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1895

WHITTEN V. TOMLINSON.

Wood v. Brush ("Re Wood") 140 U. S. 278 (35: 505); Ex parte Fonda, 117 U. S. 516 (29: 994); Ex parte Frederich, 149 U. S. 70, 75 (37: 653, 656).

It must be presumed that the governor of the state of Massachusetts surrendered the petitioner upon sufficient evidence that he was a fugitive from justice.

Ex parte Reggel, 114 U. S. 642 (29: 250); Mahon v. Justice, 127 U. S. 700 (32: 283); Ker v. Illinois, 119 U. S. 436 (30: 421).

Mr. Justice Gray delivered the opinion of the court:

By the judicial system of the United States, established by Congress under the power con ferred upon it by the Constitution, the juris diction of the courts of the several states has not been controlled or interfered with, except so far as necessary to secure the supremacy of the Constitution, laws, and treaties of the United States.

With this end, three different methods have been provided by statute for bringing before the courts of the United States proceedings begun in the courts of the states.

First. From the earliest organization of the courts of the United States, final judgments,

no case extend to prisoners in jail, unless when they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify." 1 Stat. at L. 81. Under that act, no writ of habeas corpus, except ad testificandum, could be issued in the case of a prisoner in jail under commitment by a court or magistrate of a state. Ex parte Dorr, 44 U. S. 3 How. 103 [11:514]; Ex parte Burrus, 136 U. S. 586, 593 [34: 500, 503].

By subsequent acts of Congress, however, the power of the courts of the United States to issue writs of habeas corpus of prisoners in jail has been extended to the case of any person in custody for an act done or omitted in pursuance of a law of the United States, or of an order or process of a court or judge thereof; or in custody in violation of the Constitution or of a law or treaty of the United States, or who, being a subject or citizen of and domiciled in a foreign state, is in custody for an act done or omitted under any right or exemption claimed under a foreign state, and depending upon the law of nations. Acts of March 2, 1833 (4) Stat. at L. 634, chap. 57, § 7); August 29, 1842 (5 Stat. at L. 539, chap. 257); Febru28, § 1);

ary 5, 1867 (14 Stat. at L. 385, chap. rendered by

whether in civil criminal cases, or
the highest court of a state in which a decision
in the case could be had, against a right special-
ly set up or claimed under the Constitution,
laws, or treaties of the United States, may be
re examined and reversed or affirmed by this
court on writ of error. Acts of September 24,
1789, chap. 20, § 25 (1 Stat. at L. 85); Febru-
ary 5, 1867, chap. 28, § 2 (14 Stat, at L. 386);
U. S. Rev. Stat. § 709; Martin v. Hunter, 14
U. S. 1 Wheat. 304 [4:97]; Cohensv. Virginia,
19 U. S. 6 Wheat. 264 [5:257]. Such appel-
late jurisdiction is expressly limited to cases in
which the decision of the state court is against
the right claimed under the Constitution, laws,
or treaties of the United States, because, when
the decision of that court is in favor of such a
right, no revision by this court is necessary to
protect the national government in the exer-
cise of its rightful powers. Gordon v. Cald-
cleugh, 7 U. S. 3 Cranch, 268 [2: 436]; Mont-
gomery v. Hernandez, 25 U. S. 12 Wheat. 129
[6: 575]; Commonwealth Bank of Kentucky v.
Griffith, 39 U. S. 14 Pet. 56, 58 [10: 352, 353];
Missouri v. Andriano, 138 U. S. 496, 500, 501
[34: 1012, 1014].

239] *Second. By the judiciary act of 1789 the only other way of transferring a case from a state court to a court of the United States was under section 12, by removal into the circuit court of the United States, before trial, of civil actions against aliens or between citizens of different states. 1 Stat. at L. 79. Such right of removal for trial has been regulated and extended to cases arising under the Constitution, laws, or treaties of the United States, by successive acts of Congress, which need not be particularly referred to, inasmuch as the present case is not one of such a removal.

Third. By section 14 of the old judiciary

U. S. Rev. Stat. § 753.

By the existing statutes, this court and the circuit and district courts and any justice or judge thereof, have power *to grant writs [240 of habeas corpus for the purpose of inquiring into the cause of restraint or liberty of any prisoner in jail, who "is in custody in violation of the Constitution or of a law or treaty of the United States;" and "the court or justice or judge to whom the application is made shall forthwith award a writ of habeas corpus, unless it appears from the petition itself that the party is not entitled thereto;" and "shall proceed in a summary way to determine the facts of the case, by hearing the testimony and arguments, and thereupon to dispose of the party as law and justice may require." U. S. Rev. Stat. §§ 751-755, 761.

