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

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 States for the western district of Virginia, at Abingdon, and that there are other documents, papers, and books in the possession of H. B. Maupin, receiver of the said circuit court of the United States, in the chancery cause of Paul Hutchinson, administrator, 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 was entered in the said circuit court of the United States the said J. L. Gleaves, attorney for the commonwealth aforesaid, procured subpoena duces tecum to be regularly

issued from the clerk's office of this court for

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 em-
bezzlement 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
others, from in any manner using against
said H. G. Wadley in any other court, state or
Federal, in any other case, civil or criminal,
the deposition of the said Wadley *taken in[155]
another case of Paul Hutchinson, Adm'r, v.
The Wytheville Insurance & Banking Com-
pany, pending in the circuit court of the
United States for the western district of Vir-
ginia or any copy thereof or extract there-

And the prayer of said bill is in the fol-
lowing 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 Abing don; that your honor may grant a writ of injunction issuing out of and under the seal of this honorable court, restraining and enjoining, under the penalty for a violation hereof, all of the defendants to this bill, including their attorneys, clerks, and agents, either directly or indirectly, through their said I. C. Fowler, clerk as aforesaid, resid- from in any manner using against orator in own agency or through the agency of others, ing in Abingdon, Virginia, and H. B. Mauany 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 subpoenas of Master Commissioner Gray, taken and duces tecum were duly executed on the said filed therein, or any copy thereof, or any of I. C. Fowler, clerk, and the said H. B. Mau- the books, papers, records or correspondence, pin, receiver, but that they refused and deor any copies thereof or extracts therefrom, clined to obey the same or to produce said of the Wytheville Insurance & Banking Compapers, books, and documents, because since pany, in the possession or that came under said order was entered by the United States the control of said Gray, commissioner, or court and since said subpoenas duces tecum of H. J. Heuser, late receiver, or of H. B. were issued and served, the accused, H. G. Maupin, present receiver, or of I. C. Fowler, Wadley, had prepared and sworn to a bill clerk in said equity suit that was brought in asking for an injunction restraining the said this court by said creditors; that your honor I. C. Fowler, clerk, and the said H. B. Mau- will likewise enjoin each and all of said depin, receiver, from obeying any such sub- fendants, creditors, who are now parties by pœna duces tecum, which bill was presented the decrees of this court in said suit in equity by counsel for the said H. G. Wadley to the now pending in this court, whether they are Hon. Nathan Goff, one of the circuit judges parties to the original bill or interveners of the United States for the fourth circuit, by petition or are plaintiffs in the amended, and on the ex parte motion of the said Wad- supplemental and cross bill, or whose claims ley the said judge awarded an injunction have been allowed by or presented to the masrestraining the said J. L. Gleaves, attorney ter commissioner, Gray, for allowance, tofor the commonwealth of Wythe county, Vir-gether with all their attorneys, clerks, or ginia, either by himself or the agreement of agents either through their own agency[156] others; I. C. Fowler, clerk of the said United or acts or through the agency or acts of States circuit court; H. B. Maupin, receiver others and also the said J. L. Gleaves, the 172 U. S.

U. S., Book 43.



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 de-
clerk, 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 on their counsel shall be equivalent to per-
of them in the criminal procedure now pend-sonal service on them.
ing in the county court of Wythe_county, But before this injunction shall take ef-
Virginia, in the name of The Common- fect the said H. G. Wadley will execute a
wealth of Virginia v. H. G. Wadley, up- bond before the clerk of the court in the
on an indictment for embezzlement of the penalty of $10,000, conditioned according to
assets of the Wytheville Insurance & Bank- law, with N. L. Wadley as his surety, who is
ing Company, the said creditors having al- approved as such surety, proof of her solven-
ready submitted themselves and their claims cy being now made.
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 un-
just and unlawful misuse of the records of
this court in said equity suit, for the pro-
motion 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:

June 8, 1894.

To I. C. Fowler, clerk United States Cir-
cuit Court, Abingdon, Va.
N. Goff, Circuit Judge.

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

until the next term.

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

*In pursuance of this petition a writ of[158] habeas corpus was issued, on August 11, 1896, directed to I. R. Harkrader, sheriff of Wythe county, Virginia, and, as such, jailer of said county, commanding him to bring said H. G. Wadley, together with the day and cause of his caption and detention, be fore Charles H. Simonton, judge of the cir cuit court of the United States within and for said district aforesaid, on August 14,


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

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

This day came H. G. Wadley, one of the defendants in the above proceedings in equity now pending in the above-named court, and he presented his bill for an injunction in his name against said Blount and Boynton et als., and this said bill being duly sworn to by H. G. Wadley and fully supported by the affidavits of J. H. Gibboney, H. J. Heuser, and J. B. Barrett, Jr., the cause came on this day to be heard upon said bill for injunction, and upon all the exhibits 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- To the Honorable Judge of the United fidavits and the said exhibits and transcripts, the court is of opinion that the equity jurisdiction of the United States court above named first attached to both the persons and the subject-matter involved in [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 withdrawn 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

In the matter of the petition of H. G. Wadley and the writ of habeas corpus ad subjiciendum which issued from the clerk's 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 said order as relates to the custody of


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."

