Mackenzie v. Barrett

GROSSCUP, Circuit Judge,

after stating the facts, delivered the opinion of the court.

Whether appellant, on the record made, is entitled to the writ of habeas corpus prayed for, is not a question now before the court. The question presented and argued at this time is: Whatever may have been appellant’s right to the writ, has his suit therefor abated by the fact of his giving bond, thereby being released from actual custody pending the appeal.

The cause of action embodied in a habeas corpus proceeding can only be said to have abated, by the giving of bail pending the appeal, in case a writ in the first instance would lie for actual detention only, and would not lie for what may be called constructive detention. But the Supreme Court has held, Taylor v. Taintor, 16 Wall. 366 , 21 L. Ed. 287 , that when bail is given, the principal is not regarded as discharged, but only as delivered over to the custody of his sureties. The dominion of the sureties is a continuance only of the original imprisonment. When seized at the instance of the sureties, the seizure is not made by virtue of a new process. It is likened, rather, to the rearrest by the sheriff of an escaping prisoner. And this principle was applied in Cosgrove v. Winney, 174 U. S. 67 , 19 Sup. Ct. 598, 43 L. Ed. 897 ; though in that case the petitioner was in actual custody at the time the petition was filed.

The cases brought to our attention in support of the motion, are not in point. In Ex parte Baez, 177 U. S. 389 , 20 Sup. Ct. 673, 44 L. Ed. 813 , the Supreme Court, on original application to it, refused the writ, because on the face of the record it was seen that before the return could be made and the case heard, the time of restraint would have expired.

Cheong Ah Moy v. United States, 113 U. S. 216 , 5 Sup. Ct. 431, 28 L. Ed. 983 , was a case under the Chinese deportation act, in which the *966 petitioner had gone beyond the jurisdiction of the United States before tihe writ was applied for.

Wales v. Whitney, 114 U. S. 564 , 5 Sup. Ct. 1050, 29 L. Ed. 277 , was a case where, under the order of the Secretary of the Navy, an officer in the navy was ordered not to leave the District of Columbia. The court held, that except as a matter of naval discipline, the order exercised a moral restraint only, and not a legal restraint. None of these cases, or the other cases cited, detract from the proposition, that under the rulings of the Supreme Court, one under arrest, but at large on bail, is entitled to a writ the same as if the arrest was accompanied by actual imprisonment. The purpose of the writ of habeas corpus is to test the right of the court, or other body issuing the writ of arrest, to detain the person for any purpose; and the detention it seems, is sufficient, if it restrain the party of his right to go without question, or, as stated in the English case, cited in Taylor v. Taintor, without a string upon his liberty. The exact point was decided in Re Grice (C. C.) 79 Fed. 627 , by District Judge Swayne.

The motion is overruled.