There was attached to said petition the as aforesaid, by themselves or by their agents following exhibit:

or defendants, from all further proceedings or participation by them or either of them in a prosecution now pending in the county court of Wythe county, in the name of The Commonwealth v. H. G. Wadley, for the embezzlement of the assets of the Wytheville Insurance & Banking Company, restraining and enjoining them and all other defendants named in said bill, including their attorneys, clerks, agents, either directly or indirectly, through their own agency or the agency of

This day came the commonwealth, by her attorney, and James A. Walker and C. B. Thomas, assistant prosecutors, as well as the accused, in his own proper person, in discharge of his recognizance; whereupon the attorney for the commonwealth moved the court to continue this cause on the ground that there are documents, books, and papers in the possession of I. C. Fowler, clerk of the circuit court of the United others, from in any manner using against States for the western district of Virginia, said H. G. Wadley in any other court, state or at Abingdon, and that there are other docu- Federal, in any other case, civil or criminal, ments, papers, and books in the possession the deposition of the said Wadley "taken in [155] of H. B. Maupin, receiver of the said circuit another case of Paul Hutchinson, Adm'r, v. court of the United States, in the chancery The Wytheville Insurance & Banking Comcause of Paul Hutchinson, administrator, pany, pending in the circuit court of the

against the Wytheville Insurance & Banking Company, pending therein, which said papers, books, and documents are material evidence of the commonwealth in the prosecution of the said indictment against the said H. G. Wadley, and that the commonwealth cannot safely go to trial without the said papers, books, and documents; that the said J. L. Gleaves, then attorney for the commonwealth of Virginia for Wythe county aforesaid, at a former term of the circuit court of the United States, applied to the said circuit court for an order directing the said clerk and the receiver to obey any subpœna duces tecum issued from the clerk's office of this court, requiring said clerk and [154]said receiver to produce said papers, books, and documents before this court on the trial of this prosecution, and that since said order

United States for the western district of Vir-
ginia or any copy thereof or extract there-
from.

And the prayer of said bill is in the following words:

Forasmuch as your orator can have no adequate relief except in this court, and to the end, therefore, that the defendants may, if they can, show why your orator should not have the relief prayed for, and that they may answer to the matters hereinbefore stated and charged, the prayer of your orator is

That this bill of injunction and for relief be treated as incidental to said suit now pending in your honor's said court at Abingdon; that your honor may grant a writ of injunction issuing out of and under the seal of this honorable court, restraining and en

was entered in the said circuit court of the joining, under the penalty for a violation United States the said J. L. Gleaves, attor- hereof, all of the defendants to this bill, in

ney for the commonwealth aforesaid, procured subpœna duces tecum to be regularly

issued from the clerk's office of this court for

said I. C. Fowler, clerk as aforesaid, residing in Abingdon, Virginia, and H. B. Mau

cluding their attorneys, clerks, and agents, either directly or indirectly, through their own agency or through through the agency of others, from in any manner using against orator in any other court, state or Federal, in any othpin, receiver as aforesaid, residing in Wythe er case, civil or criminal, the said deposition county, Virginia, requiring them to produce of your orator aforesaid taken in said suit said papers, books, and documents in their in equity, or any copy thereof, or the report possession as aforesaid; which said subpœnas of Master Commissioner Gray, taken and

duces tecum were duly executed on the said I. C. Fowler, clerk, and the said H. B. Maupin, receiver, but that they refused and declined to obey the same or to produce said papers, books, and documents, because since said order was entered by the United States court and since said subpœnas duces tecum were issued and served, the accused, H. G. Wadley, had prepared and sworn to a bill asking for an injunction restraining the said I. C. Fowler, clerk, and the said H. B. Maupin, receiver, from obeying any such subpœna duces tecum, which bill was presented by counsel for the said H. G. Wadley to the Hon. Nathan Goff, one of the circuit judges of the United States for the fourth circuit, and on the ex parte motion of the said Wadley the said judge awarded an injunction restraining the said J. L. Gleaves, attorney for the commonwealth of Wythe county, Virginia, either by himself or the agreement of others; I. C. Fowler, clerk of the said United States circuit court; H. B. Maupin, receiver 172 U. S.