The power thus granted to the courts and judges of the United States clearly extends to prisoners held in custody, under the authority of a state, in violation of the Constitution, laws, or treaties of the United States. the exercise of this power the courts of the United States are not bound to discharge by writ of habeas corpus every such prisoner.

But in

The principles which should govern their action in this matter were stated, upon great consideration, in the leading case of Ex parte Royall, 117 Ú. S. 241 [29: 868], and were repeated in one of the most recent cases upon the subject, as follows:

"We cannot suppose that Congress intended to compel those courts, by such means, to draw to themselves, in the first instance, the control of all criminal prosecutions commenced in the state courts exercising authority within the same territorial limits, where the accused claims that he is held in custody

act, the courts of the United States were au- in violation of the Constitution of the United

thorized, in general terms, to issue writs of habeas corpus and other writs necessary for the exercise of their respective jurisdictions: "provided, that writs of habeas corpus shall in

States. The injunction to hear the case summarily, and thereupon 'to dispose of the party as law and justice require,' does not deprive the court of discretion as to the time and mode

411

in which it will exert the powers conferred | port within the state, was contrary to the pro upon it. That discretion should be exercised visions of a treaty between the United States in the light of the relations existing, under our and the country to which the vessel belonged. system of government, between the judicial tribunals of the Union and of the states, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution.

Where a person is in custody, under process from a state court of or241]iginal *jurisdiction, foran alleged offense against the laws of such state, and it is claimed that he is restrained of his liberty in violation of the Constitution of the United States, the circuit court bas a discretion whether it will discharge him upon babeas corpus in advance of his trial in the court in which he is indicted; that discretion, however, to be subordinated to any special circumstances requiring immediate action. When the state court shall have finally acted upon the case, the circuit court has still a discretion whether, under all the circumstances then existing, the accused, if convicted, shall be put to his writ of error from the high est court of the state, or whether it will pro ceed, by writ of habeas corpus, summarily to determine whether the petitioner is restrained of his liberty in violation of the Constitution of the United States." Ex parte Royall, 117 U. S. 241, 251-253 [29:868,871, 872]; New York v. Eno, 155 U. S. 89, 93-95 [39:80, 82].

In Ex parte Royall and in New York v. Eño it was recognized that in cases of urgency, such as those of prisoners in custody, by authority of a state, for an act done or omitted to be done in pursuance of a law of the United States, or of an order or process of a court of the United States, or otherwise involving the authority and operations of the general government or its relations to foreign nations, the courts of the United States should interpose by writ of habeas corpus.

Such an exceptional case was Cunningham ▼. Neagle ("Re Neagle") 135 U. S. 1 [34: 55], in which a deputy marshal of the United States, charged under the Constitution and laws of the United States with the duty of guarding and protecting a judge of a court of the United States, and of doing whatever might be neces sary for that purpose, even to the taking of hu man life, was discharged on habeas corpus from custody under commitment by a magistrate of a state on a charge of homicide committed in the performance of that duty.

Such, also, was Thomas v. Loney ("Re Loney") 184 U. S. 372 [33:949), in which a person arrested by order of a magistrate of a state, for perjury in testimony given in the case of a contested congressional election, was discharged on habeas corpus because a charge of such perjury was within the exclusive cognizance 242] of the courts of the *United States, and to permit it to be prosecuted in the state courts would greatly impede and embarrass the ad ministration of justice in a national tribunal. Such, again, was Mali v. Hudson County Jail Keeper ("Wildenhus Case") 120 U. S. 1 [30: 565], in which the question was decided on habeas corpus whether an arrest, under au thority of a state, of one of the crew of a for eign merchant vessel charged with the com mission of a crime on board of her while in a

But, except in such peculiar and urgent cases, the courts of the United States will not discharge the prisoner by habeas corpus in ad.. vance of a final determination of his case in the courts of the state; and, even after such final determination in those courts, will generally leave the petitioner to the usual and orderly course of proceeding by writ of error from this court. Ex parte Royall, 117 U. S. 241 [29: 869); Ex parte Fonda, 117 U. S. 516 [29: 994]; Duncan v. McCall ("Re Duncan") 139 U S. 449 [35: 219]; Wood v. brush ("Re Wood") 140 U. S. 278 [35: 505]; Jugiro v. Brush ("Re Jugiro") 140 U. S. 291 [35:510]; Cook v. Hart, 146 U. S. 183 136: 934]; Ex parte Frederich. 149 U. S. 70 [37: 653]; Nero York v. Eno, 155 U. S. 89 [39: 80]; Pepke v. Cronan, 155 U. S. 100 [39; 84]; Bergemann v. Backer, 157 U. S. 655 [39: 845].