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 duly executed upon I. R. Harkrader, sheriff of Wythe county, and as such the jailer and warden of said And now respondent, having fully an- county, in whose custody the petitioner is deswered, prays that said writ may be dis-tained, and upon the return of said sheriff charged, 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.

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:

The petitioner, H. G. Wadley, comes and says that for aught contained in the said return of I. R. Harkrader, sheriff of Wythe county, Virginia, to his petition for habeas corpus, that petitioner is entitled to his discharge because he denies, as contained in said return, said county court of Wythe county, Virginia, had any jurisdiction of said petitioner or the subject-matter of said indictment at the time it was found or now has such jurisdiction. Petitioner denies the validity of the order of commitment of said court of petitioner to said sheriff of 10th August, 1896, relied on in said return, and says that commitment is void, because said court has no jurisdiction to enter it, and also because the indictment upon which the petitioner was so committed was obtained 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:

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 habeas corpus and for order of discharge,

duction of the body of said H. G. Wadley before this court by the said sheriff, the said sheriff appearing in person, and also by counsel, attorney general of Virginia, and after argument of counsel, and the court being fully advised in the premises, the court finds that the said petitioner, H. G. Wadley, is unlawfully restrained of his liberty by the county court of Wythe county, Virginia, by virtue of an order of the judge thereof, committing him to custody in default of bail, entered on the 10th of August, 1896, on an indictment of the Commonwealth of Virginia v. H. G. Wadley, on a complaint of felony set up in the petition, notwithstanding the injunction and writ of this court, it is therefore considered and ordered by this court that the said H. G. Wadley be discharged from the custody of the said I. R. Harkrader, sheriff of Wythe 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.

*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, Virginia, 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 Abingdon, Va.

Charles H. Simonton, Circuit Judge. The attorney general of Virginia, in his proper person, states that from this order the commonwealth of Virginia desires to appeal. Charles H. Simonton.

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 which was, on October 12, 1896, allowed by the Supreme Court of the United States, the circuit judge of the circuit court for the western district of Virginia.

Mr. A. J. Montague, Attorney General of Virginia, for appellant.

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 habeas corpus was made by a judge, and not by a court; because the order, whether made by a judge or a court, was not final, as the prisoner was discharged only "pending said injunction," and was held subject to the further order of the United States circuit court, and because there was no certificate from the court below as to the distinct question of jurisdiction involved.

[162] *It is, indeed, true, as was decided in Carper v. Fitzgerald, 121 U. S. 87 [30: 882], that no appeal lies to this court from an order of a circuit judge of the United States, and not as a court, discharging the prisoner brought before him on a writ of habeas corpus. But this record discloses that, while the original order was made at chambers, the final order, overruling the return of the sheriff and discharging the prisoner from custody, was the decision of the circuit court at a stated term, and therefore the case falls within 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.

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 12, 1896; and that the citation was served and duly filed. This is a plain showing that the appeal as allowed was duly "filed." It 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 error 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 appellate 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 Brandies 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 sufficient 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."

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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, It is doubtless true, as urged by the ap- 157 U. S. 655 [39: 845]. Second. When a pellee's counsel, that an assignment of error state court and a court of the United States cannot import into a cause questions of ju- may each take jurisdiction of a matter, the risdiction which the record does not show dis- tribunal where jurisdiction first attaches tinctly raised and passed on in the court be- holds it, to the exclusion of the other, until low; but we think that this record does dis- its duty is fully performed and the jurisdicclose that the assignments of error, which tion involved is exhausted; and this rule apwere embodied in the prayer for an appeal, plies alike in both civil and criminal cases. set up distinctly the very questions of juris- Freeman v. Howe, 24 How. 450 [16:749]; diotion which were contained in the record Buck v. Colbath, 3 Wall. 334 [18: 257]; Tayand passed by the trial court. lor Taintor, 16 Wall. 366 [21: 287]; Ex [163] *The further contention on behalf of the pe 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.