U. S., BOOK 43.

26

filed therein, or any copy thereof, or any of
the books, papers, records or correspondence,
or any copies thereof or extracts therefrom,
of the Wytheville Insurance & Banking Com-
pany, in the possession or that came under
the control of said Gray, commissioner, or
of H. J. Heuser, late receiver, or of H. B.
Maupin, present receiver, or of I. C. Fowler,
clerk in said equity suit that was brought in
this court by said creditors; that your honor
will likewise enjoin each and all of said de-
fendants, creditors, who are now parties by
the decrees of this court in said suit in equity
now pending in this court, whether they are
parties to the original bill or interveners
by petition or are plaintiffs in the amended,
supplemental and cross bill, or whose claims
have been allowed by or presented to the mas-
ter commissioner, Gray, for allowance, to-
gether with all their attorneys, clerks, or
agents either through their own agency [156]
or acts or through the agency or acts of
others and also the said J. L. Gleaves, the

401.

on their counsel shall be equivalent to personal service on them.

commonwealth's attorney of Wythe county, and undetermined in this court, it is ordered Virginia, either by himself or by the agency that an injunction be awarded to said H. G. of others, and said commissioner Gray, Wadley according to the prayer of his bill; receivers Heuser and Maupin, and said and it appearing to the court that the declerk, Fowler, by themselves or their agents fendants in said bill are quite numerous, it or deputies, from all further prosecution is further ordered that service of this order of or participation by them or by either of them in the criminal procedure now pending in the county court of Wythe county, Virginia, in the name of The Commonwealth of Virginia v. H. G. Wadley, upon an indictment for embezzlement of the assets of the Wytheville Insurance & Banking Company, the said creditors having already submitted themselves and their claims affected by or involved in said criminal procedure, by their bill in equity, to the prior jurisdiction of this court; that your honor, upon a final hearing of this cause, will punish the parties involved for their unjust and unlawful misuse of the records of

this court in said equity suit, for the promotion and prosecution by said creditors of said criminal procedure against your orator, now pending in the said county court of Wythe county, Virginia, put on foot by said creditors and their attorneys.

Copy. Attest:

I. C. Fowler, Clerk.

The restraining order is in the following words:

But before this injunction shall take effect the said H. G. Wadley will execute a bond before the clerk of the court in the penalty of $10,000, conditioned according to law, with N. L. Wadley as his surety, who is approved as such surety, proof of her solvency being now made.

June 8, 1894.

To I. C. Fowler, clerk United States Circuit Court, Abingdon, Va.

N. Goff, Circuit Judge.

And thereupon, on motion of the attorney for the commonwealth, the case is continued

until the next term.

And the court, of its own motion, required the prisoner to enter into a bond, with security, in the penalty of $10,000, and until such bond is given he is committed to the custody of the jailer of this county. Enter. Wm. E. Fulton, Judge.

*In pursuance of this petition a writ of[158]

This day came H. G. Wadley, one of the habeas corpus was issued, on August 11, defendants in the above proceedings in 1896, directed to I. R. Harkrader, sheriff of equity now pending in the above-named Wythe county, Virginia, and, as such, jailer court, and he presented his bill for an in- of said county, commanding him to bring junction in his name against said Blount said H. G. Wadley, together with the day and Boynton et als., and this said bill being and cause of his caption and detention, beduly sworn to by H. G. Wadley and fully fore Charles H. Simonton, judge of the cirsupported by the affidavits of J. H. Gibboney, cuit court of the United States within and H. J. Heuser, and J. B. Barrett, Jr., the for said district aforesaid, on August 14,

cause came on this day to be heard upon
said bill for injunction, and upon all the ex-
hibits filed thereto, and upon a transcript of
the record of said original bill and said
amended, supplemental and cross bill above
named, and, upon reading said bill and af-
fidavits and the said exhibits and tran-
scripts, the court is of opinion that the
equity jurisdiction of the United States
court above named first attached to both the

1896.