In a petition for a writ of habeas corpus, verified by the oath of the petitioner, as required by U. S. Rev. Stat. § 754, facts duly alleged may be taken to be true, unless denied by the return or controlled by other evidence. But no allegation of fact in the petition can be assumed to be admitted, unless distinct and unambiguous.

The facts upon which the lawfulness of the imprisonment of this petitioner depends are obscurely and imperfectly presented in his petition and in the record transmitted to this court.

The general allegations in the petition, that the petitioner is detained in violation of the Constitution and laws of the United States, and of the Constitution and laws of the state of Connecticut, and is held without due process of law, are averiments of mere conclusions of law and not of matters of fact. Re Cuddy, 131 U. S. 280, 286 [33: 154, 157].

*The petition begins by alleging that [243 the petitioner is a prisoner confined by the sheriff of the county of New Haven in the county jail for a supposed criminal offense, to wit, the crime of murder in the second degree, and that his imprisonment is by virtue of a war rant, a copy whereof is in the possession of the sheriff. It also alleges that the petitioner was a citizen of Massachusetts, and was extradited from that state for said alleged crime in January, 1895. So far, certainly, no unlawful imprisonment is shown.

The allegation that in August and September, 1893, he was tried before a local court in New Haven upon the same charge, and, upon a full hearing, was discharged by the court, would seem to point to a bearing and discharge upon an application for his committal to jail to await prosecution, rather than to a formal trial and acquittal: and, whatever effect it might have if pleaded to a subsequent indictment, affords no ground for his discharge on habeas corpus. Ex parte Bigelow, 113 U. S. 328 [28: 1005]; Re Belt, 159 U. S. 95 [ante, 88].

It is then alleged that he remained in New Haven during at least two sessions of the grand jury, and then, early in 1894, removed to Massachusetts; and that in January, 1895, he was arrested in Massachusetts, and brought to New Haven upon a warrant of extradition issued by the governor of Massachusetts upon the de

mand of the governor of Connecticut, alleging that an indictment for murder had been found against him by the grand jury of the county of New Haven. These allegations are immaterial, except as introductory to the remaining allegations of the petition.

One of these allegations is "that no indictment was ever found against him by any grand jury sitting at any time within the state of Connecticut, nor no indictment as and for a true bill ever was presented by any grand jury in said state of Connecticut against him, which he is ready to verify and prove, and any pre- | tended indictment was found by mistake or misconception, and was not their true verdict or finding."

It is not alleged that it appears by the records of the court that no indictment was presented by the grand jury; and it is by no means clear that 244] it was intended to allege anything *more than that an indictment, actually presented by the grand jury to the court, lacked the words "a true bill," and was found by the grand jury by mistake and misconception. Such matters are proper subjects of inquiry in the courts of the state, but afford no ground for interposition by the courts of the United States by writ of habeas corpus. Wood v. Brush ("Re Wood") 140 U. S. 278 [35: 505]; Re Wilson, 140 U. S. 575 [35: 513].

The only other allegation in the petition is that the petitioner was not, at the time of his extradition from Massachusetts, a fugitive from the justice of Connecticut.

The record, indepedently of the opinion of the circuit court, does not show what, if any, evidence was introduced at the hearing upon which the writ of habeas corpus was discharged and the prisoner left in custody. The case was heard by the circuit court, and not by the district judge at chambers or out of court. Had it been so heard by him, there could have been no appeal to this court from his decision. U. S Rev. Stat. §§ 751, 752, 764; Act of March 3, 1885 (23 Stat. at L. 437, chap. 353); Carper. Fitzgerald, 121 U. S. 87 [30: 882]; Lambert v. Barrett, 157 U. S. 697 [39: 865]; The subsequent correspondence betwen the district judge and the petitioner's counsel had no proper place in the record of the court, and it does not appear that the judge intended or expected his letter to be filed or recorded. In that letter he did no more than express his wil lingness that the record should be amended, provided it could properly be done. It does Dot appear that the judge afterwards allowed, or was requested to allow, any amendment of the record or of the appeal; and the petitioner or bis counsel could not amend either the record or the appeal by his own act, without leave of the judge.

