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had sought a re-examination with the view to an adjustment by proportion, and that had been had, then the collector might have assessed the foreign bags so ascertained and admitted the American bags free from duty. But it was for the importers, and not for the government, to make the separation on which such a claim for relief would have rested, or, at least, to have invoked the rule of proportion based on a re-examination.

The importers contended that they had complied with the law and the Treasury regulations by furnishing certain statements of the shippers as to the origin of the goods, and certain certificates as to their exportation filled with wheat, and that this prima facie evidence of the bags being of the manufacture of this country had not been disproved. But if it were admitted that these papers made a prima facie showing, that showing was overturned when it appeared that foreign-made bags in large numbers made up the importations.

The remedies provided by the act of June 10, 1890, furnish the equivalent for the ac[146]tion against the collector which was originally the remedy for an illegal exaction of duties (United States v. Passavant, 169 U. S. 16 [42: 644]; Schoenfeld v. Hendricks, 152 U. S. 691 [33: 601]); and as in that action, so in this proceeding, the importer must establish the illegality in order to recover back duties paid under protest; and this, in a case like the present, involves, in substantiating that contention, the making proof of the identity of the merchandise. Earnshaw v. Cadwalader, 145 U. S. 247, 262 [36: 693, 699]; Erhardt v. Schroeder, 155 U. S. 125 [39: 95].

Moreover, where merchandise liable in large part to duty is entered as exempt therefrom, the collector has the right to assume that the mingling was intentional and with design to evade the revenue laws; and hence even where the confusion of goods is accidental or not fraudulent in fact, and forfeiture is not incurred, it yet devolves on the importer to show what part of the whole he contends should not be taxed.

493, it was the duty of all persons bringing in goods claimed to be free out of a class otherwise dutiable to prove affirmatively the facts constituting the exemption, and that they should separate and designate such merchandise, accompanied by the evidence required by law. This decision was reaffirmed May 5, 1894 (G. A. 2613), and again in the case before us.

*On the 27th of April, 1894, which was aft-[147] er this case had been carried before the Board of General Appraisers and the evidence had been taken, the Treasury Department (T. D. 14912) held that in the absence of any provision of law to prevent the importation of both free and dutiable secondhand bags baled together, collectors might pursue the course of examining the designated number of packages, making such investigation of their contents as would reveal the character of the bags contained therein, and then adopt the finding of the appraisers as the basis of the assessment of duty on bales not examined. And since then it has been determined that importers of bags must have bags of foreign and bags of domestic origin packed separately. T. D. 18425.

Notwithstanding the positions taken by the importers are, as we have seen, untenable, we are not disposed to hold, in the light of these rulings of the Department and the special circumstances of the case, that, if the proportion of dutiable bags sufficiently appeared or might reasonably have been ascertained, the circuit court could not have adjudged a recovery in that proportion, or directed a reliquidation.

A re-examination de novo is now impracticable, but it appears to us that the evidence taken by the Board affords an adequate basis for a conclusion. The examiner testified that he found "along about 80 to 86 per cent foreign make;" "in general from seventy-five to eighty per cent;" and that, in his judgment, there was no invoice "that would show over twenty-five per cent of American bags;" yet he also said that he could not give specific details of each invoice, and that he "supposed if seventy-five per cent of the bags in the bale were of foreign manufacture, it carried the whole of them."

But these importers planted themselves on the ground that all these bags were exempt under the act of 1875; or, if not, that the as- In view of this testimony, and considersessment was wholly void for insufficient ex-ing that the statute was not strictly pursued amination; or illegal except as to foreign-in the examination (though we perceive no made bags, which it devolved upon the government to segregate from the common mass. In the case of Kent, already referred to, it was decided by the Board of General Appraisers, February 3, 1894 (G. A. 2448), that the act of February 8, 1875, was not in force, and a reliquidation was ordered for a classification according to the proportion of foreign and American bags found in two bales which by agreement had been examined as representative bales, bag by bag. On the second of May, 1894 (G. A. 2610), the Board of General Appraisers held, in the matter of Balfour, Guthrie, & Company, that inasmuch as bags made of burlaps were dutiable, except such as are described in paragraph 398

reason to doubt the faithfulness of the of
ficials in the discharge of their duties), and
the difficulties in the way of determining
the make of the bags disclosed by the evi-
dence, and bearing in mind that the taxation
of so many of the bags as were of American
manufacture operated as a penalty in *spite[148]
of the concession that no fraud on the reve-
nue was intended, we think it unnecessary
to remand the cause for another hearing,
and that the ends of justice will be best sub-
served by directing a decree for the refund-
ing of one-fourth of the duties paid.

