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Habere Facias Possessionem.

into the extent of the power thus conferred, the courts of the United States are not required to limit the application of the writ to cases to which it is limited in England, so far as it depends upon the British statute, viz., to cases of commitment under criminal process; but may apply it to all cases which it would reach at common law, viz., to commitments under civil, as well as criminal process; for although the common law is not a source of jurisdiction in the courts of the United States, it is necessarily referred to for the definition and application of terms. Ex parte Randolph, 2 Brockenb. C. C. R. 447.

to as describing the cases in which relief is, in | plies as well to cases of commitment under civil, England, afforded by this writ to a person de-as to those under criminal process. In inquiring tained in custody. It enforces the common law. This statute excepts from those who are entitled to its benefit persons committed for felony or treason, plainly expressed in the warrant; as well as persons convicted or in execution. The writ, as has been said, is of the nature of a writ of error, which brings up the body of the prisoner, with the cause of confinement. The court can, undoubtedly, inquire into the sufficiency of that cause. But if it be the judgment of a court of competent jurisdiction, especially a judgment withdrawn by law from the revision of this court, is not that judgment, in itself, sufficient cause? Can the court, upon this writ, 12. The authority of the courts of the United look beyond the judgment, and re-examine the States, or of its judges, to issue writs of habeas charges on which it was rendered? A judgment, corpus, under the fourteenth section of the judiin its nature, concludes the subject on which it ciary act of 1789, is restricted to cases where is rendered, and pronounces the law of the case. the prisoner is confined under or by colour of the The judgment of a court of record, whose juris-authority of the United States, or is committed diction is final, is as conclusive on all the world, as the judgment of this court would be. It is as conclusive on this court, as it is on the other courts. It puts an end to inquiries concerning the fact, by deciding it. Ibid.

9. As the jurisdiction of the supreme court is appellate, it must be shown to the court that the court has the power to award a habeas corpus before one will be granted. Ex parte Milburn, 9 Peters, 704.

for trial before some court of the United States, or is necessary to be brought in to testify. Ex parte Cabrera, 1 Wash. C. Č. R. 232.

13. Where the principal is confined in jail, under civil process of a state court, the circuit court has no authority to issue a habeas corpus, for the purpose of bringing him in to be surren dered by his bail. United States v. French, 1 Gallis. C. C. R. 2.

14. Neither the supreme court, nor any other court of the United States, has authority to issue a habeas corpus for a person imprisoned or in custody under the sentence, or held under an execution issued by a court of any state. A habeas corpus ad testificanda may be issued to bring up such a person. Ex parte Dorr, 3 How ard, 624.

HABERE FACIAS POSSESSIONEM.

10. George Milburn was imprisoned in the gaol of the county of Washington, upon a bench warrant issued by the circuit court of the United States for the District of Columbia, to answer an indictment pending against him for keeping a faro bank, an offence which, by an act of congress, is punishable by imprisonment at hard labour in the penitentiary of the district. He had been arrested on a former capias, issued on the same indictment, upon which he gave a recognisance of bail, with sureties, in the sum of one hundred pounds, Maryland currency, according to the statute of Maryland, conditioned 1. In the execution of a writ of habere facias to appear in court at the return day of the pro- possessionem, if adverse possession be held, the cess, &c. He did not appear, and the recogni- officer is first to turn out the occupant, and take sance was forfeited, and a scire facias was is- possession in the name of the law; and aftersued against him and his sureties, returnable towards deliver it to the plaintiff in the ejectment. December term, 1833. At the same term another writ of capias was issued against him, returnable immediately, and returned "non est inventus." At June vacation, 1834, another writ of capias was issued against him, returnable to November term, 1834, on which he was arrested, and from which arrest he was discharged on a habeas corpus by the chief justice of the circuit court, on the ground that the writ of capias improperly issued. On a return of this discharge by the marshal, a bench warrant was issued by order of a majority of the judges of the circuit court, and on which he was in custody. He applied for a writ of habeas corpus to this court, to obtain his discharge. Held, that he was properly in custody. The rule for the habeas corpus was refused. Ibid.

