,apyevidence Thalonhad any power to make any such waiver. The correspondence shows ;that the bankrupts fully understood thaHheir short deliveries under the contract subjected them to a legM,obligation in ThE;ly desired to, be ,relieved from it, but they never obtainedany such release; nor do I find that the short a,fter for such a release, or waiver, were by them, or were l'eceived by Mr., 'rhalon, on any understanding that their liability for any shott deliveries would be waived, or that the dontract lfasin any respect to be varied. The verbal testimony to is insufficiehtj Itwas given eight years after the transaction; it was denied by Mr. Thalon, and finds no support in any writings. delivered for 10 weeks !vas only about one fifth of the amount agt'eed to be delivered, and was almost wholly fat. The complaiJ:ltshad'been numerous, aud no substantial improvement made in the bankrupts' deliveries. The creditor was justified in putting an end to further deliveries under such circumstances, and to claim damages for the breaches of contract up to that time. For there was never a sihgle by the bankrupts of their contract, and never any tender .of performance. It follows that the creditor, Jules Mason, is entitled to prove at the stipt;tlated rate of 1 cent per pound fOr 2,613,472 pounds, the deficiency during 10 weeks up to the' 29th of December, 1876, amounting to $26,134.72, to which amount; with interest from that date, the claim ehould be reduced, and for that amount allowed.
CARICO t1·. WILMORE,
(DiBtrict 001.lll't, W. D. Virginia. January 12, 1809.)
UNITED STATES MARSIj;ALS-POWER TO ARREST WITHOUT WARRANT-VIOLATION OY REVENUE LAWS.
Under Rev. St.$ to United States marshals and tbeir deputies the powers possessed by sheri1fs of the states, a deputy marshal in Virginia has power to arrest without awarrant a person who,in his presence, has in possession Whisky for the purpOse of selling, tbe same witllOut payment of the internal revenue tax, in violation of Rev. St. U. S. S3452.
.. SAlIE-EvIDENOE-REMoVAL OP CAUSBBo
A deputy United States marshal,having been informed that two men were sellWhisky in tbe neiib.borbood in violation of the revenue laws, met them a few mlDutes later in the htgbway carrying a keg. He asked what was in the keg, and and they A little whIsky." One of them said, "Who the hell are you 1" and he replied, "A aeputy marshal." The former then said that no deputy marshal shOUld arrest him, and drew his pistol, whereupon the aeputy shot and killed him. Held, that tb,edeputy was justified in presuming that, tbey had the whisky for the purpose of.selling the same in violation Of the revenue laws; and that whether it was his intentIon to arrest them, or to make further inquirics as to Whether they had beep. engaged iil violating tile revenue laws, he was acting within the scope of his authority; and, a prosdcution having been commenced against him in the state court for mUrder, he was entitled to have the same removed to the federal circuit
' . ;
At for a writ ()f Joseph H. Carico against W. D. Wiltn()re, jailer OfSlllyth county, Va.
", ;:,i . · ,. .., .
CARICO V. WILMORE.
Section 643 of the Revised Statutes of the United Stntes provides as follows: When any civil suit or criminal prosecution is commenced in "Sec. any court of a state against any officer appointed under or acting by authorr ityof any revenue law of the United States now or hereafter enacted. or against any person acting under or by authority of any such officer, on account of any act done under color of his office, or of any such law, or on,account of any right, title, or authority claimed by such officer or other person under any such law, * * * the said suit or prosecution may, at any time before the trial or final hearing thereof, be removed for trial into the circuit court next to be holden in the district where the same is pending, upon the petition of such defendant to said circuit court, and in the following manner: Said petition shall set forth the nature of the suit or prosecn;. tiOD, lj.nd be verified by affidavit; and, together with a certificate signed lIy an attomey or counselor at law of some court of record of the staLe such suit or prosecution is commenced, or of the United States, stating that, as counsel for the petitioner, he has examined the proceedings against' him. and carefully inquirrd into all the matters set forth in the petition, arid that he believe!! them to be true, shall be presented to the said circuit court, if ia session, or, if it be not, to the clerk thereof at his office, and shall be filed in said office. The cause shall thereupon be entered on the docket of the circuip court, and shall proceell as a cause originally commenced in that court,. * * * When the suit is commencrd in the state court by * * * capia$., or by any othersimilar form of