Decree reversed, and cause remanded with a direction to enter such a decree.

172 U. S.

I. R. HARKRADER, Sheriff of Wythe Coun- fully represents and shows to this honorable

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1. A final order overruling the return of the sheriff and discharging a prisoner from custody on writ of habeas corpus, made at a stated term of the circuit court of the United States, is appealable, although the original order was made at chambers.

2. An order discharging a prisoner on writ of habeas corpus, which, if valid, takes away his custody from the state court and puts an end to his imprisonment under the process appeal to this court, although he is dis

of that court, is final for the purpose of an

charged only pending an injunction. 8. An injunction against a criminal prosecution in a state court under a valid state law, of a bank officer for embezzlement, cannot be granted by a Federal court because it had previously obtained jurisdiction in equity cases in which a receiver of the bank had been appointed and the civil liability of such officer was in litigation.

4.

A court of equity, although having jurisdic tion over person and property in a case pending before it, is not thereby vested with jurisdiction over crimes committed in dealing with such property by a party before the civil suit was brought, and cannot restrain by injunction proceedings regularly brought in a criminal court having jurisdiction of the crime

and of the accused.

5. A circuit court of the United States sitting in equity in the administration of civil remedies has no jurisdiction to stay by injunction proceedings pending in a state court in the

court that he is a citizen of the United States of America and a citizen of the state of North Carolina, and a resident of the city of Wilmington in that state; that he is unjustly and unlawfully detained and imprisoned in the county jail of Wythe county, Va., at Wytheville, Va., in the custody of I. R. Harkrader, sheriff of said county, and as such of a warrant or order of commitment made the warden and keeper of said jail, by virtue by the county court of Wythe county, Va., at Wytheville, Va., on Monday, the 10th day of August, 1896, a copy of which order or warrant of commitment is hereto annexed, marked Exhibit "A."

Your petitioner would now show that on a petition filed by him before the Honorable Charles H. Simonton, United States Circuit Court Judge for said fourth circuit, embracing said western district of Virginia, on the 5th of August, 1896, the said honorable judge, Simonton, entered an order on said petition allowing it to be filed in the equity cause of H. G. Wadley v. Blount & Boynton et als., pending in said court, and on said petition, duly verified and sustained by affidavits, the said honorable judge, Simonton, on said 5th day of August, 1896, in accordance to the prayer of said petition, granted an injunction against Robert Sayers, the commonwealth's attorney of Wythe county, Va., J. A. Walker and C. B. Thomas, special prosecutors, and the creditors embraced in said petition, together with their counsel, from all further proceedings in said county court of Wythe upon an indictment obtained against the said H. G. Wadley in said county court on the 16th day of May, 1894, and especially from exacting or requiring any bail or any commitment to imprisonment of said H. G. Wadley on said indictment in said county court.

A certified copy of the said petition which name of the state to enforce the criminal of August, 1896, is herewith filed, marked was presented to Judge Simonton on the 5th[150]

laws of such state.

[No. 41.]

Exhibit "B", and a certified copy of the
said order of Judge Simonton of the 5th of
August, 1896, on said petition is likewise

Argued October 17, 1898. Decided December herewith filed, marked Exhibit "C."
5, 1898.

APPEAL from

an order of the Circuit Court of the United States for the Western District of Virginia discharging H. G. Wadley, a prisoner, from custody, on writ of habeas corpus. Reversed and cause remanded with directions to restore the custody of said Wadley to the sheriff of Wythe County, Virginia.

Statement by Mr. Justice Shiras:

In the circuit court of the United States for the western district of Virginia, one H. [49]G. Wadley filed a petition, signed and sworn to August 10, 1896, praying for the allowance of a writ of habeas corpus. The petition was as follows:

To the Honorable Circuit Court of the United States in and for the Western District of Virginia, at Abingdon, Va., Fourth Circuit.

