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of each separate parcel" the right to a separate trial. In such a case, therefore, a separate trial is the mode of proceeding in the state courts. The statute treats all the owners of a parcel as one party, and gives to them collectively a trial separate from the trial of the issues between the government and the owners of other parcels. It hath this extent, no more. The court is not required to allow a separate trial to each owner of an estate or interest in each parcel, and no consideration of justice to those owners would be subserved by it. The Circuit Court, therefore, gave to the plaintiffs in error all, if not more than all, they had a right to ask.

The judgment of the Circuit Court is affirmed.

FIELD, J., dissenting. --Assuming that the majority of the court are correct in the doctrine announced in the opinion just read, that the right of eminent domain within the states, using those terms not as synonymous with the ultimate dominion or title to property, but as indicating merely the right to take private property for public uses, belongs to the federal government to enable it to execute the powers conferred by the Constitution; and that any other doctrine would subordinate, in important particulars, the national authority to the caprice of individuals or the will of state legislatures, it appears to me that provision for the exercise of the right must first be made by legislation. The federal courts have no inherent jurisdiction of a proceeding instituted for the condemnation of property, and I do not find any statute of Congress conferring upon them such authority. The Judiciary Act of 1789 only invests the circuit courts of the United States with jurisdiction, concurrent with that of the state courts, of suits of a civil nature at common law or in equity; and these terms have reference to those classes of cases which are conducted by regular pleadings between parties, according to the established doctrines prevailing at the time in the jurisprudence of England. The proceeding to ascertain the value of property which the government may deem necessary to the execution of its powers, and thus the compensation to be made for its appropriation, is not a suit at common law or in equity, but an inquisition for the ascertainment of a particular fact as preliminary to the taking, and all that is required is that the proceeding shall be conducted in some fair and just mode, to be provided by law, either with or without the intervention of a jury, opportunity being afforded to parties interested to present evidence as to the value of the property and

Vol. XXIV.-66

to be heard thereon. The proceeding by the states in the exercise of their right of eminent domain, is often had before commissioners of assessment or special boards appointed for that purpose. It can hardly be doubted that Congress might provide for inquisition as to the value of property to be taken by similar instrumentalities, and yet if the proceeding be a suit at common law, the intervention of a jury would be required by the seventh amendment to the Constitution.

I think that the decision of the majority of the court in including the proceeding in this case under the general designation of a suit at common law, with which the circuit courts of the United States are invested by the eleventh section of the Judiciary Act, goes beyond previous adjudications and is in conflict with them.

Nor am I ablo to agree with the majority in their opinion, or at least intimation, that the authority to purchase carries with it authority to acquire by condemnation. The one supposes an agreement upon valuation and a voluntary conveyance of the property; the other implies a compulsory taking and a contestation as to the value: Beekman v. The Saratoga & Schenectady Railroad Co., 3 Paige 75; Railroad Co. v. Davis, 2 Dev. & Batt. 465; Willyard v. Hamilton, 7 Ham. (O.) 453; Livingston v. The Mayor of New York, 7 Wend. 85; Koppikus v. State Capitol Commissioners, 16 Cal. 249.

For these reasons I am compelled to dissent from the opinion of the court.

United States District Court, Western District of Tennessee.


The United States courts have power under the writ of habeas corpus to discharge persons from the custody of state officers, where it appears that they are held under a state law which seeks to punish them for cxecuting a law of the United States, or where the act for which they are held was done in pursuance of the process of a Federal court.

But where a party is in custody of a state officer under an indictment for lar. ceny and sets up as a justification for the act complained of a writ of replevin is. sued from a United States court, the latter court will on habeas corpus inquire into the fact whether its writ was fraudulently obtained for the purpose of carrying off

! We are indebted for this case to L. B. McFarland, Esq., of counsel for respondent.-Ed. Am. Law Reg.

the property, and if satisfied of that fact, will remand the relator to the custody of the state officer.

A writ regular on its face is a justification to the officer to whom it is addressed for everything that he may lawfully do under such an authority, but this rule does not extend to a party who has procured the writ by fraud.

This was a writ of habeas corpus addressed to the sheriff of Shelby county, Tennessee, requiring him to produce before the judge of this district the body of Waddy Thompson, alleged to be unlawfully detained by the respondent. In obedience to the writ the sheriff produced the petitioner, and returned that he held him by virtue of a capias issued upon indictments for larceny and horsestealing found by the grand jury of Shelby county. This return was neither traversed nor confessed and avoided as contemplated by the Revised Statutes, but the facts upon which Thompson claimed his discharge were substantially as follows :