11. The act of congress, authorizing the writ of habeas corpus to be issued, "for the purpose of inquiring into the cause of commitment," ap

The offence of obstructing process, consists in refusing to give up possession, or in opposing or obstructing the execution of the writ by threats of violence, which it is in the power of the person to enforce, and thus preventing the officer from dispossessing the person so acting. United States v. Morrow Lowry et al., 2 Wash. C. C. R. 169.

2. The circuit court of Tennessee, sitting as a court of equity, cannot award a writ of habere facias possessionem to enforce its decree. Wallen v. Williams, 7 Cranch, 602; 2 Cond. Rep. 622.

3. The defendant cannot call upon the marshal to return a writ of habere facias possessionem, although the plaintiff may do so. Penn's Lessee v. Klein, 4 Wash. C. C. R. 64; United States v. Slaymaker, 4 Wash. C. C. R. 169.

4. If after the plaintiff is put in possession, under a writ of habere facias possessionem, he

Half-Blood-Heads of the Public Departments of the Government.

is turned out by the defendant, he may, upon suggesting, vice comes non misit breve, obtain an attachment, or another writ of habere facias; aliter, if he is turned out by a stranger. Ibid.

5. If the first writ be returned executed, the plaintiff cannot sue out an alias. If the writ, though executed, be not returned, and an alias issues on the suggestion of the plaintiff, resistance to such a writ is an offence. Ibid.

6. The habere facias cannot be executed after the return day; and if it be attempted, resistance is no offence against the act of congress. Ibid.

7. After a conveyance to a third person of land which has been recovered in ejectment, a scire facias, or a habere facias possessionem, may issue in the name of the original plaintiff. Lessee of Penn v. Klein et al., Peters' C. C. R.

446.

8. Where the lessor of the plaintiff in ejectment dies after judgment, a habere facias may issue in the name of the lessee, without a scire facias. Ibid.

HALF-BLOOD.

1. Under the statute of descents of Rhode Island, of 1822, brothers and sisters of the halfblood inherit equally with those of the whole blood. Gardner v. Collins, 3 Mason's C. C. R.

398.

2. The statute of descents of Rhode Island, of 1822, enacts, "that when any person having title to any real estate of inheritance shall die intestate as to such estate, it shall descend, and pass in equal portions to his or her kindred in the following course." It then provides, "if there be no father, then to the mother, brother, and sister of such intestate, and their descendants, or such of them as there be ;" and then declares, in the nature of a proviso, that "when the title to any estate of inheritance, as to which the person having such title shall die intestate, came by descent, gift, or devise from the parent or other kindred of the intestate, and such intestate die without children, such estate shall go to the kin next to the intestate, of the blood of the person from whom such estate came or descended, if any there be." ters, 58.

that the remaining one-third, which Mary C. Gardner took by immediate descent from her mother, belongs to the heirs of the whole blood of John Collins. Ibid. 86.

4. The phrase "of the blood," in the statute, includes the half-blood. This is the natural meaning of the word "blood," standing alone, and unexplained by any context. A half-brother or sister is of the blood of the intestate; for each of them has some of the blood of a common parent in his or her veins. A person is, with the most strict propriety of language, affirmed to be of the blood of another, who has any, however small, a portion of the same blood derived from a common ancestor. In the common law, the word "blood" is used in the same sense. Whenever it is intended to express any qualification, the word whole or half blood is generally used to designate it, or the qualification is implied from the context, or known principles of law. Ibid. 87.

5. A descent from a parent to a child, cannot be construed to mean a descent through, and not from a parent. So a gift or devise from a parent, must be construed to mean a gift or devise by the act of that parent, and not by that of some other ancestor more remote, passing through the parent. Ibid. 90.

6. It is true, that in a sense an estate may be said to come by descent from a remote ancestor to a person upon whom it has devolved, through many intermediate descents. But this, if not loose language, is not that sense which is ordinarily annexed to the terms. When an estate is said to have descended from A to B, the natural and obvious meaning of the words is, that it is an immediate descent from A to B. Ibid. 91.

