DUNCAN v. CAMPAU.

receiver is appointed over nothing but the real estate. The bill shows that the administrators have given up possession of it, and they have joined with the other heirs in their attempts to divide it. We have held they were not bound to take possession unless they chose, and I doubt whether they could do so after such acts as are charged. It comes then to the simple inquiry whether a receiver can be appointed over tenants in common. I think the precedents permit this in some cases, and where, as in this case, the other tenants not only deny complainant's title, but have endeavored to entangle the whole title, and are not disposed to account for the rents and profits, there is power to make such appointment. The bill, however defective, is a bill for partition. The receivership is merely incidental and ancillary, and we can not review the discretion of the judge in granting it.

COOLEY J.

Regarded the order appealed from as clearly interlocutory within the former decisions by this court. The order in Lewis v. Campau gave the complainant that which his bill prayed for as the end and object of the bill upon that branch of the case; and the decision proceeded on the ground that the relief asked for, so far as the receiver was concerned, was ancillary, not to further relief to be had in that case, but to the proceedings on the probate appeal. The appointment in this case, on the contrary, is only pending the suit, and auxiliary to the principal relief which this bill prays for. Wisely or unwisely, the legislature have not authorized us to review such an order at this stage of the case.

CHRISTIANCY J.

Also concurred, considering the case quite distinct from the one referred to, though he did not think that a failure in the bill to make out a case would make any difference

IN THE MATTER OF SAMUEL W. JACKSON.

as to the power of this court to review an order which in its frame and purpose was interlocutory.

The question whether an order is final or interlocutory does not depend upon the question whether it was properly or improperly granted.

Appeal dismissed.

In the matter of Samuel W. Jackson.

Habeas Corpus, where party is detained in another state. Whether a writ of habeas corpus will issue from the Supreme Court to a person here, to bring into this state a minor child under guardianship here, and who has been, and continues to be detained in another state, quære, the court being equally divided.

Heard April 30th. Decided May 16th.

In the matter of Samuel W. Jackson on petition of George W. Bissell and John Hosmer, guardians, for a writ of habeas corpus against Samuel S. Taff.

The petition set forth that the said Samuel W. Jackson was a minor, and that petitioners were his testamentary guardians and entitled to his custody; that the said Taff had caused said minor to be carried out of the state of Michigan and beyond the jurisdiction of the courts of said state, and still continued (through his wife) to keep him out of the state after service of the writ. The respondent moved to quash and set it aside for matters appearing on the face of the petition, and especially, for the reasons that he was in effect charged thereby with a criminal offense and was called to answer thereto; and that it appeared that the said infant had been, since May, 1866, out of this state and beyond the jurisdiction of the court, and had not been restrained of his liberty within the state.

Theodore Romeyn, for the respondent, insisted on these grounds for the dismissal of the writ.

IN THE MATTER OF SAMUEL W. JACKSON.

George V. N. Lothrop, with whom was associated D. B. and H. M. Duffield, was heard for the relator and the court overruled the motion and ordered a return.

The respondent then made the following return: "that he has not the said S. W. Jackson in his custody or under his power or restraint, and that he did not have him in his custody or under his power or restraint at the time of the application for this writ, and has not had him at any time since; and he further states that he has at no time transferred the custody or restraint of said S. W. Jackson to any person."

Mr. Lothrop, for the relator, objected to the return as insufficient and moved for a further return.

Mr. Romeyn insisted that the return was sufficient; that it was in the form prescribed by the statute, (2 Comp. L. § 5221,) and that it was the intention of the law to allow a general form of return and denial.

Mr. Lothrop insisted that the matters alleged in the petition must be specifically answered.

The majority of the court so held and ordered the respondent to make further answer.

The defendant thereupon made a further return, setting up amongst other things that the said Samuel W. Jackson was taken out of the state by his wife in May, 1866, being before the said writ had been issued, and had never, since that time, been within the state; and that she had been duly appointed the guardian of said Jackson by the Surrogate's Court of Canada, a court of competent jurisdiction. in the province of Canada West; and that the child was not, when the writ was applied for, and had not been since, and was not now under the custody or control of the respondent.

To this the relators filed a traverse, denying "that said respondent did not cause said child to be taken out of this state; that the respondent has not since such taking kept said child in the care and charge of his said wife

IN THE MATTER OF SAMUEL W. JACKSON.

absent from the state; that said respondent has no control over said child; that respondent does not support his said wife and child beyond the limits of this state, for the purpose of keeping said child from the custody of the petitioners; that the respondent did not have the said child in his custody, or under his power or restraint, when said writ issued; that he has not had said child in his custody, or under his power or restraint, at any time since; and that he did not, at the time of said return, have said child in his custody, or under his power or restraint; these petitioners deny each and singular said averments, as made and alleged in said return, to be true, and they pray the same may be inquired of by this court."

Thereupon, respondent moved to quash the writ for want of jurisdiction, upon the case made by the papers.

On the argument, Mr. Romeyn, for the respondent, made the following points:

1. Both at common law and under the statute the writ of habeas corpus is confined to the relief of parties detained or restrained within the state. It has no application to a detention beyond the limits of the state.

Such detention is an offense against the realm where it is committed, and the courts of another country can not relieve against it.

2. The removal of the relator from the state, if unlawful, was a crime under its laws (2 Comp. L. §§ 5735-57401); punishable as such, even as a felony.

The crime against the people of the state was consumImated when the child was removed. The further offense of unlawful imprisonment in another country is not to be remedied by this writ, issuing in the name and in behalf of the people of the state; and if the removal from the state was with intent to evade the process of its courts, then such removal was punishable as a contempt.

3. The facts in this case do not show a detention by this respondent.

IN THE MATTER OF SAMUEL W. JACKSON.

4. If otherwise, the only relief in the courts of this state must be sought in equity. But,

5. The appointment of the guardian in Canada is a conclusive answer to the ruling sought by the writ, or in any form in our courts.

6. While that guardianship exists the petitioners here should go to the court in Canada and apply there for the surrender of the ward to them.

CAMPBELL J.

The question of jurisdiction presented by this motion is, whether, assuming that Taff, in May, 1866, caused the infant Samuel W. Jackson to be removed from this state, with the design of keeping him from the custody of his guardians, and has since that time been instrumental in having him detained beyond the state, this court has authority by the writ. of habeas corpus to compel the child, who has been all this time in other territory, to be brought back to Michigan.

If the court has such authority, and if the case set up by the relators should be made out, there can be no difference of opinion as to the propriety of its exercise. The removal is charged to have been made at a time when a decision of this court was to be given, which might, and when it was made actually did, settle the rights of the testamentary guardians to have the child under their control, If the allegations should be sustained, the respondent has been concerned in a very daring violation of law, for which he should be held to a strict account.

The gravity of the charges, and the danger which must arise if such conduct can not be reached, impose upon us the duty of considering with more than com

care the question of jurisdiction, where action and refusal to act involve equally serious results.