If, in order to ascertain what was proved or offered to be proved at the hearing, we turn to the opinion filed in the court below and sent up with the record, it thereby appears that the petitioner offered to prove that the indictment against him was procured by some mistake of the grand jury, and that he was not in fact a fugitive from justice; and that the judge assumed, for the purpose of the disposition of the writ of habeas corpus, that all the allegations of the petition were true.

245) *But if the opinion can be referred to as showing part of what took place at the hearing,

it may likewise be referred to as showing other matters then before the court, and especially the proceedings for extradition.

As to those proceedings, the opinion (consistently with the allegations of the petition, so far as anything upon the subject is distinctly and unequivocally alleged therein) not only states, as uncontroverted facts, that the petitioner was arrested in Massachusetts, and brought into Connecticut under a warrant of extradition issued by the governor of Massachusetts upon a requisition of the governor of Connecticut, accompanied by a certified copy of the indictment and by an affidavit that the petitioner was a fugitive from justice; but expressly says that it was not denied that the demand upon the executive authority of Massachusetts, and his action thereon, were proper in form.

A warrant of extradition of the governor of a state, issued upon the requisition of the governor of another state, accompanied by a copy of an indictment, is prima facie evidence, at least, that the accused had been indicted and was a fugitive from justice, and, when the court in which the indictment was found has jurisdiction of the offense (which there is nothing in this case to impugn), is sufficient to make it the duty of the courts of the United States to decline interposition by writ of habeas corpus, and to leave the question of the law. fulness of the detention of the prisoner in the state in which he was indicted to be inquired into and determined, in the first instance, by the courts of the state which are empowered and obliged, equally with the courts of the United States, to recognize and uphold the supremacy of the Constitution and laws of the United States. Robb v. Connolly, 111 U. S. 624 [28: 542]; Ex parte Reggel, 114 U. S. 643 [29: 250]; Roberts v. Reilly, 116 U. S. 80 [29: 544]; Cook v. Hart, 146 U. S. 183 [36:934]; Pearce v. Teras, 155 U. S. 311 [39: 164].

The return of the sheriff to the writ of habeas corpus does not (as it might well have done) set forth the indictment and the warrant of extradition as grounds for the detention of the prisoner. But any defect in the return in this respect affords no reason why the courts [246 of the United States should take the prisoner out of the custody of the authorities of the state.

The return does show that the petitioner is held in custody by the sheriff by virtue of a mittimus issued to him by a justice of the peace, in accordance with Conn. Gen. Stat. 1887, §§ 962, 1613,* which authorize the surety

*$962. Any bail or surety who has entered into a recognizance for the personal appearance of another, and shall afterwards believe that his princi

pal intends to abscond, may apply to a justice of the peace in the county in which such principal resides, produce his bail bond or evidence of his being bail or surety, and verify the reason of his such justice shall forthwith grant a mittimus, directed to a proper officer or indiferent person of such county commanding him forthwith to arrest such principal, and commit him to the jail of such county: and the keeper of such jail shall receive such principal, and retain him in jail until discharged by due order of law; and such surrender of the principal shall be a full discharge of the surety upon his bond or recognizance.

application by oath or otherwise; and thereupon

$1613. Any surety in a recognizance in criminal proceedings who believes that his principal intends to abscond may have the same remedy, and proceed and be discharged in the same manner, as sureties upon bail bonds in civil actions.

on a recognizance, either in civil or in criminal proceedings, upon making affidavit that his principal intends to abscond, to obtain from a justice of the peace a mittimus to commit him to jail.

The only objections taken by the petitioner to the sufficiency of this mittimus are, 1st, that it shows that the recognizance was entered into on the 17th of January, 1895, for his appearance "before the superior court to be holden at New Haven within and for the county of New Haven on the first Tuesday of January. 1895," which was a day already passed; and 2d, that it describes him as "of the town of Newton, state of Massachusetts," while the statute only authorizes the issue of a mittimus by "a justice of the peace of the county in which such principal resides." But the first Tuesday of January was the day appointed by law for the beginning of the term of the superior court. Conn. Gen. Stat. § 1615. And the question whether the recognizance might be construed as requiring an appearance at a subse247] quent day in the course of the term, *as well as the question whether the word "resides," as used in the statute, implies domicil, or only presence in the county, is a question which should be left to the decision of the courts of the state.