7. At the common law, a man might soinetimes inherit who was of the whole blood of the intestate, who could not have inherited from the first purchaser. As in the case of a purchase of an estate by a son who dies without issue, and his uncle inherits the same, and dies without issue, the father may inherit the same from the uncle, though he could not inherit from his own son.

Ibid.

Gardner v. Collins, 2 Pe- HEADS OF THE PUBLIC DEPARTMENTS
OF THE GOVERNMENT.

1. Where the heads of the departments of the government are the confidential officers of the government, merely to execute the will of the President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy. Marbury v. Madison, 1 Cranch, 137; 1 Cond. Rep. 267.

3. An estate situated in Rhode Island, was devised by John Collins to his daughter, Mary Collins, in fee; Mary Collins intermarried with Caleb Gardner, and upon her death, in 1806, the estate descended to her three children, John, George, and Mary C. Gardner. John and George Gardner died intestate, and without issue, and Mary C. Gardner, as heir to her brothers, became seised of the whole estate, and died in 1822. Held, that under the provisions of the law of descents of Rhode Island, two-thirds of the estate of Mary C. Gardner descended to Samuel F. Gardner, Eliza Phillips, formerly Eliza Gardner, and Mary Clarke, formerly Mary Gardner, children of Caleb Gardner, by a former marriage, they being brothers and sisters of the 2. The United States instituted a suit to recohalf-blood of Mary C. Gardner; it being admitted | ver a balance charged on the books of the trea

Heads of the Public Departments of the Government.

Bury department against the defendant, who was
a clerk in the navy department, upon a fixed
annual salary, and acted as agent for the pay-
ment of moneys due to the navy pensioners, the
privateer pensioners, and for navy disbursements,
for the payment of which, funds were placed in
his hands by the government. He had received
an annual compensation for his services in the
payment of the navy pensioners; and for fifteen
years he had received, in preceding accounts,
commissions of one per cent. on the moneys paid
by him on navy disbursements. He claimed
these commissions at the treasury, and the claim
had been there rejected by the accounting offi-
cers; and if allowed the same, he was not now
indebted to the government. The United States,
on the trial of the case in the circuit court, de-
nied the right of the defendant to these commis-
sions, as they had not been allowed to him by
any department of the government, and asserted
that the jury had not power to allow them on
the trial. Held, The rejection of the claim to
commissions by the treasury department formed
no objection to the admission of it as evidence
of set-off before the jury. Had the claim never
been presented to the department, it could not
have been admitted as evidence by the court.
But, as it had been made out in form and pre-
sented to the proper accounting officers, and had
been rejected, the circuit court did right in sub-
mitting it to the jury, if the claim was considered
as equitable. It would be a novel principle to
refuse payment to the subordinates of a depart-
ment, because their chief, under whose direction
they had faithfully served the public, had given
an erroneous construction to the law. The se-tary of the Navy, 14 Peters, 497.
cretary of the navy, in authorizing the defendant
to make the disbursements on which the claim
for compensation is founded, did not transcend
those powers, which, under the circumstances
of the case, he might well exercise. United
States v. Macdaniel, 7 Peters, 1.

6. On the 3d day of March, 1837, congress passed an act giving to the widow of any officer who had died in the naval service of the United States, authority to receive out of the navy pension fund, half the monthly pay to which the deceased officer would have been entitled under the acts regulating the pay in the navy, in force on the 1st of January, 1835. On the same day, a resolution was adopted by congress, giving to Mrs. Decatur, widow of captain Stephen Decatur, a pension for five years, out of the navy pension fund, and in conformity with the act of 30th June, 1834, and the arrearages of the half-pay of a post-captain from the death of commodore Decatur, to the 30th June, 1834; the arrearages to be vested in trust for her by the secretary of the treasury. The pension and arrearages, under the act of 3d March, 1837, were paid to Mrs. Decatur, on her application to Mr. Dickerson, the secretary of the navy; under a protest by her, that by receiving the same she did not prejudice her claim under the resolution of the same date. She applied to the secretary of the navy, for the pension and arrears, under the resolution; which were refused by him. Afterwards she applied to Mr. Paulding, who succeeded Mr. Dickerson as secretary of the navy, for the pension and arrears, which were refused by him. The circuit court of the county of Washington, in the District of Columbia, refused to grant a mandamus to the secretary of the navy, commanding him to pay the arrears, and to allow the pension under the resolution of March 3d, 1837. Held, that the judgment of the circuit court was correct. Decatur v. Paulding, Secre