That Mrs. Francis Wilkerson, a citizen of Missouri, having a claim to the possession of certain goods and chattels unlawfully detained by certain parties in Memphis, Tennessee, and having failed to obtain the same upon repeated demands, or to receive any satisfactory accounting therefor, on October 20th 1874, instituted an action of replevin in the Circuit Court of the United States for this district, intrusting the inauguration and conduct of the suit to one Arnett, an attorney of St. Louis, to whom she gave a power of attorney authorizing such suit; and to be aided, if necessary, by the relator, who was her son-in-law, and who also held a general power of attorney from her in relation to her matters of business ; that Arnett made the oath required by statute, and gave a bond, with Elijah Smith and Benjamin F. Carroll as sureties, whereupon process was issued requiring the marshal to take possession of the property in question and deliver it to the plaintiff, or her agent; that the writ was partially executed by the marshal taking possession of a portion of the goods and delivering them to Arnett. The petition further set forth that one Hendrix, one of the defendants in the replevin, made oath before a clerk of this court of the insufficiency of the bond, and obtained from the district judge an order suspending further proceedings; that horses and other property which had been placed in the possession of Arnett, were by his direction placed on a steamboat for the purpose of delivering them to his principal in Missouri; that these goods were landed on the Arkansas shore, a few miles above Memphis, when Hendrix, accompanied by armed companions, procured a steam tug, boarded his boat, and, by intimilation, induced Arnett and the relator to return the property that had been delivered to them by the marshal, under an agreement that the title to the same should be settled by civil suits then pending. The goods and horses were accordingly brought back and delivered to the defendants in the replevin suit; that, notwithstanding the writ had been duly issued by the clerk of this court, and executed by the marshal of this district, the defendants in the replevin suit procured indictments against the relator, Arnett, and the sureties upon the bond for perjury and larceny; that these indictments were intended to frustrate and delay the plaintiff in the replevin suit in the prosecution of her remedy by intimidating relator, and thereby to oust the Circuit Court of the United States of its rightful jurisdiction over this suit, and to drive the plaintiff to a remedy in the state court where by local influence defendants hoped to obtain an unfair advantage; that relator having given bonds upon these indictments, and returned to his home in Missouri, the firm of Hendrix, Carter & Co., defendants in the replevin suit, instituted an action against the relator and Mrs. Wilkerson, for malicious prosecution, in bringing this action of replevin, and that in this suit the property which she was attempting to recover was attached. He further charged that the criminal court had no jurisdiction to try him upon these indictments, and that he was unjustly restrained of his liberty ; that if guilty of any wrongful act whatever it was against the peace and dignity of the United States. He further claimed that he had a perfect right to do everything that was done towards the taking of the property named in the replevin, and was therefore not guilty of larceny or horse-stealing, and that the United States courts have exclusive jurisdiction over him for the punishment of the offence, if any there be. .

T. M. Brown, W. C. Folkes and J. J. Du Bose, for the relator.

L. E. Wright, attorney-general, L. B. Horrigan' and L. B. McFarland, for the sheriff.

Brown, District Judge. It is claimed by the relator that as the sheriff made no answer to the facts set forth in this petition they are to be taken as true, and that he is therefore entitled to his discharge. I think, however, he misapprehends the law upon this point. The petition is simply the basis upon which the writ

is issued. No copy of it is required to be served upon the respondent in the writ, who is required to make his return to the writ itself, and not by way of answer to the petition, which has performed its office as soon as the fiat is signed. A return may

be traversed or confessed and avoided by way of affidavit or oral testimony, but I know of no practice requiring an answer to be made to the petition itself. It would have been proper for the relator to confess and avoid the return by repeating in his denial the facts set up in the petition. This is evidently contemplated by section 760 hereafter quoted, though I know of no practice requiring it to be done. The testimony was taken as if the issue had been made upon the return, and as no objection was interposed to this course until the argument of the case, I shall proceed to dispose of it as if an issue had been made by the pleading.

By section 753 of the Revised Statutes, “the writ of habeas corpus shall in no case extend to a prisoner in jail, unless where he is in custody * * * for an act done or omitted, in pursuance of a law of the United States, or of an order, process or decree of a court or judge thereof.” Although the words used are those of exclusion, there is no doubt of the power of this court to issue a writ of habeas corpus in cases falling within the above provision.

By section 754 application must be made “ by complainant in writing, signed by the person for whose relief it is intended, setting forth the facts concerning the detention of the party restrained, in whose custody he is detained, and by virtue of what claim or authority, if known.”

By section 760 the petitioner “may deny any of the facts set forth in the return, or may allege any other facts that may be material in the case. Said denials or allegations shall be under oath."

By section 761 the judge “ shall proceed in a summary way to determine the facts of the case by hearing the testimony and argument, and thereupon to dispose of the party as law and justice require.”

The section first above quoted is substantially a re-enactment of the Act of 1833, commonly known as the “ Force Bill,” and was adopted in view of the nullification laws of South Carolina, by which an attempt had been made to punish officers of the United States for executing the laws of Congress within that

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