But it is claimed, under the second of the above propositions, that as the circuit court of the United States had obtained prior and therefore exclusive jurisdiction of the affairs and assets of the Wytheville Banking & Insurance Company, a corporation of the state of Virginia, by virtue of two suits in equity brought in said court in October, 1893, by creditors of the said banking company, in which suits a receiver to take charge of the property of the bank, and a master to take all necessary accounts, had been appointed, it followed that the state court had no jurisdiction, pending those suits, to proceed by way of indictment and trial against an officer for the offense of embezzlement, as created and defined by a valid statute of the state of Virginia. For the state court to so proceed, it is claimed, constituted an interference with the Federal court in the exercise of its jurisdiction; and that hence it was competent for the United States court to grant an injunction against the prosecu[165]tion of the *criminal case and to release the prisoner by a writ of habeas corpus directed to the sheriff.

It is not denied, on behalf of the appellee, that by 720 of the Revised Statutes it is enacted that the writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a state, except where such injunction may be authorized by any law relating to proceedings in bankruptcy. Nor do we understand that it is denied that, apart from the effect of § 720, the general rule, both in England and in this country, is that courts of equity have no jurisdiction, unless expressly granted by statute, over the prosecution, the punishment or pardon of crimes and misdemeanors, or over the appointment and removal of public officers and that to assume such a jurisdiction, or to sustain a bill in equity to restrain or relieve against proceedings for the punishment of offenses, or for the removal of public officers, is to invade the domain of the courts of common law, or of the executive and administrative department of the government. Re Sawyer, 124 U. S. 200 [31: 402].

| As was said in Dietsch v. Huidekoper: "A
court of the United States is not prevented
from enforcing its own judgments *by the[166]
statute which forbids it to grant a writ of
injunction to stay proceedings in a state
court. Dietsch, the original plaintiff in the
action on the replevin bond, represented the
real parties in interest, and he was a party
to the action of replevin, which had been
pending and was finally determined in the
United States circuit court. That court had
jurisdiction of his person, and could enforce
its judgment in the replevin suit against
him, or those whom he represented. The bill
in the case was filed for that purpose and
that only."

Nor was there any attempt made in those cases to enjoin the state courts or any state officers engaged in the enforcement of any judgment or order of a state court.

It is further contended that when the parties sought to be enjoined have, as plaintiffs, submitted themselves to the court, by a bill in equity, as to the matter or right involved, a bill for an injunction will lie to prevent interference by criminal procedure in another court; and the decision of this court in Re Sawyer 124 U. S. 200 [31: 402], is cited, where Mr. Justice Gray said: "Modern decisions in England, by eminent equity judges, concur in holding that a court in chancery has no power to restrain criminal proceedings unless they are instituted by a party to a suit already pending before it, and to try the same right that is in issue there." So, also, the case of The Mayor of York v. Pilkington, 2 Atk. 302, is cited, and in that case, where plaintiffs in a chancery bill and cross bill to establish in equity their sole right of fishing in a certain stream, while their bill was still pending, caused the defendant to be indicted at the York criminal court for a breach of the peace for such fishing, Lord Hardwicke awarded an injunction to restrain the plaintiffs from all further criminal proceedings in other courts, and said that if a plaintiff filed a bill in equity against a defendant for a right to land and a right to quiet the possession But, as respects section 720, it is argued thereof, and after that he had preferred an that it must be read in connection with sec-indictment against such defendant for a tion 716, which provides that "the Supreme Court and the circuit and district courts shall have power to issue writs of scire facias. They shall also have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions and agreeable to the usages and principles of law;" and the cases of French v. Hay, 22 Wall. 253 [22: 858], and Dietsch v. Huidekoper, 103 U. S. 494 [26: 497], are cited to the alleged effect that the prohibition in section 720 does not apply where the jurisdiction of a Federal court has first attached.

forcible entry into said land, the court of equity would certainly stop the indictment by an injunction.

But the observations quoted had reference to cases where the same rights were involved[167] in the civil and criminal cases, and where the legal question involved was the same. Thus the case of the fishery, both in the civil and the criminal proceeding, involved the right of defendant to fish in certain waters where the plaintiff claimed an exclusive right, and, as no actual breach of the peace was alleged, the public was not concerned. And when, in the latter case of Lord Montague The cited cases were of ancillary bills, and v. Dudman, 2 Ves. Sr. 396, where an injuncwere in substance proceedings in the tion was prayed for to stay proceedings in a Federal courts to enforce their own mandamus, his ruling in Mayor of York v. judgments by preventing the defeated Pilkington was cited, Lord Hardwicke said: parties from wresting replevied property from the plaintiffs in replevin, who by the final judgments were entitled to it.

"This court has no jurisdiction to grant an injunction to stay proceedings on a mandamus, nor to an indictment, nor to an in

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