But in In re Durrant, (1898) 84 Fed. 317, the court, commenting on the Sun Hung case, above cited, said: "That, however, was a case clearly involving questions arising under the Constitution and treaties of the United States, and in which the good faith of the proceedings was not doubted, and the proceeding itself not one in any way obstructing the execution of the criminal laws of the state. In such a case it is clear that the denial of an order allowing the appeal would be a gross abuse of discretion, and the question of the power of the court to refuse an appeal, in a case where it was clearly apparent that the process of appeal was being used solely for the purpose of obstructing the execution of the judgment of a state court, the validity of which had already been sustained by the Supreme Court of the United States, was not presented to or in the mind of the judge delivering that opinion," and in commenting on the Jugiro case, supra, the court further said: "Notwithstanding our respect for the learning and ability of the judge delivering the opinion in that case, we are not able to agree with the conclusion thus reached by him. When it manifestly appears to the court that the application for the writ is entirely destitute of merit, and that the effect of allowing an appeal from its final judgment in the proceeding will only result in obstructing the execution of the laws of the state, then the court may properly refuse to enter an order giving its consent to such appeal."

An appeal directly to the United States Supreme Court from a decision of the Circuit Court denying the writ of habeas corpus was held to be proper under averments contained in the petition, that the imprisonment of the appellant was in violation of the Federal Constitution. Dimmick t. Tompkins, (1904) 194 U. S. 540, 24 S. Ct. 780, 48 U. S. (L. ed.) 1110. Scope of review. In this section the term " appeal," and not "writ of error," is used as the mode of review, and as Congress has always used these words with a clear understanding of what is meant by them, namely, that by a writ of error only questions of law are brought up for review, as in actions at common law, while by appeal, except when specially provided otherwise, the entire case on both law and facts is to be reconsidered, an appeal requires the appellate court to examine into the evidence brought to sustain or defeat the right of the petitioner to his discharge. In re Neagle, (1890) 135 U. S. 1, 10 S. Ct. 658, 34 U. S. (L. ed.) 55.

The general rule that a writ of habeas corpus cannot be used to perform the office of a writ of error applies not only to original writs issued by the Supreme Court, but on appeals to it from courts below in habeas corpus proceedings. Gonzales r. Cunningham, (1896) 164 U. S. 612, 17

S. Ct. 182, 41 U. S. (L. ed.) 572. See Horner v. U. S., (1892) 143 U. S. 570, 12 S. Ct. 522, 36 U. S. (L. ed.) 266; In re Schneider, (1893) 148 U. S. 157, 13 S. Ct. 572, 37 U. S. (L. ed.) 404; In re Lennon, (1893) 150 U. S. 393, 14 S. Ct. 123, 37 U. S. (L. ed.) 1120.

"We are not sitting in this court on the trial of the prisoner, with power to pronounce him guilty and punish him or declare him innocent and acquit him. We are now engaged simply in an inquiry as to whether, under the construction of the Act of Congress and the treaty entered into between this country and Mexico, there was legal evidence before the commissioner to justify him in exercising his power to commit the person accused to custody to await the requisition of the Mexican government." Benson v. McMahon, (1888) 127 U. S. 457, S. S. Ct. 1240, 32 U. S. (L. ed.) 234.

"The proposition is fundamental, and is necessary to prevent an appellate court from exercising virtually original jurisdiction, that the court below must have had an opportunity to pass on the questions raised on appeal, and that whether it had such opportunity must appear by the record or be fairly inferable from what does appear in it." King v. McLean Asylum, (C. C. A. 1894) 64 Fed. 331, 21 U. S. App. 481, 12 C. C. A. 145, 26 L. R. A. 784.

The Supreme Court will affirm the decision of a District Court remanding the petitioner to custody, where it is made to appear to the Supreme Court that an objection to the custody existed at the time when the writ issued, though it did not so appear when the order of the District Court remanding the petitioner was entered. Iasigi v. Van de Carr, (1897) 166 U. S. 391, 17 S. Ct. 595, 41 U. S. (L. ed.) 1045.

An order at chambers by a circuit judge is not appealable. Lambert v. Barrett, (1895) 157 U. S. 697, 15 S. Ct. 722, 39 U. S. (L. ed.) 865. See also Ex p. Jacobi, (1900) 104 Fed. 681.

