dition the fugitive was called James Draper, the name by which he was indicted. There was evidence that his real Christian name was Thomas. But the court said that, taking the whole evidence together, it thought it had been correctly determined that the prisoner was the person intended to be given up, and this was sufficient. Where a State statute required the warrant to be under seal, it was held that an impression so indistinct as to be unintelligible was insufficient, and on that ground the warrant was declared to be void and the prisoner discharged. One of the judges, whose vision seems to have been clearer than that of the rest of the court, dissented, saying that, while the impression was faint, there was enough to his eye to satisfy his mind that it was the great seal of the State.

2

§ 626. Issuance of new Warrant. -Where a warrant of rendition was held on habeas corpus to be insufficient, the governor revoked it and issued a new one on the same requisition, which had also been held to be defective on the hearing. A second writ was refused on the ground that the record before the court did not show the first cause of arrest. The principle of res judicata does not apply to a case where a fugitive is arrested a second time on a second warrant issued for his rendition, though the offence charged is the same in both warrants. Nor is it any objection to the issuance of a second warrant that the fugitive has already been once surrendered for the offence charged, and has returned to the surrendering State after being admitted to bail in that from which he fled. "It may be," said the court, "that had this prisoner been discharged for want of prosecution, it would be in the discretion of the governor to refuse to order his arrest a second time; but where a recognizance is taken, and the prisoner fails to appear, the power of the governor to order a second arrest cannot be questioned." 5

1 People, ex rel., v. Pinkerton, 17 Hun, 199.

2 Vallad v. Sheriff, 2 Mo. 26.

3 Ex parte Powell, 20 Fla. 806.

4 Kurtz v. State, 22 Fla. 36.

5 In re Hughes, Phillips' (N. C.) Law, 57.

3

§ 627. Agent. The agent to receive the fugitive and convey him to the place of trial is appointed by the demanding executive. It is contemplated by the act of Congress that he should be so appointed. His expenses, as well as all other costs of the proceeding, are paid by the demanding State. In the performance of his duty he is given certain powers and is protected by the laws of the United States. 2 He is not, however, regarded as an officer of the national government, nor, where he acts beyond the authority conferred by act of Congress, is he to be considered as acting pursuant thereto. The recognition of the authority of the agent by the executive of the State on which the demand is made, by directing the delivery of the fugitive to him, sufficiently establishes such authority in that State. An agent acting within the scope of his duty is not liable to an action for false imprisonment, and the question of his motives is in such case immaterial; nor is he so liable where he transports the fugitive without unreasonable delay. But it was held in Georgia that an agent was liable to such an action where he arrested a person on a warrant of rendition improperly issued. Judge Bradley, of the supreme court of the District of Columbia, in a decision rendered on August 25, 1890, treated it as an evidence of abuse of process and a ground for discharge on habeas corpus, that a person held on a warrant of rendition, issued by the chief justice of the District, instead of being conducted to the Territory of Utah, from which the demand emanated, was for several days detained in various places of incarceration in and out of the District. 9

6

1

§ 5278, R. S.

2

§ 5279, R. S.

8 Robb v. Connolly, 111 U. S. 624; In re Mohr, 73 Ala. 503.

4 In re Bull, 4 Dill. 323.

5 Nichols v. Cornelius, 7 Ind. 611.

6 Matter of Titus, 8 Ben. 411; In re Burke, St. Paul and Minneapolis Pioneer Press, January 25, 1879.

7 Pettus v. Georgia, 42 Ga. 358.

8 Johnston v. Riley, 13 Ga. 97.

• Washington Evening Star, August 25, 1890.

§ 628. Early Doctrine. In an article in the Pennsylvania Law Journal in 1847,1 in relation to the surrender of criminals as between the States, we find the following statement: "There being no revisory tribunal by which executive action under these provisions can be controlled, very great irregularity in practice has arisen. With the exception of one or two decisions of individual judges sitting on habeas corpus, the only authorities bearing on the question are the opinions emanating from the executives of particular States in cases of collision." In Sergeant's Constitutional Law 2 we find a statement of an old case, entitled Ex parte Willard and Wife, decided by Judge Ray of South Carolina, in which it was held that the court had no authority to discharge on habeas corpus persons held in custody on a warrant of the governor of South Carolina for rendition to the State of New York, on a requisition of the governor of that State charging bigamy. The court held that the matter was exclusively of executive cognizance, and as such was by the operation of the Constitution and laws of the United States excepted out of the habeas corpus act. In course of time, however, and especially after the case of Ex parte Smith, in 1842, the courts began to grant writs with much frequency, until at length the practice became firmly established; and in many of the States express provision is made for the issuance of writs of habeas corpus in interstate cases. It was held by Judge Bradley, of the supreme court of the District of Columbia, in the case of one Bulliss, on August 25, 1890, that he had jurisdiction to grant