On August 14, 1896, I. R. Harkrader, sheriff, produced the body of said Wadley and made the following return:

To the Honorable Judge of the United
States Circuit Court for the Fourth Cir-
cuit of the United States:

persons and the subject-matter involved in subjiciendum which issued from the clerk's

In the matter of the petition of H. G. Wadley and the writ of habeas corpus ad office of the Circuit Court of the United States for the Western District of Virginia on the 11th day of August, 1896, and returnable on the 14th day of August, 1896, in the town of Wytheville, Wythe county, Virginia, this respondent, for answer to the said writ, says that he here produces the body of the said H. G. Wadley, the person named in the said petition for the said writ, in obedience to the command and direction thereof, and for further return and answer to said writ here avers that he detained in his custody the body of said H. G. Wadley, under and by virtue of an order of the county court of Wythe county, state of Virginia, entered in the case of The Commonwealth of Virginia v. said H. G. Wadley on the 10th day of August, 1896, upon an indictment for a felony pending in said court against said Wadley. So much of as relates to the custody of

[157]said suits "in equity, and that it is improper
that the records of the pleadings, proofs,
books, and papers filed in and parts of said
equity suits now in litigation and pending
unadjudicated in this court between said
parties, or copies thereof, should be with-
drawn therefrom and used by anyone in any
criminal or other proceedings, in any other
court, against the said party to any of said
suits, in regard to any matters in issue in
said suits in equity, until the same have
been fully adjudicated by this court; and it
appearing to this court from said bill for
injunction that such has been done, and is
now threatened by parties to said suits in
equity for the use in a criminal proceeding
just begun by them in the county court of
Wythe county, Virginia, against said H. G.
Wadley, for matters involved in and growing
out of said suits in equity which were first
instituted and are still pending in litigation said order

said Wadley is here inserted in the words and figures following, to wit:

"And the court, of its own motion, required the prisoner to enter into bond, with security, in the penalty of $10,000, and until such bond is given he is committed to the custody of the jailer of this county."

And now respondent, having fully answered, prays that said writ may be discharged, and that he may be awarded his [159]*costs about his return to the writ aforesaid in this behalf expended; and, in duty bound, he will ever pray, etc. I. R. Harkrader, Sheriff of Wythe County, Va., and as such Jailer Thereof.

with the exhibits filed with the said petition, and said petition being duly verified by the affidavit of the petitioner, and upon the writ of habeas corpus issued on said petition on the 11th of August, 1896, and duły executed upon I. R. Harkrader, sheriff of Wythe county, and as such the jailer and warden of said county, in whose custody the petitioner is detained, and upon the return of said sheriff to said writ of habeas corpus, with the commitment filed therewith as the authority under which he acts, upon the demurrer of petitioner to said return and joinder in said demurrer, and upon the answer and denial of the said petitioner to said return, and upon the record in said case of H. G. Wadley v.

To this return Wadley filed a reply in the Blount & Boynton et al., and upon the profollowing words:

duction of the body of said H. G. Wadley before this court by the said sheriff, the The petitioner, H. G. Wadley, comes and said sheriff appearing in person, and says that for aught contained in the said re- also by counsel, attorney general of Virturn of I. R. Harkrader, sheriff of Wythe ginia, and after argument of counsel, county, Virginia, to his petition for habeas and the court being fully advised in the corpus, that petitioner is entitled to his dis- premises, the court finds that the said peticharge because he denies, as contained in tioner, H. G. Wadley, is unlawfully resaid return, said county court of Wythe strained of his liberty by the county court of county, Virginia, had any jurisdiction of Wythe county, Virginia, by virtue of an orsaid petitioner or the subject-matter of said der of the judge thereof, committing him to indictment at the time it was found or custody in default of bail, entered on the 10th now has such jurisdiction. Petitioner denies of August, 1896, on an indictment of the the validity of the order of commitment of Commonwealth of Virginia v. H. G. Wadley, said court of petitioner to said sheriff of on a complaint of felony set up in the peti10th August, 1896, relied on in said return, tion, notwithstanding the injunction and and says that commitment is void, because writ of this court, it is therefore considered and ordered by this court that the said H. G. said I. Harkrader, sheriff of Wythe Wadley be discharged from the custody of county, Virginia, and from the custody of said court, as said court cannot prosecute said indictment pending said injunction, and that the said H. G. Wadley hold himself subject to the further order of this court.