3. The President of the United States speaks and acts through the heads of the several departments, in relation to subjects which appertain to their respective duties; both military posts and Indian affairs, including Indian agencies, belong to the war department. A reservation of land, made at the request of the secretary of war, for purposes in his department, must be considered as made by the President of the United States. Wilcox v. M'Connell, 13 Peters,

300.

4. It is to the department of state that a reference must be made for the official acts of the President, in relation to such public measures as are not immediately connected with the duties of some other department. Lockington v. Smith, Peters' C. C. R. 466.

5. The President may direct some other department to make known such measures as he may establish; after the President had established such regulations as he deemed necessary in relation to alien enemies, it was not necessary to call in the aid of the judicial authority, on all occasions, to enforce them; and the marshal could not act without such authority.

Ibid.

7. In the case of Kendall v. The United States, 12 Peters, 527, it was decided by the supreme court, that the circuit court for Washingtor. county, for the District of Columbia, has the power to issue a mandamus to an officer of the federal government, commanding him to do a ministerial act. Ibid.

8. In general, the official duties of the head of one of the executive departments, whether imposed by act of congress or by resolution, are not mere ministerial duties. The head of an executive department of the government, in the administration of the various and important concerns of his office, is continually required to exercise judgment and discretion. He must exercise his judgment in expounding the laws and resolutions of congress, under which he is from time to time required to act. If he doubts, he has a right to call on the attorney-general to assist him with his counsel; and it would be difficult to imagine why a legal adviser was provided by law for the heads of departments, as well as for the President, unless their duties were regarded as executive, in which judgment and discretion were to be exercised. Ibid.

9. If a suit should come before the supreme court which involved the construction of any of the laws imposing duties on the heads of the executive departments, the court certainly would not be bound to adopt the construction given by the head of a department. And if they supposed his decision to be wrong, they would, of course,

Heir.

6. Under the statute of descents of Rhode Island, of 1822, brothers and sisters of the halfblood inherit equally with those of the whole blood. Gardner v. Collins, 3 Mason's C. C. R. 398.

so pronounce their judgment. But the judgment | ment is entered against them by default, for of the court upon the construction of a law, must want of a plea, upon a summons and count be given in a case in which they have jurisdic- against the original defendant, they may sue out tion, and in which it is their duty to interpret a writ of error and reverse the judgment. Mackthe act of congress, in order to ascertain the er's Heirs v. Thomas, 7 Wheat. 530; 5 Cond. rights of the parties in the cause before them. Rep. 334. The court could not entertain an appeal from the decision of one of the secretaries, nor revise his judgment in any case where the law authorized him to exercise his discretion or judgment. Nor can it, by mandamus, act directly upon the officer, or guide and control his judgment or dis- 7. The statute of descents of Rhode Island, cretion in the matters committed to his care in of 1822, enacts, "that when any person having the originary discharge of his official duties. title to any estate of real inheritance shall die The interference of the court with the perform-intestate as to such estate, it shall descend, and ance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief; and this power was never intended to be given by them. Ibid. 10. The principles stated and decided in the case of Kendall v. The United States, 12 Peters, 610 and 614, relative to the exercise of jurisdiction by the circuit court of the District of Columbia, where the acts of officers of the executive departments of the United States may be inquired into for the purpose of directing a mandamus to such officers, affirmed. Ibid.

HEIR.

1. The lands of a deceased debtor, in Georgia, by the construction given by the courts of Georgia to the statute of 5 George II., are liable in equity for the payment of his debts, under the laws of that state, without making the heir a party to the suit. Telfair et al. v. Stead, 2 Cranch, 407; 1 Cond. Rep. 434.