33 McLean, 121. See in this relation 18 Am. L. Rev. 136, 690.

a writ of habeas corpus to inquire into the legality of the detention of the relator, who was in the custody of the agent of the Territory of Utah on a warrant of surrender issued by the Chief Justice of the same court acting as chief executive of the District. 1

§ 629. Federal Courts. The power of the courts of the United States to issue writs of habeas corpus in cases of interstate rendition has since the case of Ex parte Smith, in 1842, frequently been exercised. The prisoner being delivered up under the Constitution and laws of the United States, he is held in custody under color of authority derived therefrom, and is entitled to invoke the judgment of the judicial tribunals of the United States as to the legality of his detention. But where a person who assumed to act as the agent of a State, instead of taking the fugitive to the demanding State, carried him away to a foreign country, and was subsequently indicted for kidnapping, on his return to the State on which the demand was made, Judge Dillon refused to issue a writ of habeas corpus to take him out of the custody of the State court. He said that the relator could not, under the circumstances, be held to have been acting pursuant to sections 5278 and 5279 of the Revised Statutes of the United States, and that a prisoner should not be discharged by a Federal court from the custody of a State court, unless it clearly appeared that he was held for an act done in pursuance of Federal authority and warranted by it.3 The Supreme Court of the United States cannot take jurisdiction of a certificate of division in opinion between the judges of a circuit court in proceedings under a writ of habeas corpus, until entry of final judgment. Section 763 of the Revised Statutes, which provides for an appeal in cases of habeas corpus to the circuit court from the final decision of the dis

1 Washington Evening Star, Aug. 25, 1890. Supra, §§ 627, 584.

2 Roberts v. Reilly, 116 U. S. 80; In rẻ Roberts, 24 Fed. Rep. 132; In re Robb, 19 Id. 26; In re Doo Woon, 18 Id. 898; Ex parte Morgan, 20 Id. 298; Matter of Titus, 8 Ben. 411; Leary's case, 10 Id. 197.

In re Bull, 4 Dill. 323. This case arose out of the kidnapping of Blair, supra, § 191, Bull being the agent.

4 Ex parte Clodomiro Cota, 110 U. S. 385; Ex parte Tom Tong, 108 Id. 556.

trict court, does not require it to be taken, as in ordinary cases at law or suits in equity or admiralty, to the next term of the circuit court. The subject is regulated by section 765, and the appeal may within the discretion of the court or judge be sent to the circuit court at a current term, under regulations and orders adapted to secure justice.1

§ 630. Jurisdiction of Federal Courts not exclusive. - In the matter of Titus,2 in 1876, Judge Benedict, in the United States district court, Eastern District of New York, expressed the view that the power to issue writs of habeas corpus in interstate rendition cases was exclusively vested in the Federal courts. This view was adopted by Judge Sawyer, in the United States circuit court, District of California, in the case of Robb,3 in January, 1884. The facts in the case are that W. L. Robb, agent of the State of Oregon, held in custody one Bayley, who had been delivered up to him on a warrant of rendition issued by the governor of California upon a requisition of the governor of Oregon. While so held, Bayley obtained from the judge of the superior court of the city and county of San Francisco a writ of habeas corpus, which Robb refused to obey on the ground that he held Bayley under the authority of the United States, and that the superior court consequently had no power or authority to proceed in the matter. The superior court thereupon declared Robb in contempt, and he was arrested. He then obtained a writ of habeas corpus from the supreme court of California, which held that the superior court had power to issue the writ and that the refusal to obey it was contempt of court. Meanwhile, Robb obtained a writ of habeas corpus from Judge Sawyer, and was discharged. In order, how

1 Roberts v. Reilly, 116 U. S. 80.

8 In re Robb, 19 Fed. Rep. 26.

4 In re Robb, 64 Cal. 431; 1 W. C. R. 255.

5 This decision is criticised in 29 Alb. L. J. 206.

28 Ben. 411.

The syllabus of Judge Sawyers's decision is as follows:

"FUGITIVES FROM JUSTICE ARRESTED AND RETURNED UNDER LAWS OF THE UNITED STATES. - The governor of a State in issuing a warrant for the arrest of a fugitive from justice, the officer who makes the arrest, and the party commissioned to receive the fugitive and deliver him to the authorities of the State