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state. But it is now settled that this act gives relief to one in state custody not only when he is held under a law of the state which seeks expressly to punish him for executing a law or process of the United States, but also when he is in such custody under a general law of the state, which applies to all persons equally, where it appears he is justified for the act done, because done in pursuance of the process of a United States court (United States ex rel. Roberts v. Jailer of Fayette County, 2 Abbott U. S. 277). At the same time the power given to the Federal courts thus to arrest the arm of the state authorities, and to discharge a person held by them is one of great delicacy, and should only be exercised where it clearly appears that justice demands it. Such power has rarely been invoked, except under circumstances tending to show strongly that the state was about to use its authority to oppress the party imprisoned in defiance of the laws of the general government. Nothing could render the act more justly odious than to permit the writ of habeas corpus to be employed to relieve a party from the legal consequences of crime against the sovereignty of a state.

If it appears, however, that the relator was justified by the process of this court in doing what he has done, the sections above quoted authorize and require his discharge. The testimony taken at considerable length reveals substantially the following facts :

The relator, who was son-in-law of Mrs. Wilkerson, bolding a general power of attorney from her, came to Memphis from Missouri, in the month of October 1874, accompanied by one Arnett, an attorney-at-law at St. Louis, for the purpose of asserting her claim to the property covered by the writ of replevin. With the view of hastening the disposition of the case, it was conceded by the learned counsel for the state, that the relator, in good faith, supposed that Mrs. Wilkerson was entitled to the possession of the property covered by the writ. On arriving at Memphis, he and Arnett put up at the Commercial Hotel, where they first met Carroll, who afterwards became one of the sureties upon the replevin bond. * * *

[Here the learned judge reviewed the testimony as to the means used in getting worthless securities on the replevin bond.]

After one or two ineffectual efforts he finally procured the services of an attorney, who drew an affidavit sworn to by Arnett, claiming the possession of the stock of liquors, and safe and contents in the store of Hendrix, Carter & Co., the entire stock in trade of a firm of nurserymen, and three horses belonging to parties not connected in any way with the other defendants, though the horses had been purchased of Hendrix, Carter & Co. It may also be observed here that Hendrix, Carter & Co. were in no way connected with the owners of the nursery, and that plaintiff proceeding properly would have been compelled to bring at least three, and probably four or five separate suits to recover possession of these distinct parcels. Upon this affidavit a sweeping writ of replevin was issued against defendants, commanding the marshal to take possession of all the property named in the writ, and to deliver the same to the plaintiff or her agent. Taking Arnett and his two sureties to the clerk's office, a bond was signed, prior to the issuing of the writ, by Arnett, as attorney for the plaintiff, by Homer B. Carroll, signing his name as Benjamin F. Carroll, and by Elijah Smith, whose true name, and, indeed, whose very existence is unknown. Each of these sureties swore that he was worth the sum of $30,000 in real estate in Shelby and Tipton counties. This was done in the presence and by direction of Thompson, who knew perfectly their utter insolvency. Shortly afterward Arnett advised Carroll to get out of town as soon as possible, which he proceeded to do by hiring a skiff to take him across the river. To secure the speedy service of the writ and transportation of the property, relator hired a steamboat plying between Memphis and Mound City, Arkansas, to wait over her usual time of departure, promising to pay ten dollars per hour for her detention. Deputies were dispatched from the marshal's office to different parts of the city where the property covered by the writ was lying. Six furniture wagons were sent to the nursery and about a thousand pots of flowers, besides knives, forks and spoons and other articles were loaded

upon them and hurried away to the steamer, which was lying in waiting to take them across the river. Several horses were seized by another deputy, who at once drove them on board the steamboat. Fifty or sixty drays were sent to the store of Hendrix, Carter & Co., for the purpose of removing their entire stock in a similar way, and loading it upon the boat. The relator formerly had a desk in their establishment, knew the office hours of the partners, and instructed the marshal not to go there until the book-keeper had gone away and locked the safe, and the steamer was on the point of departure. When the marsbal announced his intention to Hendrix of seizing all the goods in his establishment, Hendrix asked for a little time, went to the clerk's office to look at the bond, satisfied himself the suretics were insolvent, and made affidavit of the fact, when the district judge was telegraphed to to stop proceedings. The marshal refused to place the property on the boat, but put custodians in charge during the night. His suspicions were excited none too soon. Great anxiety was manifested by Thompson to get possession of this stock, but finding himself foiled the boat was compelled to put off without it. It proceeded to Mound City about sun-down, with Thompson, Arnett and Carroll, who had dismissed his skiff, on board. After arriving at Mound City, some of the defendants made up a party, hired a steam tug, went in pursuit, and compelled the return of the property. Relator afterwards returned to Memphis, saw the counsel employed by Hendrix, Carter & Co., confessed to him the bond was bogus and fraudulent; said they had him where he meant to get them, and promised if they would let him out he would furnish information to hold the clerk and marshal. - I take pleasure in saying there is not the slightest evidence to show that either of these officers or their deputies acted corruptly or in bad faith, although in view of the magnitude of the bond a little more care in approving it would have been commendable. The writ of replevin was soon after dismissed and his claim to the property abandoned.