This section gives an appeal to the Supreme Court in habeas corpus cases only from the final decision of a Circuit Court, and an appeal does not lie to the Supreme Court from an order discharging a prisoner made by a circuit judge sitting as judge, and not as a court; and the order of the judge that the paper be filed, and his order recorded in the Circuit Court, does not make his decision as judge a decision of the court. Carper v. Fitzgerald, (1887) 121 U. S. 87, 7 S. Ct. 825, 30 U. S. (L. ed.) 882; McKnight v. James, (1895) 155 U. S. 685, 15 S. Ct. 248, 39 U. S. (L. ed.) 310; Whitten v. Tomlinson, (1895) 160 U. S. 231, 16 S. Ct. 297, 40 U. S. (L. ed.) 406. See also In re Palliser, (1890) 136 U. S. 257, 10 S. Ct. 1034, 34 U. S. (L. ed.) 514. See supra,

this note, "Effect the Act of March 3, 1891."

But when the record discloses that, while the original order was made at chambers, the final order was the decision of the Circuit Court at a stated term, the appeal will lie. Harkrader . Wadley, (1898) 172 U. S. 148, 19 S. Ct. 119, 43 U. S. (L. ed.) 399.

Appeals from District of Columbia.Under the Revised Statutes of the District of Columbia, final judgments of the Supreme Court of the District may be taken to the Supreme Court of the United States as in the case of final judgments of the Circuit Courts of the United States. This local legislation cannot be construed as extending the appellate jurisdiction so as to include all subsequent legislation touch. ing appeals from Circuit Courts, so that the Act of 1885, amending this section, does not extend the appellate jurisdiction on judgments of the District of Columbia in cases described in the first clause of section 763, supra. The Act of March 3, 1885 (23 Stat. L. 443, ch. 355), regulating appeals from the Supreme Court of the District of Columbia and the several territories, does not apply to appeals in habeas corpus cases from the District of Columbia, as, a proceeding in habeas corpus being a civil and not a criminal proceeding, the Act prescribes that the matter in dispute must be money, or some right the value of which can be calculated and ascertained, and the matter in dispute in a habeas corpus case has no money value. Cross v. Burke, (1892) 146 U. S. 82, 13 S. Ct. 22, 36 U. S. (L. ed.) 896, in which case the court said that in the case of Wales v. Whitney, (1885) 114 U. S. 564, 5 S. Ct. 1050, 29 U. S. (L. ed.) 277, holding that the judgments of the Supreme Court of the District of Columbia on habeas corpus are subject to review, the question of jurisdiction did not appear to have been contested, and the court did not consider itself bound by the view expressed. See In re Heath, (1892) 144 U.

S. 92, 12 S. Ct. 615, 36 U. S. (L. ed.) 358; In re Belt, (1895) 159 U. S. 95, 15 S. Ct. 987, 40 U. S. (L. ed.) 88.

"By Act of Congress of March 3, 1885, 23 Stat. L. 437, ch. 353, section 764 of the Revised Statutes was so amended as to remove the restriction to the second clause of section 763, and restore the appellate jurisdiction of this court from decisions of the Circuit Courts in habeas corpus cases as it had existed prior to the passage of the Act of March 27, 1868, 15 Stat. L. 44, ch. 34. But this did not have that effect as to judgments of the Supreme Court of the District of Columbia in those cases for the reasons given in In re Heath, (1892) 144 U. S. 92 [12 S. Ct. 615, 36 U. S. (L. ed.) 358]; Cross v. Burke, (1892) 146 U. S. 82 [13 S. Ct. 22, 36 U. S. (L. ed.) 876]." Gonzales v. Cunningham, (1896) 164 U. S. 612, 17 S. Ct. 182, 41 U. S. (L. ed.) 572.

Appeals from territorial supreme courts.

The final judgments of territorial Supreme Courts may, under R. S. see. 702 (now section 245 of the Judicial Code, title JUDICIARY), and R. S. sec. 1909 (title TERRITORIES), be reviewed by writ of error and appeal under the same regulations as those of the Circuit Court of the United States, and this applies to final orders on habeas corpus. The effect of the Act of March 3, 1885, ch. 355, 23 Stat. L. 443, would have been the same as to such judgments of the Supreme Court of the District of Columbia (see supra, this note, under "Appeals from District of Columbia "), but under R. S. sec. 1909 appeals would lie from the decisions of the territorial Supreme Courts on habeas corpus, when they would not lie from Circuit Courts or courts of the District of Columbia in like cases, and the Act of 1885, ch. 355, was not intended to do away with this special provision. Gonzales . Cunningham, (1896) 164 U. S. 612, 17 S. Ct. 182, 41 U. S. (L. ed.) 572. But see In re Borrego, (1896) 8 N. M. 655, 46 Pac. 211.