There could be no better illustration than this case affords of the wisdom, if not necessity, of the rule established by the decisions of this court above cited, that a prisoner in custody under the authority of a state should not, except in a case of peculiar urgency, be discharged by a court or judge of the United States upon a writ of habeas corpus, in advance of any proceedings in the courts of the state to test the validity of his arrest and detention. To adopt a different rule would unduly interfere with the exercise of the criminal jurisdiction of the several states, and with the performance by this court of its appropriate duties. Order affirmed.

Statement by Mr. Justice Gray: *This was a petition for a writ of man- [248 damus to the Honorable William A. Woods as judge of the circuit court of the United States for the district of Indiana, to command him to enter, in a suit of equity pending before him, a final decree in favor of the present petitioners, defendants in that suit, in accordance with a mandate of this court upon reversing a decree of that court, on an appeal reported as Sanford Fork & T. Co. v. Horoe, B. & Co. 157 U. S. 312 [39: 713].

By the former opinion and mandate of this court, the petition for a mandamus and the return to the rule to show cause, the case appeared to be as follows:

A bill in equity was filed in the circuit court of the United States for the district of Indiana, by creditors of the Sanford Fork & Tool Company against that company and certain of its directors and stockholders, to set aside a mortgage made by the company to the other defendants to secure them for their indorsements of promissory notes of the company.

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Te that bill the defendants filed an answer under oath, insisting that the mortgage was valid; and the plaintiffs filed exceptions to the answer upon the ground that the matters therein averred were insufficient to constitute a defense to the bill or to any part thereof, as well as upon the ground that the defendants had not duly answered specific allegations of the bill. The circuit court, held by Judge Woods, after hearing arguments upon those exceptions, sustained them; and the defendants declining to plead further and electing to stand by their answer, the court, "having considered the pleadings, and being fully advised in the premises," entered a final decree, adjudging the mortgage to be void as against the plaintiffs, and granting them the relief prayed for.

The defendants appealed to this court, which, after hearing the appeal, delivered an opinion beginning thus: "In the absence of any testi

Re SANFORD FORK & TOOL COM mony, and in the manner in which this case

PANY ET AL.

(See S. C. Reporter's ed. 247-259.) Amending pleadings--decision of this court.

1. Upon reversal by this court of the decree of the circuit court sustaining plaintiff's exceptions to the answer and granting the relief prayed for, this court remanding the case for further proceedings, the plaintiff has the right to file a reption, allow amendments to the pleadings for the purpose of more fully or clearly presenting the

lication and the circuit court can, in its discre

facts at issue between the parties.

2. No questions once considered and decided by this court can be re-examined at any subsequent

stage of the same case.

[No. 8, Original.] Submitted December 2, 1895. ber 23, 1895.

PETITION for a

was submitted for decision, it must be assumed that the matters alleged in the bill and not denied in the answer and the new matters set forth in the answer are true. And the question which arises is whether, upon these admitted facts, the decree in favor of the plaintiffs can be sustained." 157 *U. S. [249 316 [39:716]. This court, for reasons stated in that opinion, held that the mortgage was valid, and therefore that the circuit court erred; and in the opinion, as well as by its mandate set down to the circuit court, ordered the decree of that court to be "reversed, and the cause remanded to that court for further

proceedings not inconsistent with the opinion of this cour.." The mandate concluded, in usual form, as follows: "You, therefore, are hereby commanded that such execution and Decided Decem- further proceedings be had in said cause, in conformity with the opinion and decree of this court, as according to right and justice and the laws of the United States ought to be had, the said appeal notwithstanding."

writ of mandamus to the judge of the Circuit Court to command him to enter a final decree in accordance with a mandate of this court. Denied.

See same case, 157 U. S. 312 [89: 713].

The defendants presented the mandate and a certified copy of the opinion of this court to the circuit court held by Judge Woods; and 1895.

Re SANFORD FORK & TOOL CO. moved for a final decree that the former de- | where the first error occurred, the parties cree of the circuit court be reversed; that the would stand, in respect of the case and of each cause be held to have been submitted by the other, as if, in the progress of the cause, it had

plaintiffs upon bill and answer; and that, upon the facts alleged in the bill and answer, the law is with the defendants, and the plaintiffs take nothing by their bill, and the defend ants have judgment for their costs.

The circuit court overruled the motion of the defendants, and, on motion of the plaintiffs, granted leave to amend the bill, but stayed proceedings to enable the defendants to apply to this court for a writ of mandamus.