This is but a bare outline of the facts fully proved-facts which the relator made but feeble attempt to deny. I am forced to the conclusion that it is a case of gross and infamous fraud practised upon the court.

It is claimed by the relator, however, that admitting this to be true, he is still entitled to his discharge, inasmuch as the writ of replevin was valid upon its face. There is no question that a writ valid upon its face will protect the officer executing it, notwithstanding it may have been irregularly issued, or may be voidable for want of jurisdiction. There is a clear distinction, however, between the officer who executes the writ and the party who procures it to be issued; as against the latter, it may be shown to be void from facts not appearing upon its face. From a multitude of cases drawing this distinction, I cite the following:

Lavacool v. Boughton, 5 Wend. 173; Lodes v. Phelps, 13 Wend. 48; Adkins v. Brewer, 3 Cow. 206; Whitney v. Schenfelt, 1 Den. 594 ; State v. Weed, 1 Fost. 262; Rogers v. Mulliner, 6 Wend. 597; Taylor v. Iresk, 7 Cow. 249.

By the Code of Tennessee, before a writ of replevin can be issued a bond must be filed in double the value of the property covcred by the writ. Whether the writ is totally void without such bond it is perhaps unnecessary to consider. There is no doubt that a writ of attachment issued without such bond where the statute requires it, is wholly void (see Drake on Attachments, &c.), and it is presumed that the same rule would be held to apply to writs of replevin, although in some states, where a bond is not required before the issuing of the writ, it is held that the writ is not thereby invalidated, if the bond is executed before the property is delivered to the plaintiff. There is a clear distinction between the statutes which require the bond to be executed before the property is delivered over, and those which require it before the issuing of the writ. In this case no bond was ever given. It is not merely a case of insufficiency of sureties, wbich may be renewed by order of the court. The relator procured the execution of the bond by sureties, whom he knew to be utterly irresponsible and at least one of whom forged the signature of a fictitious person.

The position assumed by relator is that if the writ upon its face authorized the taking, wbich is the subject of the larceny for which he is indicted, be “ is entitled to his discharge, notwithstanding the writ was procured by perjury, and used for the purpose of committing a larceny. Counsel cannot have fully apprehended the consequences of this doctrine. May a deputy marshal, holding a capias of this court, deliberately murder the party he is seeking to arrest ? There is no general power in the Federal courts to punish murder, and if discharged from the custody of the state, his crime would go practically unpunished. This court I think is bound to inquire into the legality of the use as well as the validity of the process itself. This was the view evidently taken by the learned judge for the District of Kentucky in the Roberts case above cited.

In Commonwealth v. Low, Thacher's Criminal Cases 477, it was held that if a man, having a right of action, makes use of a process which he knows he has no right to adopt, to get the property of his debtor, and with intent to defraud him, it is larceny.

It is well settled that a combination of two or more to accomVol. XXIV.-67

plish a lawful purpose by unlawful means is indictable as a conspiracy. Says Lord HALE (P. C. 507): “A. hath the mind to get the goods of B. into his possession, privately delivers an ejectment, and obtains judgment against a casual ejector, and thereby gets possession and takes the goods; if it were animo furandi, it is larceny.” So Lord COKE (3 Inst. 108): “If a man seeing the horse of B. in his pasture, and having a mind to steal him, cometh to the sheriff, and pretending the horse to be his, obtaineth the horse to be delivered to him by replevin, yet this is a felonious and fraudulent taking."

I have not lost sight of the concession in this case that relator supposed that he was entitled to the possession of this property. The question here is not whether he was entitled to the possession of this property; nor whether he was guilty of larceny in obtaining possession; not even whether he was entitled to possession, but whether he was justified by his writ in obtaining this possession. Now, nothing is better settled in the law of trespass than that an officer entitled to levy upon property becomes a trespasser ab initio by an abuse of the process. I am satisfied in this case that the relator commenced this suit not for the purpose of asserting a bona fide claim to the property, but of spiriting it away under the forms of law, and disposing of it before proceedings could be taken for its reclamation. It would be a stringe interpretation of the law, if, after having been guilty of forgery, fraud and subornation of perjury in procuring the process of this court, he could still claim to be protected by it in carrying out his schemes. I hold, then, that, although the marshal was protected by this writ in what he did in execution thereof, yet as to the relator in this case, it was fraudulent and void, and that so far from being entitled to protection by this court, his case should be laid before the next grand jury of this district, for such action as it may see fit to take, and the district attorney is directed to see that this is done. Provided, however, that no action be taken on any indictment until he shall have been discharged by a state court.

It results that the prisoner must be remanded to the custody of the sheriff of Shelby county.

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