said court has no jurisdiction to enter it, the petitioner was so committed was oband also because the indictment upon which tained in violation of the Constitution of the United States by the illegal and unconstitutional use of petitioner's deposition withdrawn from the files of this court and carried before and read to the said grand jury which found the said indictment, and hence said custody is unlawful, and petitioner is deprived illegally of his personal liberty." He also filed the following demurrer:

"And now comes H. G. Wadley in his own proper person and by his counsel, Blair and Blair, and having heard the return of said sheriff read in answer to the writ of habeas corpus awarded in this cause, he says that the said return and the matters therein contained and set forth are not sufficient in law, and that the said return shows no legal ground for petitioner's detention by said sheriff, and that it is not sufficient answer to the matters of law and facts contained in said petition and exhibits; and this he is ready to verify; wherefore, for want of any sufficient return in this behalf, said H. G. Wadley, the petitioner, prays judgment

[160]that the said "return be held insufficient; that an order be entered discharging petitioner from the custody of the said sheriff.

The record, as certified, discloses the following proceedings:

*And it is further ordered that the United 161]

States marshal for the western district of
Virginia serve a copy of this order upon I.
R. Harkrader, sheriff of Wythe county, Vir-
ginia, and as such the warden and jailer of
said county, and also a copy thereof upon W.
E. Fulton, judge of said court, and Robert
Sayers, Jr., the commonwealth's attorney for
Wythe county, Virginia.
15th August, 1896.

To I. C. Fowler, clerk of this court at

Thereafter, I. R. Harkrader, sheriff of

Wythe county, Va., by R. Taylor Scott, attorney general of Virginia and counsel for petitioner, filed a petition for an appeal to the Supreme Court of the United States, which was, on October 12, 1896, allowed by the circuit judge of the circuit court for the western district of Virginia.

On this the 14th day of August, 1896, came H. G. Wadley, the petitioner, by his counsel, Blair & Blair, and this cause coming on to be heard upon the petition for a writ of Virginia, for appellant.

of habeas corpus and for order of discharge,

Mr. A. J. Montague, Attorney General
Mr. F. S. Blair for appellee.

[161] *Mr. Justice Shiras delivered the opinion of the court:

The appellee has moved the dismissal of
the appeal because, as is alleged, the order
discharging the prisoner on the writ of ha-
beas corpus was made by a judge, and not by

a judge or a court, was not final, as the pris-
oner was discharged only "pending said in-
junction," and was held subject to the fur-
ther order of the United States circuit court,
and because there was no certificate from the
court below as to the distinct question of ju-
risdiction involved.

[162] *It is, indeed, true, as was decided in Car-
per v. Fitzgerald, 121 U. S. 87 [30:882],
that no appeal lies to this court from an or-
der of a circuit judge of the United States,
and not as a court, discharging the prisoner
brought before him on a writ of habeas cor-
pus. But this record discloses that, while
the original order was made at chambers, the
final order, overruling the return of the sher-
iff and discharging the prisoner from custo-
dy, was the decision of the circuit court at a
stated term, and therefore the case falls with
in Re Palliser, 136 U. S. 262 [34:517].

We see no merit in the suggestion that the order discharging the prisoner was not a final judgment. It certainly, if valid, took away the custody of the prisoner from the state court, and put an end to his imprisonment under the process of that court.