proceedings by which a personal arrest is dered, he (the clerk of the circuit court) shall issue a writ of habeas C01PU8 cum causa, a duplicate of which shall be delivered to the clerk of the sLate court, or left at his office by the marshal of the district, or his deputy, or some person duly authorized thereto, and thereupon it shall be the duty of the state court .to stay all further proceedings in the cause, aud the suito/.' prosecution, upon delivery of such process, or leaving the same as aforesaid, shall be held to be removed to the circuit court. and any further proceedings', trial, or judgment therein in the state court shall be void ; and, if the defendant in the suit or prosecution be in actual cllstody on mesne process therein,it shall be tile duty of the marshal, by virtue of the writ of habeas C01pUS cum, Cau,Wl" to take the body of the defendantinto his custody, to be dealtwith cause according to the law and the order of circuit court, or, in vacatiOn, of , ' any judge thereof. * * *" On the 18th day of December, 1891, in the vacation of this court, Joseph H. Carico, the petitioner, presented his petition to thedistlrict judge, reciting that he had been arrested upon the 'warrant of a justice of the peace of the state of Virginia charging him with murder, and was in the custody of the jailer of Smyth county, Va., on said charge, and that there was no murder, but that the killing was committed in his own necessary self-defense, while engaged in the discharge of the duties of his office as deputy marshal in arresting a violator of the internal revenue laws of the United States, and praying that a writ of habeas corpU8 cum causa issue directed to W. D. Wilmore, the said jailer of Smyth county, Va. Upon said petition a writ of habeas corpus was granted as therein prayed, and served upon said W. D. Wilmore, jailer of Smyth county, Va., upon which writ the following return was made: "To the Hon. Judge Paul, JUdge of the Circuit Court of the United states T01' the Dil$trict of Virginia; W. D. Wilmore, keeper of the ,jail of
8mylJ!icotrnty;'Vfi'gfnili,'ifi wbom tM:witbiti writJ!I dir'ected;hlis now here before the court the body of Joseph H. Carico, therl'in named, as thereby and I ce.'tify that,the cause of the detention of the said Joseph 'Qafdco is a warrant' of me, It. copy of whichis '. 'Exhibit A,' anp. tl\e pXlIceeding of the county COlirt tile oiVa:; mljorkeLi 'Exhibit B,' and made part ai'ldl of this rl't'urn.' 'this 23a d,qyo/IJecember,lB91. , "", ' , ' lOW. D. WILMORE, Jailer Smyth Co., Va.'"
of the case continued: to the,8th day of January, 1892, when, on the hearing, thefoHowing facts were shown: That the petitioner was a deputy marshal; that on the 11th day of December. 189l:I,he was on his way from Inrlependence, Grayson county, Va., with States prisoner in his, custody, taking said prisoner to the jailotStn,yth county,ViI.. ; that on' hiE! way he .learned that some men were, ,liquor unlawfully in the neighborhood, and he was told that he would probably meet said men on the road; that from what he learned he ,supposed tbesemen to oe;the'two Nelsons; that after receiving this information he'had'not gone more than it mile when he met two men 'on ',the highway who proved to be the two Nelsons; that one of '\'\"lls"carrYing a keg, that he said to them, " It is reported to me that.yo,i are, selling, liquor, anel I want to see what you have got there in 'that keg, and who are you?" that the man with the keg answered, "A little whisky;" that the deceased said to petitioner, "Who the hell and thatpetitipner replied, "I am a deputy marshal;" that said, "No damned deputy marshal shall arrest me," and dreW,his pistol; that, at this point the petitioner, having his pistol inhishand,firedand killed the deceased. Upon this showing of the facts, counselforthe respondent contentied that the state court alone had jurisdiction of the case, and insisterl that petitioner should remain in the, custody of the jailer of Smyth county for trial in the state court. , F. S. Blair, fot petitioner. A. M. Dickenson, for respondent.
PAUL', District ,Judge., '!Officers who, by virtue of their offices, are conservators ofthepoo()6j' have, at common law, the right to arrest without warrant all persons who are guilty ofa breach of the peace, or other violation of criminal law, in their presence." 1 Amer. & Eng. Ene. Law, 734. Revised Statutes of the United States provide as follows: "Sec. 3452 7 Every person who shall have in his custody or possession any goods, wares. or objects on which taxes are imposed by law, for the purpose of selling the same in frand of the internal revenue laws, or with design to avoid the payment of the imposed thereon, shall I)e l,iable to s, Penalty of five hundred dollars. or not less than double the amount of,rtaxesfraudulentQto be evaded."