2. The statute of descents in Maryland, has not declared how an intestate estate shall descend, which the intestate derived from his halfbrother, or from his brother of the whole blood, or from his son or daughter, or from his wife; but such estates are left to descend as at common law. Barnitz's Heirs v. Casey, 7 Cranch, 456; 2 Cond. Rep. 561.

3. It seems very clear, that at common law, contingent remainders and executory devises are transmissible to the heirs of the party to whom they are limited, if he chance to die before the contingency happens. In such case it does not vest absolutely in the first heir, so as on his death to convey it to his heir at law, who is not heir at law of the first devisee, but it devolves from heir to heir, and vests absolutely in him only who can make himself heir to the first devisee when the contingency happens, and the executory devise falls into possession. Ibid.

4. An heir may claim by title distinct from, or paramount to that of his ancestor; and if his possession is exclusive under such claim, and he holds all other persons out until the statute period has run, he is entitled to the full benefit and protection of the bar. Ricard v. Williams et al., 7 Wheat. 59; 5 Cond. Rep. 238.

5. If the heirs be made parties, by order of the court in which the suit is brought, and judg

pass in equal portions to his or her kindred in the following course." It then provides, "if there be no father, then to the mother, brother, and sister of such intestate, and their descen dants, or such of them as there be;" and then declares, in the nature of a proviso, that "when the title to any estate of inheritance, as to which the person having such title shall die intestate, came by descent, gift, or devise from the parent or other kindred of the intestate, and such intestate die without children, such estate shall go to the kin next to the intestate, of the blood of the person from whom such estate came or descended, if any there be." Gardner v. Collins, 2 Peters, 58.

8. An estate, situated in Rhode Island, was devised by John Collins to his daughter, Mary Collins, in fee; Mary Collins intermarried with Caleb Gardner, and upon her death, in 1806, the estate descended to her three children, John, George, and Mary C. Gardner. John and George Gardner died intestate, and without issue, and Mary C. Gardner, as heir to her brothers, became seised of the whole estate, and died in 1822. Held, that under the provisions of the law of descents of Rhode Island, two-thirds of the estate of Mary C. Gardner descended to Samuel F. Gardner, Eliza Phillips, formerly Eliza Gardner, and Mary Clarke, formerly Mary Gardner, children of Caleb Gardner by a former marriage, they being brothers and sisters of the half-blood of Mary C. Gardner; it being admitted that the remaining one-third, which Mary C. Gardner took by immediate descent from her mother, belongs to the heirs of the whole blood of John Collins. Ibid. 86.

9. The phrase "of the blood," in the statute, includes the half-blood. This is the natural meaning of the word "blood," standing alone, and unexplained by any context. A half-brother or sister is of the blood of the intestate, for each of them has some of the blood of a common parent in his or her veins. A person is, with the most strict propriety of language, affirmed to be of the blood of another, who has any, how ever small, a portion of the same blood, derived from a common ancestor. In the common law, the word "blood" is used in the same sense. Whenever it is intended to express any qualifi cation, the word whole or half blood is generally used to designate it, or the qualification is implied from the context, or known principles of law. Ibid. 87.

High Seas.

10. A descent from a parent to a child cannot | session, to the grandchild, the father being then be construed to mean a descent through, and not from a parent. So a gift or devise from a parent, must be construed to mean a gift or devise by the act of that parent, and not by that of some other ancestor more remote, passing through the parent. Ibid. 90.

11. It is true, that in a sense, an estate may be said to come by descent from a remote ancestor to a person upon whom it has devolved, through many intermediate descents. But this, if not loose language, is not that sense which is ordinarily annexed to the terms. When an estate is said to have descended from A to B, the natural and obvious meaning of the words is, that it is an immediate descent from A to B. Ibid. 91.

12. At the common law, a man might sometimes inherit who was of the whole blood of the intestate, who could not have inherited from the first purchaser. As in the case of a purchase of an estate by a son who dies without issue, the father may inherit the same from the uncle, although he could not inherit from his own son. Ibid. 93.