That the jurisdiction of the circuit court was put in issue by the petition for the writ of habeas corpus and the return thereto, is quite evident. The contention made, that such question has not been presented to us by a sufficiently explicit certificate, we need not consider, for the case plainly involves the application of the Constitution of the United States. The division and apportionment of judicial power made by that instrument left to the states the right to make and enforce their own criminal laws. And while it is the duty of this court, in the exercise of its judicial power, to maintain the supremacy of the Constitution and laws of the United States, it is also its duty to guard the states from any encroachment upon their reserved rights by the general government or the courts thereof. As we shall presently see, this is the nature of the question raised by this record.

It is doubtless true, as urged by the appellee's counsel, that an assignment of error cannot import into a cause questions of jurisdiction which the record does not show distinctly raised and passed on in the court below; but we think that this record does disclose that the assignments of error, which were embodied in the prayer for an appeal, set up distinctly the very questions of jurisdiction which were contained in the record and passed by the trial court.

[163] *The further contention on behalf of the

was filed on October 8, 1896; that the appeal was allowed on October 12, 1896; that the bond, containing a recital that the said Harkrader, sheriff, had "obtained an appeal and filed a copy thereof in the clerk's office of said court," was filed and approved on October

It

and duly filed. This is a plain showing that
the appeal as allowed was duly "filed."
is sufficient to cite Credit Co. v. Arkansas
Central Railway Co. 128 U. S. 261 [32:450],
where it was said: "An appeal cannot be
said to be 'taken' any more than a writ of er-
ror can be said to be 'brought' until it is in
some way presented to the court which made
the decree appealed from, thereby putting an
end to its jurisdiction over the cause, and
making it its duty to send it to the appel-
late court. This is done by filing the papers,
viz., the petition and allowance of appeal
(where there is such petition and allowance),
the appeal bond, and the citation. In Bran-
dies v. Cochrane, 105 U. S. 262 [26: 989], it
was held that in the absence of a petition and
allowance, the filing of the appeal bond, duly
approved by a justice of this court, was suffi-
cient evidence of the allowance of an appeal,
and was a sufficient compliance with the law
requiring the appeal to be filed in the clerk's
office."

We now come to the question, thus solely presented for our consideration, Had the circuit court of the United States authority to issue a writ of habeas corpus to take and discharge a prisoner from the custody of the state court when proceeding under a state statute not repugnant to the Constitution or laws of the United States, under which the prisoner had been indicted for an offense against the laws of the state?

Two propositions have been so firmly established by frequent decisions of this court as to require only to be stated: First. When a state court has entered upon the trial of a *criminal case, under a statute not[ 164] repugnant to the Constitution of the United States, or to any law or treaty thereof, and where the state court has jurisdiction of the offense and of the accused, no mere error in the conduct of the trial can be made the basis of jurisdiction in a court of the United States to review the proceedings upon a writ of habeas corpus. Andrews v. Swartz, 156 U. S. 272 [39: 422]; Bergmann v. Baker, 157 U. S. 655 [39:845]. Second. When a state court and a court of the United States may each take jurisdiction of a matter, the tribunal where jurisdiction first attaches holds it, to the exclusion of the other, until its duty is fully performed and the jurisdiction involved is exhausted; and this rule applies alike in both civil and criminal cases. Frceman v. Howe, 24 How. 450 [16:749]; Buck v. Colbath, 3 Wall. 334 [18:257]; Taylor Taintor, 16 Wall. 366 [21:287]; Е poze Crouch, 112 U. S. 178 [28: 690].

appellee, that the record does not show that In the present case it is not contended

the appeal as allowed was ever "filled" in the United States circuit court, and that therefore this court is without jurisdiction to entertain the case, we cannot accept, because we think the record, as certified to us, distinctly shows that the petition for appeal

that the state statute, under which the
county court of Wythe county was proceed-
ing, was repugnant to the Constitution or
any law of the United States, or that the
state did not have jurisdiction of the offense
charged and of the person of the accused.