Argument for Appellant.

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subject to its jurisdiction, was void as an unlawful interference with the jurisdiction of such Circuit Court, and a violation of the appellant's constitutional rights.

In criminal cases priority of jurisdiction is determined by the date of service of process. United States v. Lee, 84 Fed. Rep. 631; Craig v. Hoge, 28 S. E. Rep. (Va.) 317; Union Mutual Life Ins. Co. v. University of Chicago, 6 Fed. Rep. 443; Owens v. Railroad Co., 20 Fed. Rep. 10; Wilmer v. Railroad Co., 30 Fed. Cases, 73; Herndon v. Ridgway, 17 How. 424; Chaffee v. Hayward, 20 How. 208, 215; Boswell's Sons v. Otis, 9 How. 336, 348; Pennoyer v. Neff, 95 U. S. 714; Mexican Central Ry. v. Pinkney, 149 U. S. 194, 209.

The fact that Beavers had given bail on the first arrest and was not in actual custody of the marshal when the second arrest took place is immaterial. In re Beavers, 125 Fed. Rep. 988. By admission to bail the appellant had not been relieved from custody.

When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. See Bail, Bacon's Abridg.; Taylor v. Taintor, 16 Wall. 371; Anon's Case, 6 Mod. 231; Cosgrove v. Winney, 174 U. S. 68; In re Grice, 79 Fed. Rep. 633; United States v. Stevens, 16 Fed. Rep. 105; Turner v. Wilson, 49 Indiana, 581; Divine v. State, 5 Sneed. 625; Levy v. Arnsthall, 10 Grat. (Va.) 641; Ex parte Gibbons, 1 Atk. 238; Spear on Extradition, 445; Petersdorf on Bail, 91, 406.

Wherever a conflict of jurisdiction has arisen between a state and Federal court, the court whose jurisdiction has first attached to the person or thing, has universally held and retained it until its completion. No other court has been permitted by its process to interfere with the jurisdiction of the court which has first attached. Byers v. McAuley, 149 U. S. 608, 614; Hagan v. Lucas, 10 Peters, 400; Taylor v. Carryl, 20 How. 583; Peck v. Jenness, 7 How. 612, 625; Freeman v. Howe, 24 How. 450; Ellis v. Davis, 109 U. S. 485, 498; Krippendorf v. Hyde, 110 U. S. 276, 280; Covell v. Heyman, 111

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Argument for Appellant.

U. S. 176; Borer v. Chapman, 119 U. S. 587, 600; In re Chambers, Calder & Co., 98 Fed. Rep. 866; Jordan v. Taylor, 98 Fed. Rep. 643; Keegan v. King, 96 Fed. Rep. 758; Chapin v. James, 11 R. I. 87; The E. L. Cain, 45 Fed. Rep. 367; Moran v. Sturges, 154 U. S. 256, 269, 279; Ex parte Chetwood, 165 U. S. 443, 460; Pac. Coast S. S. Co. v. Bancroft Whitney Co., 94 Fed. Rep. 186; Yonley v. Lavender, 21 Wall. 276; Sharon v. Terry, 36 Fed. Rep. 337; aff'd 131 U. S. 40.

The same principle is universally applicable where Federal and state courts each claim jurisdiction over the same person at the same time. Abelman v. Booth, 21 How. 506; Tarble's Case, 13 Wall. 397; Robb v. Connolly, 111 U. S. 624; In re Spangler, 11 Michigan, 298; In re James, 18 Fed. Rep. 853.

In fact even where a State has sought the rendition of a fugitive from another State, if he is held in custody in the State upon which the demand is made on account of an offense committed therein, the duty to surrender is postponed until the existing charge against the prisoner has been satisfied. Am. & Eng. Ency. of Law, vol 12, p. 604; Matter of Troutman, 24 N. J. Law, 634; Matter of Briscoe, 51 How. Pr. 422; Hobbs v. State, 22 S. W. Rep. (Tex.) 1035; Taintor v. Taylor, 36 Connecticut, 242; Taylor v. Taintor, 16 Wall. 366; Ex parte Rosenblat, 51 California, 285; Clark Cr. Proc., 63; Spear on Extradition, 442.

The rule is the same where Federal courts of different districts have asserted jurisdiction at the same time over the same personal property. Re Miller, 30 Fed. Rep. 895; Ames v. Ry. Co., 60 Fed. Rep. 967, 974; Clyde v. Richmond & D. R. Co., 65 Fed. Rep. 336; Chattanooga Terminal Ry. Co. v. Felton, 69 Fed. Rep. 273, 283; N. Y. Security & Trust Co. v. Equitable Mtge. Co., 71 Fed. Rep. 556; Wiswall v. Sampson, 14 How. 60.

This principle is not restricted in its application to questions of jurisdiction between courts of different sovereignties, but is applicable wherever two courts subject to the same general sovereignty and existing under the same judicial system seek VOL. CXCVIII-6

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to exercise criminal jurisdiction over the same person for antagonistic purposes at the same time. In re Johnson, 167 U. S. 125; In re Beavers, 125 Fed. Rep. 988; In re Beavers, 131 Fed. Rep. 366.