13. By the law of descent of Maryland, a person claiming as heir must prove himself heir of the person last seised of the estate; and if an intestate leaves a brother of the whole blood, who survived him and died without issue, and without having been actually seised of the estate, the estate will descend to the half-blood of the person so seised. Chirac v. Reinecker, 2 Peters,

625.

14. It is admitted that the title of an heir by descent in the real estate of his ancestor, and of a devisee of an estate unconditionally devised to him, is, upon the death of the party under whom he claims, immediately devolved upon him, and he acquires a vested estate. But this, though true in a general sense, still leaves his title encumbered with all the liens which have been created by the party in his lifetime, or by law at his decease. It is not an unqualified, though it may be a vested interest, and it confers no title, except to what remains after every such lien is discharged. Wilkinson v. Leland et al., 2 Peters, 658.

dead; or from the uncle to the nephew, the bro. ther being dead; is in law an immediate descent, although the one is collateral and the other lineal, for the heir is in the per, and not in the per and cui. On the other hand, with reference to the line of pedigree or consanguinity, a descent is often said to be immediate, when the ancestor from whom the party derives his blood is immediate, and without any intervening link or degree; and mediate when the kindred is derived from them, medient altero, another ancestor intervening between them. Lessee of Levy v. M'Cartee, 6 Peters, 102.

17. A person born in England before 1775, and who never was in the United States, cannot take lands by descent in the state of Maryland. Dawson's Lessee v. Godfrey, 4 Cranch, 321; 2 Cond. Rep. 124.

18. The statute eleven and twelve Wm. III., ch. 6, which is in force in Maryland, removes the disability of claiming title by descent through an alien ancestor, but does not apply to the case of a living alien ancestor, so as to create a title by heirship where none would exist by the common law, if the ancestor were a natural born subject. M-Creery's Lessee v. Somerville, 9 Wheat. 354; 5 Cond. Rep. 608.

19. Thus, where M. died seised of lands in Maryland, intestate and without issue, leaving a brother R., an alien, and three nieces, daughters of R., who were natural born citizens of the United States, it was held, that they could not claim as heirs to M. through R. their father, he being an alien and still living. Ibid.

20. By the Massachusetts statutes of descents, reversions and remainders, after life estates vested in the descent in the intestate, pass to his heirs, without any regard to the ancestor from whom he inherited, in the same manner as estates in possession. Cook v. Hammond, 4 Mason's C. Č. R. 467.

21. The common law in such case is different, and gives the estate in reversion to the heir of the first purchaser or reversioner, who is heir at the time when the life estate expires. Ibid.

22. Under the act of 1793, ch. 36, the eldest son took a double portion in remainders and reversions, as well as in estates in possession. Ibid.

HIGH SEAS.

15. By the laws of Rhode Island, as well as of all the New England States, the real estate of intestates stands chargeable with a payment of their debts upon a deficiency of assets. Ibid. 16. Descents are, as is well known, of two sorts, lineal, as from father to son, or grandfather to son or grandson; and collateral, as from brother to brother, or cousin to cousin, &c. They are also distinguished into mediate and immediate. But here the terms are susceptible of different interpretations; which circumstance has introduced some confusion into legal discussions, since different judges have used them in different senses. A descent may be said to be mediate or immediate, in regard to the mediate 2. The words "nigh seas" in the crimes staor immediate descent of the estate or right; ortute of 1825, ch. 376, sec. 22, mean the uninit may be said to be mediate or immediate, in closed waters of the ocean, on the sea coast outregard to the mediateness or immediateness of side of the fauces terræ. United States v. Grush, the pedigree or degrees of consanguinity. Thus, 5 Mason's C. C. R. 290. a descent from the grandfather, who dies in pos

1. It is competent, on an indictment for piracy, for the jury to find that a vessel within a marine league of the shore, at anchor, in an open roadstead, where vessels ride under shelter of the land, is upon the high seas. United States v. Furlong et al., 5 Wheat. 184; 4 Cond. Rep. 623.

3. A father may maintain a suit in the admi

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