The petition to this court for a writ of man

but then arrived at that juncture. To hold,
instead of this view, that complainants had, by
their mistake in filing exceptions, or by the
court's mistake in sustaining them, or by both
things together, forfeited their right to have
the cause proceed when the errors had been cor-
rected in the *orderly manner indicated [251
above seemed and seems entirely illogical, and
as therefore foreign to the purpose of this
court. Respondent accordingly ruled that,
when he retraced the steps held erroneous by

damus alleged that the order of the circuit this court, the cause should progress as if they

court, overruling the motion of the defendants
for a final decree in their favor, and granting
the motion of the plaintiffs for leave to amend
their bill, was inconsistent with and in viola-
tion of the opinion, decree, and mandate of
this court; and prayed for a writ of
to Judge Woods to grant the motion of the
defendants and to overrule the motion of the
plaintiffs.

mandamus

This court granted a rule to show cause, in the return to which Judge Woods stated that his action, complained of by the petitioners, arose upon his construction of the opinion and mandate of this court, on reversing his former decree; and set forth his view of the matter as follows:

250] *"Exceptions had been improperly sustained to the answer of defendants (petitioners). For this error, as respondent construes the opinion and mandate, the decree was reversed, and the cause remanded to the circuit court, with the usual directions for further proceedings there. Upon the return of the cause there, and after the erroneous decree had been set aside, but before other step was taken, petitioners moved for decree in their favor, on the ground that this court had treated the cause as having been submitted below on bill and answer, and that, this court having held the answer sufficient, it followed they were entitled to such decree. Respondent could not adopt that view, since it plainly was not what had occurred. There was no such submission of the cause below on bill and answer. Nor, in rendering the decree in favor of complainants, had respondents 'considered' the answer; but had, since sweeping exceptions had been sustained to it, treated it as out of the record, for any purpose of the decree-a fact plainly manifest in the record before this court on appeal. He could not, therefore, suppose that this court meant, in what is said upon this point, to hold more or other than that the answer was sufficient, and that he had erred in holding it insufficient.

"Respondent, therefore, having in view the rules of practice prescribed by this court for the government of the circuit court, held that since, if he had overruled the exceptions to the answer, complainants would have been entitled to file replication, as provided by rule 66 in equity, and, if they desired it, to have leave to amend their bill, under rule 45, he did not, nor does, believe this court, in reversing the decree, meant to deprive complainants of these rights; but inferred rather, as the more reasonable and logical deduction, that, when the circuit court had retraced its steps to the point

had not been taken at all, and as if we were but now arrived at that point. To that end, he granted, when it was craved, leave to complainants to amend their bill, and would have entered the usual order against them to file replication on or before the next rule day, had not petitioners thereupon interposed their motion for stay of proceedings until this application could be heard here.

Judge Woods, in his return, declared himself ready, if his construction of the opinion and mandate should not accord with that of this court, to make and enter such order and decree, under its direction, as would carry out its opinion and mandate.

Messrs. Alpheus H. Snow and George A. Knight, for petitioners:

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If this court, by its opinion, decree, and mandate, had authorized any further proceedings after reversal except an entry of a decree by the court below in favor of the defendants on the bill and answer, it must necessarily have held that the circuit court had jurisdiction to receive and rule upon the so-called tions to answer" which were, in fact, demurrers to the answer, and that it erred in its ruling on the so-called exceptions. The effect of the opinion, decree, and mandate, had such further proceedings been authorized, would have been to put this court in the position of having conferred jurisdiction upon the circuit courts of the United States to receive and rule upon a demurrer to a sworn answer in equity, and thus of having indirectly promulgated a new rulein equity setting aside the settled principle of equity practice which forbids that the sufficiency of an answer to constitute a defense to the bill should ever be tested.

This court, however, carefully guarded against such a result of its decision in this case by holding in its opinion that the case had been decided and should be thereafter treated as if submitted on the bill and answer, and that the circuit court erred in its finding and decree on the facts stated in the bill and answer; and by issuing a mandate commanding the court below to proceed in conformity with the opinion and decree, plainly meaning to command the court below to set aside its decree in favor of the complainants on the bill and answer and to proceed to render a decree in favor of the de fendants on the bill and answer.

The writ of mandamus prayed for should issue to effectuate the plain language and purpose of the opinion, decree, and mandate.

Circuit courts of the United States have no authority or jurisdiction to receive on their

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