A violation of this statute would be a misdemeanor. Code Va. § 3879. If committed in the presence of a sheriff, the offender could be
aiTestedwithout it warrant. v·. eom.', 86 Va. 443 1 S. E. Rep. 534; and. Davis, Grim. Law,,402. It is clearly proved that James Nelson, the deceased, and, his brother, Reuben Nelson,who was with him at the time he was killed, had been engaged only a few hOllfsbef'Ofe in selling liquor unlawfully; that Reuben Nelson, when asked by the petitiomer what he had in the keg which he was carrying, replied that he had "a little whisky." These men having been engaged in selling whisky during the day, 10 or 15 miles from their home, and acknowledging that they had whisky in a keg at the time they were accosted by the deputy marshal, the fair pre-sumption is that they had said whisky" for the purpose of selling the sanie·infraud of thereveriuelawsi" thus bringing their offense within theprovisfuils of section 8452 of the Revised Statutes of the'iUnited States. It is further shown 'bY' the evidence that the pet.itioner had been . informed,but few minutes before he met the deceaSed fand his brother,' that unlawful sales of liquor had been made that day at a cornshucking in that immediate neighborhood, and on the roao. which the petitioner was traveling with his prisoner, and. that he would probably meet the men who were selling the liqnor; that when he met the two Nelsons he he l was correct) ,that they were the supposed (the evidence shows persons who bad been selling the liqu0runlawfully. So, seeing the keg which one of them carried,and being informed that itoontained whisky,! the petitioner was authorized toarrest'these.persons without warrant for a violation of the provisions of section 3452 of the Revised Statutes of the Unitt!d States. The court is of the opinion that the offense described' in that statute was being committed in the preseuce of the petitioner,! and, if he had arrested the men who were doing it, he would have been performing his duty and acting in the line of his authority; for section 788 of the Revised Statutes of the United States provides that "the marshals and their deputies shall have state the same powers, in executing the laws of the United States, as the sheriffs and their deputies in such state may have by law in executing the laws thereof." This statute invests the marshal and his deputies in this district with all the powers, wand statu,tory, which a sheriff and his deputies have in the state of Virginia; and, as we have already seen, a sheriff or his deputy in Virginia has power to arrest without warrant for an offense committed in his presence. In addition to the common-law powers of a sheriff in the state of Virginia, the Code·of Virginia (section 3988) makes it the duty of the sheriff to give 'inJotmation of the violation of any penal law to the attorney for the commonwealth, whose duty it is to institute a prosecution in such case. This duty imposed upon the sheriff necessarily carries with it the implied power to investigate, iuquireinto, and ascertain if an offense has been or is being committed, in ordel'that he may report the same to the proper prosecuting officer. The petitioner testifies that it was his purpose in stopping the Nelsons, and inquiring their names and what they had in the keg, to ascertain if they were violators of the lawj and that, if they were, he might take the proper steps to'have them
prosecuted. 'In view of the duty imposed upon a sheriff. by the Code of Virginia, and the necessary and incidental power conferred by the im,positiori, of that duty, and the. marshal, by section 788 of Revised Statutesofthe United States, having the same power, the petitioner had a right, when he suspected the Nelsons of violating the revenue .laws of the United States, to make of them, or other persons, all properinquiries as to such violations of law; and being a conservator of the peace, like a Sheriff; it was his duty to do so, and in doing eo he was Acting in the line of his duty. So' the court is of the opinion that, under the facts presented in this case, whether it was the purpose of the petitioner to artestthe deceased and his brother, or to make inquiries of them with a view of ascertaining whether they were or had been engaged in violating the intern81 revenue laws, he was acting within the scope of his authoritYi and that the circuit court of the United States has jurisdiction of the prosecutibn institntedagainst him in the state court, and that the petitioner has a right t()have the same removed into the circuit court for trial. Counsel for the petitioner claims that, under the evidence, he is .entitled to an absolute discharge. The court does not care at this time to enter into a discussion of the facts as shown by the evidence on which this demand is based. For the present it contents itself with saying that it deems it its duty not to. discharge the petitioner. He will be allowed bail in the sum of $1 ,000 to appeAr before the United States circuit court at regular term at Abingdon.
WILMORE, County Jailer.
D. Virginia. May 14, 1892.)
L ApPEALABLE ORDERS-iIAUE.6.8 CORPUS. A distriot in vaoation, allowed a wrIt of habeas C0TP'U8 for the person of a deputy marshal in custody under state process, and, after hearing, entered an order finding that the petitioner was in oustody for an act done in pursuance of a law of the United States, that he had a right to have the prosecution against him ·moved to the federal circuit oourt, and therefore held him to bail for his appearance before that court. Held, that this a final order, from which an appeal would lie to the United States supreme oourt 2. SAME. , The writ of habeas corpUB. allowed by the. district court was not the writ provided for in Rev. St. § 6t3, in 'cases of removal of a prosecution against a revenue officer from a state to a federal court, which writ is issued by the clerk of the circuit C()urt after the filinll: of the petition for removal, and therefore was not merely ancillary to a petition for removal which was filed in the circuit court the day after the writ was allowed.
Petition for Leave to Amend an order made after hearing on habeas corpus, so as to allow an appeal :tberefrom to the supreme court. Granted. On.the18th day of December, 1891, petitioner presented his petition to the judge of the district court, in vacation of the court, alleging that be was unlawfully detained in custody by the respondent on an alleged