon the bond that Buckley tract entered into. What, then, was the did not pay the balance of the purchase attitude of the case when this appeal bond money within the time of the extension. was given ? The action had been brought to The effect of the decree was to extend the foreclose a contract of purchase. The de- right of possession and to prevent a forefense had proved unavailing. The decree closure of his rights after January 1, 1899, had provided that unless Buckley made the until the date named,—November 1, 1899. payments required by January 1, 1899, his This extended right of possession and postright and interest in the property should ponement of foreclosure to November 1, be forever foreclosed, and a writ should issue 1899, Buckley gained by the appeal, which, to put the plaintiff in possession of the in our view, he thus prosecuted to effect; property.

or, what is another way of saying the same From this decree Buckley appealed, and, thing, to a successful issue upon the very in order to prevent its execution, gave the thing—the wrongful possession of the propbond in suit, which recites that he is de- erty-against which the plaintiff in error sirous of staying the execution of the judg- was indemnified by the terms of the obliment appealed from in so far as it relates gation sued upon. In this view of the case to the possession of the lands and premises the judgment of the Circuit Court of Apinvolved, and as to costs, which are not now peals is affirmed. 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


V. good he shall answer in damages which shall accrue by reason of the value of the use and THEODORE DALCOUR et al., Heirs of

John Forbes, Deceased, et al. occupation of the premises until the delivery of the possession thereof, and for

Appeal—from district court-in private waste committed thereon. The effect of this

land claim cases. bond was to permit Buckley to remain in 1. The appeal required by the act of possession, and to require him to prosecute June 22, 1860 (12 Stat. at L. 85, 87, chap. his appeal to effect; in default of which he 188), § 11, to be taken to the Supreme and his sureties may be subjected to lia- Court of the United States if the decree of

the district court in certain private land bility upon the bond.

What is meant by prosecuting his appeal claim cases is against the United States, to effect? It is an expression substantially meaning of the act of March 3, 1891 (26

is "otherwise provided by law” within the equivalent to prosecuting his appeal with Stat. ať L. 828, chap. 517, U. S. Comp. Stat. success; to make substantial and prevailing 1901, p. 550), § 6, making the circuit court his attempt to reverse the decree or judg- of appeals the proper tribunal for the rement awarded against him.

view of final decisions of the district court It is to be remembered that there is not in other than certain excepted cases, which include those where it is otherwise provid- | Argued October 30 and 31, 1906. Decided ed by law. *

December 3, 1906. Private land claims-rejection of Spanish grant.

PPEAL from the District Court of the 2. Judges of the superior court of West United States for the Southern District Florida were "public officers acting under of Florida to review a decree establishing authority of Congress" within the meaning title under a Spanish land grant. Re. of the proviso in the act of June 22, 1860, versed. § 3, prohibiting commissioners from em

The facts are stated in the opinion. bracing among the Florida land claims

Solicitor General Hoyt and Mr. Robert A. which ought to be confirmed "any claim

Howard for appellant. which has been heretofore presented for confirmation before any board of commission

Messrs. William A. Blount, Henry R. Haters or other public officers acting under au- field, William W. Dewhurst, and A. C. thority of Congress, and rejected as being Blount, Jr., for appellees. fraudulent, or procured or maintained by fraudulent or improper means.”+

Mr. Justice Holmes delivered the opinion Private land claims-rejection of Spanish of the court: grant.

This is a petition to establish title by a 3. A judge of the superior court of West grant of about 1,850,000 acres of land in Florida, acting under the act of May 23, 1828 Florida, brought in the district court under (4 Stat. at L. 284, 285, chap: 70), 3, 6, had the act of June 22, 1860, chap. 188, § 11 (12 jurisdiction to reject a Florida land claim because of an unwarranted alteration in the Stat. at L. 85, 87), extended by act of June date of the registro which would save the 10, 1872, chap. 421 (17 Stat. at L. 378), for grant from invalidity under the treaty of three years from the last date. The petiFebruary 22, 1819 (8 Stat. at L. 258), with tioners had a decree in the district court, Spain, although a proviso to that section and the United States appealed to this excluded him from taking cognizance of any court under the above mentioned § 11. claims annulled by the treaty. Private land claims-rejection of Spanish nied, we will dispose of that question be

As the jurisdiction of this court is degrant.

4. 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 act of March 3, 1891, chap. 517 [26 Stat. at addressed itself to avoiding the treaty of L. 828, U. S. Comp. Stat. 1901, p. 550], the February 22, 1819, with Spain, as well as circuit court of appeals shall exercise apwhen the fraud related to some other fact pellate jurisdiction to review final decisions material to the validity of the claims at in the district courts, etc., in all cases other the time when they were created, were cov than those provided for in the preceding ered by the proviso in the act of June 22, section, “unless otherwise provided by law." 1860, § 3, prohibiting commissioners from embracing among the claims which ought to There is no doubt that this enactment was be confirmed "any claim which has been intended to supersede previous general proheretofore presented for confirmation before visions, and to establish in what cases and any board of commissioners or other public to what courts appeals might be taken from officers acting under authority of Congress, the district courts. The Paquete Habana, and rejected as being fraudulent, or procured 175 U. S. 677, 686, 44 L. ed. 320, 323, 20 Sup. or maintained by fraudulent or improper ct. Rep. 290. But the statute recognizes, in means.”+ Private land claims-rejection of Spanish ates, others where it is "otherwise pro

addition to the exceptions which it enumer

" grant.

5. The rejection of a Florida land claim vided by law.” These words must be taken by a judge of the superior court of West to refer to existing provisions, and not to Florida, acting under the act of May 23, be merely a futile permission to future 1828, § 6, because of an unwarranted altera- legislatures to make a change. They do tion of the date in the registro which would not save every existing provision, of course, save the grant from invalidity under the or the act would fail of its purpose. But treaty of February 22, 1819, with Spain, they save some. There is no case to which brings the case within the proviso of the they can apply more clearly than one in act of June 22, 1860, § 3, prohibiting com- which, by reason of its interest, the United missioners from embracing among the claims which ought to be confirmed "any claim States has manifested its will to submit to which has been heretofore presented for no judgment not sanctioned by its highest confirmation before any board of commis- court. The language of $ 11 is not the usual sioners or other public officers acting under permission to appeal, such as existed in the authority of Congress, and rejected as be act of March 3, 1851, chap. 41, SS 9, 10 (9 ing fraudulent, or procured or maintained

Stat. at L. 632, 633), referred to in Gwin v. by fraudulent or improper means.”+

United States, 184 U. S. 669, 46 L. ed. 741, [No. 69.]

22 Sup. Ct. Rep. 526. See also act of August *Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, $ 1031. +Ed. Note.-For cases in point, see vol. 41, Cent. Dig. Public Lands, $ 676.

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