Barth v. Clise, Sheriff
| Decision Date | 01 December 1870 |
| Citation | 20 L.Ed. 393,12 Wall. 400,79 U.S. 400 |
| Parties | BARTH v. CLISE, SHERIFF |
| Court | U.S. Supreme Court |
ERROR to the Circuit Court for the District of Wisconsin.
Mr. G. W. Lakin, for the plaintiff in error; Mr. M. H. Carpenter and M. M. Cothren, contra.
Mr. Justice SWAYNE stated the case and delivered the opinion of the court.
The plaintiff in error sued Edward Brinkman, as survivor of his late partner, Smid, in the Circuit Court of Grant County, to recover a large sum of money alleged to be due from Brinkman, as such survivor, to the plaintiffs. After the institution of the suit the plaintiffs applied to the county judge of Grant County for a writ of ne exeat against Brinkman. The writ was accordingly issued and placed in the hands of Clise, the defendant in this action, as the sheriff of that county for execution. Pursuant to the writ, Clise arrested Brinkman, who, failing to give bail as required, was held in custody. A writ of habeas corpus was issued by the Honorable John T. Mills, the circuit judge of that circuit, directed to the sheriff of Grant County, whereby he was commanded to have before the judge, at Dodgeville, on the day therein specified, the body of Brinkman, with the cause of his imprisonment. Clise complied with this order. While the argument upon the writ of habeas corpus was in progress, Clise put Brinkman in the charge of Judge Dunn, one of his counsel, and absented himself. Before the argument was concluded, Brinkman fled to Canada and has not returned. The judge refused to take any further action in the case in the absence of Brinkman, and thus the proceeding terminated.
This action was brought by the plaintiffs in error against Clise for the escape of Brinkman. The cause was put at issue by the pleadings of the parties and was tried by a jury. A verdict was found and judgment rendered for the defendant Clise. The plaintiffs thereupon sued out this writ of error. It appears by the bill of exceptions found in the record that in two instances upon the trial evidence objected to by the plaintiffs was admitted and exceptions duly taken. The plaintiffs also excepted to the several instructions given by the court to the jury. It is insisted that each of these exceptions involves an error which is fatal to the judgment.
In the view which we have found ourselves constrained to take of the case it is unnecessary to consider either of them.
The bill of exceptions purports to contain all the testimony. The facts that the habeas corpus was issued and that the sheriff obeyed it by making the proper return and taking Brinkman before the judge who issued it, are fully proved. The testimony is uncontradicted. There is no controversy between the parties upon the subject.
By the common law, upon the return of a writ of habeas corpus and the production of the body of the party suing it out, the authority under which the original commitment took place is superseded. After that time, and until the case is finally disposed of, the safe-keeping of the prisoner is entirely under the control and direction of the court to which the return is made. The prisoner is detained, not under the original commitment, but under the authority of the writ of habeas corpus. Pending the hearing he may be bailed de die in diem, or be remanded to the jail whence he came, or be committed to any other suitable place of confinement under the control of the court. He may be brought before the court from time to time by its order until it is determined whether he shall be discharged or absolutely remanded.1 We have not overlooked the statute of 31 Car. II. This doctrine has been recognized by this court.2
The statute of Wisconsin upon the subject is in accordance with the common law. It provides:
'Until judgment be given upon...
To continue reading
Request your trial
-
United States ex rel. Carapa v. Curran
... ... whether it is proper to discharge or remand him absolutely ... See, ... also, Barth v. Clise, 12 Wall. 400, 402, 20 L.Ed ... 393; Stallings v. Splain, 253 U.S. 339, 342, 40 ... ...
-
U.S. v. Bailey
...a Prima facie case. Appellants claim to find authority for their position in the early Supreme Court opinion in Barth v. Clise, 79 U.S. (12 Wall.) 400, 20 L.Ed. 393 (1870). That case was a suit against a sheriff to recover a debt owed to the plaintiff by a prisoner who had escaped while the......
-
State v. Feng, 77-274-M
...1575, 36 L.Ed.2d 294, 300-01 (1973); United States ex rel. Carapa v. Curran, 297 F. 946, 954 (2d Cir. 1924); Barth v. Clise, 79 U.S. 400, 12 Wall. 400, 20 L.Ed. 393 (1871). In light of those authorities, we conclude that our authority to issue prerogative writs under R.I.Const., amend. XII,......
-
Artukovic v. Boyle
...writ of habeas corpus to enlarge a petitioner on bail pending the determination of the merits of the writ, Barth v. Clise, 1871, 12 Wall. 400, 402, 79 U.S. 400, 401, 402, 20 L.Ed. 393; Wright v. Henkel, 1903, 190 U.S. 40, 23 S.Ct. 781, 47 L.Ed. 948; In re Mitchell, D.C.1909, 171 F. 289; Fer......