Your petitioner, H. G. Wadley, respect

Your petitioner, H. G. Wadley, would fur31st of January, 1895, on ther show that heretofore, to wit, on the theretofore awarded by him to your petitionan injunction er in his case of H. G. Wadley v. Blount & Boynton et als.. in this court, by the Honorafully sustained the contention of your petible Nathan Goff, he, by a decree of that date, tioner by refusing to dissolve said injunction and continuing it in full force, and by said decree enjoined and prohibited all further prosecution of said indictment in the county court of Wythe county, Va., as shown by copy of the said decree and the opinion of the Honorable Nathan Goff, herewith filed, marked Exhibit "D.”

Your petitioner had hoped that after this final decree in the United States circuit court by the Honorable Nathan Goff on said injunction, prohibiting all further prosecution of said indictment, that the order of that honorable court would have been obeyed; but that was a vain conjecture, as the said Robert

Sayers, commonwealth's attorney of Wythe
County, Va., and said special prosecutors, J.
A. Walker and C. B. Thomas, persisted and
continued, from term to term or from time
to time, in calling up said indictment in said
county court, and asking for a continuance
of the said indictment and for the commit-
ment of the said H. G. Wadley to the county
jail of Wythe county, and he was bailed
with sureties for his appearance before the
said county court to appear on Monday, the
10th of August, 1896, being the first day of
the August term of the said county court.
Your petitioner would now show that not-er, illegally taken from the files of the said
withstanding the fact that the honorable
judge, Simonton, as aforesaid, did on the 5th
of August, 1890, enter said order especially
forbidding any further order in said case in
said court except a mere order of continu-
ance, and although copies of the said order
were duly executed on said commonwealth at-
torney, Robert Sayers, and on said special
prosecutors, J. A. Walker and C. B. Thomas,
and all of the creditors named in said peti-
[151]tion and upon their counsel of record by the
marshal for the western district of Virginia;
which order was duly executed on Saturday,
the 8th of August, 1896-

ors having themselves summoned before the
grand jury of the county court of Wythe
county, Va., on the 16th of May, 1894, and
carrying before the grand jury and reading[152]
to them a copy of the deposition of your peti-
tioner, which had been taken of petitioner in
an equity suit of Blount & Boynton et als. v.
H. G. Wadley, et als., and thus indirectly by
said record or deposition from the United
States court taken in a cause in that court
indirectly required petitioner to testify
against himself in a criminal case, and upon
the mere copy of said deposition of petition-
cause in the United States court and read to
said grand jury of Wythe county, petitioner
was indicted. A copy of said indictment is
fully set forth, with said exhibit, along with
the petition filed on the 5th of August, 1896,
and is here referred to as a part of this peti-
tion.

Your petitioner, H. G. Wadley, would now show that in flagrant and contemptuous violation of both of the orders named, that of the Honorable Nathan Goff, of the 31st of January, 1895, prohibiting all further prosecution of said indictment, and in violation likewise of the said order of the Honorable Charles H. Simonton of the 5th of August, 1896, upon the calling of the said indictment this day in said county court of Wythe county, Va., the said commonwealth's attorney and one of the special prosecutors asked for a continuance and stated that they had nothing to do with the question of bail or with the question of the commitment of petitioner, but that that was the duty of the court, and thus indirect ly accomplished what the order of Judge Simonton in express words prohibited, for the said commonwealth's attorney and special prosecutors, instead of asking a compliance by the said county court with the order of Judge Simonton, indirectly asked the court to commit him by saying it was the duty of the court to do so, and thereupon W. E. Fulton, the judge of the county court of Wythe county, Va., in violation of said orders of the United States court, did order the said petitioner, H. G. Wadley, to be committed to the sheriff of Wythe county, to keep and hold him over to answer said indictment, which is now enjoined by the said United States court, and your petitioner is now in the custody of the sheriff of Wythe county, at Wytheville, who is ex officio the warden and jailer of said county, and your petitioner is thus deprived of his personal liberty by the said court on its own motion committing petitioner to the custody of the jailer of Wythe county, Va., procured as aforesaid.