Scope. The provisions of this section are in force in habeas corpus cases, except as to the right and mode of appeal which

are regulated by the Circuit Court of Appeals Act of March 3, 1891, ch. 517. In re Iasigi, (1897) 79 Fed. 755, citing In re

'of the United States, the federal courts

could take cognizance. McKane v. Durston, (1894) 153 U. S. 684, 14 S. Ct. 913, 38 U. S. (L. ed.) 867.

Merit of appeal as material element.It is the appeal and not the merit of the appeal which operates as a stay on the proceedings in the state court. Ex P. Edgar, (1897) 119 Cal. 123, 51 Pac. 29. Necessity of order staying proceedings. -No order staying proceedings under state authority is made a condition to such stay, and the bare pendency of the appeal effects a stay. Lambert v. Barrett, (1895) 159 U. S. 660, 16 S. Ct. 135, 40 U. S. (L. ed.) 296.

Proceeding against person so imprisoned." A reprieve by the governor of a state, postponing, until a fixed date, the execution of a death sentence, evidently granted to permit the prisoner to appeal to the federal Supreme Court from the order of a District Court denying habeas corpus, is not a proceeding "against the person so imprisoned," etc., within the meaning of this section. Rogers v. Peck, (1905) 199 U. S. 425, 26 S. Ct. 87, 50 U. S. (L. ed.) 256.

The action of a trial judge of a state court, on appeal being taken by a convicted defendant, in considering a statement of facts presented by the defendant, and settling the case on appeal, notwithstanding the pendency of a petition for a writ of habeas corpus in a federal court, is not a proceeding "against "the defendant in the sense of this statute. State v. Humason, (1892) 4 Wash. 413, 30 Pac. 718.

"In process of being heard and determined." When the Supreme Court affirms, with costs, the judgment of the Circuit Court denying an application for a writ of habeas corpus, it is a final judgment in the premises, and nothing remains that is "in process of being heard and determined;" and the state court has power to proceed, though it would be more appropriate and orderly for the state court to defer final action until the mandate is issued and filed in the Circuit Court.

In re Shibuya Jugiro, (1891) 140 U. S. 291, 11 S. Ct. 770, 35 U. S. (L. ed.) 510. See also McKane v. Durston, (1894) 153 U. S. 684, 14 S. Ct. 913, 38 U. S. (L. ed.) 867; In re Boardman, (1898) 169 U. S. 39, 18 S. Ct. 291, 42 U. S. (L. ed.) 653; In re Fitton, (1893) 55 Fed. 271; People v. Durrant, (1897) 119 Cal. 54, 50 Pac. 1070.

Acquittal pending habeas corpus.Where, after the issuance of a writ of habeas corpus out of a federal court to review petitioner's arrest for violation of a state statute, he was tried and acquitted in the state court, such trial and acquittal were null and void, and therefore constituted no ground for dismissal of the writ. Ex p. Martin, (1910) 180 Fed. 209.

An order of a state court directing the execution of a petitioner on habeas corpus while an appeal on the habeas corpus is pending in the Supreme Court of the United States is absolutely void, and a federal District Court may issue its writ of habeas corpus for the purpose of bringing the petitioner into the custody of the court, so that the court might fully protect him against the execution of such illegal order. In re Ebanks, (1897) 84 Fed. 311, affirmed (1897) 168 U. S. 707, 18 S. Ct. 942, 42 U. S. (L. ed.) 1214.

Sentence to hard labor.-Application for a writ of habeas corpus will be denied where it appears that, while an appeal of the petitioner to the Supreme Court of the United States on a prior proceeding on habeas corpus is pending, he is required by the terms of his sentence, which is under review in such appeal, and by the provisions of the state law regulating state prisons, to do hard labor when confined therein. A rule adopted under section 765, supra, providing that the custody in which the prisoner was when he applied for the writ shall remain undisturbed despite the pendency of his appeal, is not inconsistent with this section. In re McKane, (1894) 61 Fed. 205, affirmed (1894) 153 U. S. 684, 14 S. Ct. 913, 38 U. S. (L. ed.) 867.