A United States Commissioner is a subordinate ministerial officer, an arm or branch of the District Court, and is himself neither court nor judge. United States v. Allred, 155 U. S. 595; Todd v. United States, 158 U. S. 278; Rice v. Ames, 180 U. S. 371, 378; United States v. Schumann, 2 Abb. U. S. 523; United States v. Jones, 134 U. S. 483; Re Ellerbe, 13 Fed. Rep. 530; In re Perkins, 100 Fed. Rep. 950; Ex parte Dole, 7 Phila. 595. Even conceding the right of the commissioner to issue process against the appellant, the process could not be lawfully executed by the marshal so long as he was in the custody of a court of superior jurisdiction. In re Beavers, 125 Fed. Rep. 988; Hobbs v. The State, 22 S. W. Rep. 1035; Matter of Troutman, 24 N. J. Law, 634; Higgins v. Dewey, 39 N. Y. 94.

Whether or not the Circuit Court might have waived or relinquished its jurisdiction is immaterial. This was never done. The appellant's recognizance was not cancelled. If the arrest of the appellant herein under a commissioner's warrant was void, no subsequent willingness of the Circuit Court to waive its jurisdiction could give the arrest validity.

The refusal of the District Attorney to proceed with the prosecution and the failure of the court below to discharge Beavers from the arrest complained of deprived him of his constitutional right to a speedy trial by jury in the Eastern District of New York. United States v. Fox, 3 Montana, 312; note to In re Bergeron, 85 Am. St. Rep. 178, 204; Sutherland's notes on the U. S. Const.; Nixon v. State, 41 Am. Dec. 601; Cooley Const. Lim., 7th ed., 440.

The positive evidence adduced by the appellant before the commissioner was such as wholly to deprive the indictment of its prima facie probative force, and the decision of the commissioner was in effect a determination that the indictment was conclusive evidence.

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Argument for the United States.

See § 196, N. Y. Code Civ. Pro., which is here applicable under the rule that proceedings under § 1014 are in all respects similar to criminal proceedings instituted before a committing magistrate in the State where the arrest is made, and are controlled and governed by the rules of evidence and procedure in such State. Re Dana, 68 Fed. Rep. 886, 893; United States v. Rundlett, 2 Curt. 42; United States v. Case, 8 Blatch. 251; United States v. Horton, 2 Dill. 94; United States v. Brawner, 7 Fed. Rep. 86, 90; United States v. Martin, 17 Fed. Rep. 150, 156; Re Burkhardt, 33 Fed. Rep. 25; United States v. Green, 100 Fed. Rep. 941.

The indictment is not conclusive evidence of the facts therein stated. United States v. Green, 100 Fed. Rep. 941; S. C., 108 Fed. Rep. 816; Green v. Henkel, 183 U. S. 241; In re Richter, 100 Fed. Rep. 295; In re Belknap, 96 Fed. Rep. 614; In re Wood, 95 Fed. Rep. 288; United States v. Price, 84 Fed. Rep. 636; In re Price, 83 Fed. Rep. 830; aff'd 89 Fed. Rep. 84; In re Dana, 68 Fed. Rep. 886; United States v. Fowkes, 49 Fed. Rep. 50; In re Wolf, 27 Fed. Rep. 606; Alexander's Case, 1 Lowell, 530; United States v. Haskins, 3 Sawy. 262; United States v. Pope, 24 Inter. Rec. 29. In Beavers v. Henkel, 194 U. S. 73, this point was not considered.

Mr. Assistant Attorney General Purdy for the United States: The fact that an indictment is pending against George W. Beavers in the United States Circuit Court for the Eastern District of New York in no manner affects the power or the right of the United States Government to institute and maintain proceedings against said Beavers, under § 1014, Rev. Stat., for the purpose of securing his appearance for trial before the Supreme Court of the District of Columbia. Taylor v. Taintor, 16 Wall. 271, is not in point.

Whether a removal proceeding from Brooklyn to Washington would operate to discharge the sureties upon the bond of Beavers for his appearance at Brooklyn for trial is a question which need not here be considered.

Every sovereignty has the power to waive its right to try a person accused of having committed an offense against its laws, and may elect to surrender such accused person, without his consent, to a demanding State. Taylor v. Taintor, 16 Wall. 366; In re Hess, 5 Kan. App. 763; State v. Allen, 2 Humph. (Tenn.) 258.

The evidence produced upon the hearing, in behalf of the defendant, was totally insufficient to overthrow the prima facie case established by the Government.

MR. JUSTICE MCKENNA, after stating the facts as above, delivered the opinion of the court.

It will be observed that indictments were found against appellant in the Eastern District of New York. He was then living in the city of New York, which is in the Southern District. He was removed from the latter by removal proceedings to the former for trial, and, having been called upon to plead to the indictments, he made certain motions in respect thereto. The District Attorney, however, announced an intention not to proceed further with the prosecution, and announced further that he intended to prosecute proceedings to remove appellant to the District of Columbia for trial. This was done, and with the consent of the court. It is stated in Judge Thomas's opinion that the Circuit Court “deferred the hearing of the motions pending the hearing before the commissioner, for the purpose of allowing the warrant to be served upon the defendant (petitioner), and to permit the proceedings to continue before the commissioner."

The appellant contends, nevertheless, that the commissioner had no power to issue warrants, and relies on two propositions:

(1) The proceedings were void because they were an unlawful interference with the jurisdiction of the Circuit Court for the Eastern District of New York, in the custody of which he was.