Petitioner avers that his term of impris onment, now complained of, began on the 10th day of August, 1896, at 12 o'clock M., and that such imprisonment still continues, and that he is now in the custody of the said sheriff, as such jailer, at Wytheville, Va.

Your petitioner will now show that his detention and imprisonment as aforesaid is illegal in this, to wit:

First. That this court, by two decrees, that of Judge Goff of 31st of January, 1895, as also by the second order of Judge Simonton of 5th of August, 1896, declares and adjudicates the prior jurisdiction of the said United States court, both of the person of your petitioner, and also of the subject-matter of the controversy and of the issues involved in said indictment, and that said prior jurisdiction of the said United States court renders such detention and imprisonment of prisoner by said county court illegal.

Second. That, as stated by the Honorable Nathan Goff in his petition filed with his order of the 31st of January, 1895, in the injunction case, the indictment against petitioner in said county court of Wythe county, Va., was obtained against him illegally and in violation of his constitutional rights as a citizen of the United States, by the misuse and abuse of the records of the United States court, in the withdrawal therefrom of a copy of the deposition of petitioner taken in said court in said equity cause and read and used *before the said grand jury of said county[153] court of Wythe as the foundation of said in

dictment.

Wherefore, to be relieved from said unlawful detention and imprisonment, your petitioner, H. G. Wadley, prays that a writ of habeas corpus, to be directed to I. R. Harkrader, sheriff of Wythe county, Va., at Wytheville, Va., and keeper of the said jail of the said county, and in whose custody petitioner now is, may issue in his behalf, so that your petitioner, H. G. Wadley, may be forthwith brought before this court, to do, Petitioner avers that the said indictment submit to, and receive what the law may diupon which petitioner was committed was il-rect, and upon the hearing thereof that your legally and improperly obtained, in violation honor will discharge petitioner from all furof petitioner's rights as a citizen of the Unit-ther custody or imprisonment, and that he ed States, by the counsel for the said credit-go hence without bail.

There was attached to said petition the | as aforesaid, by themselves on 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 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-
from.

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

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 subThat this bill of injunction and for repœna duces tecum issued from the clerk's lief be treated as incidental to said suit now office of this court, requiring said clerk and pending in your honor's said court at Abing[154]said receiver to produce said papers, books, don; that your honor may grant a writ of and documents before this court on the trial injunction issuing out of and under the seal of this prosecution, and that since said order of this honorable court, restraining and enwas 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, inney for the commonwealth aforesaid, pro- cluding their attorneys, clerks, and agents, cured subpoena duces tecum to be regularly either directly or indirectly, through their issued from the clerk's office of this court for own agency or through the agency of others, said I. C. Fowler, clerk as aforesaid, resid- from in any manner using against orator in ing in Abingdon, Virginia, and H. B. Mau- any other court, state or Federal, in any oth pin, 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 said order was entered by the United States pany, in the possession or that came under 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 mas restraining 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.

26

401.

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.

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 on their counsel shall be equivalent to perof them in the criminal procedure now pend-sonal service on them. ing 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:

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.
Enter.
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, before Charles H. Simonton, judge of the circuit court of the United States within and for said district aforesaid, on August 14,

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:

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 affidavits and the said exhibits and transcripts, the court is of opinion that the equity jurisdiction of the United States In the matter of the petition of H. G. court above named first attached to both the Wadley and the writ of habeas corpus ad persons and the subject-matter involved in subjiciendum which issued from the clerk's [157]aid suits *in equity, and that it is improper office of the Circuit Court of the United that the records of the pleadings, proofs, States for the Western District of books, and papers filed in and parts of said Virginia on the 11th day of August, 1896, equity suits now in litigation and pending and returnable on the 14th day of August, unadjudicated in this court between said 1896, in the town of Wytheville, Wythe parties, or copies thereof, should be with-county, Virginia, this respondent, for answer drawn therefrom and used by anyone in any to the said writ, says that he here produces 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

the body of the said H. G. Wadley, the per-
son named in the said petition for the said
writ, in obedience to the command and di-
rection thereof, and for further return and
answer to said writ here avers that he de-
tained 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 Com-
monwealth 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

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