In re Bull.

cannot give judgment for any more than the actual damage sustained.

After the ticket is purchased and paid for, the railroad company can only avoid compliance with its part of the contract by the existence of some legal cause or condition which will excuse it. The company should, in the first case, refuse to sell tickets to persons whom it desires and has the right to exclude from the cars, and should exclude them if they attempt to enter the car without tickets. If the ticket has been inadvertently sold to such person and the company desires to rescind the contract for transportation, it should tender the return of the money paid for the ticket. If it does not do this, plaintiff may, under any circumstances, recover the amount of his actual damage, viz.: what he paid for the ticket, and, perhaps, necessary expenses of his detention.

In this case the jury rendered a verdict for actual damages ($1.74) and costs, the company not having tendered the money. JUDGMENT ON VERDICT.

In re JESSE H. BULL and WILLIAM TURTLE. SAMUEL MCCLAY, Sheriff, respondent.

1. A person indicted in a state court for an act done in pursuance of a law of the United States, may be discharged from custody under such indictment, on a writ of habeas corpus issued by a federal court or judge, under section 753 of the Revised Statutes of the United States. 2. The relators were indicted in a state court for kidnapping, and were in custody under such indictment; they applied to a federal judge for a writ of habeas corpus, stating, in their petition for the writ, that they were indicted for acts done by them under sections 5278 and 5279 of the Revised Statutes of the United States, in executing a requisition for the surrender of the person alleged to have been kidnapped as a fugitive from justice; it appearing to the circuit court, on appeal, that this claim of the relators was not true: Held, that they were not entitled to be discharged, and the order of the district judge of the district, discharging the relators, was reversed.

In re Bull.

(Before DILLON, Circuit Judge.)

Habeas Corpus.- Revised Statutes, Secs. 753, 5278, 5279, Construed.-Power of Federal Court to Release on Habeas Corpus Persons in Custody under State Authority.

APPEAL IN habeas corpus. One John H. Blair was indicted in Chicago, in Cook county, Illinois, for perjury. The governor of Illinois issued his requisition, in due form, upon the governor of Nebraska, demanding the surrender and return of Blair to the state of Illinois. Mr. Bull, one of the relators, was appointed messenger, or agent, by the governor of Illinois, to receive and convey Blair to Cook county. The governor of Nebraska complied with the requisition, and caused the arrest of Blair in Lancaster county, Nebraska, and delivered him to Mr. Bull. Mr. Turtle, the other relator, was the assistant of Bull. Instead of taking Blair to Chicago by the nearest route, Bull and Turtle took him to St. Louis, and from thence one of them took him to New York, and thence to England, where he was arrested as soon as the ship on which he sailed had landed, and he was there confined in prison some months, until he was demanded by the government of the United States, and released by the government of Great Britain. This demand and release were upon the ground that Blair had been abducted from the United States. On Blair's return to this country he proceeded to Nebraska, and the criminal proceeding in Illinois has never been prosecuted.

After Blair's return, the grand jury of the state district court of Lancaster county, Nebraska, found an indictment against Bull and Turtle for kidnapping Blair, and forcibly and illegally taking him out of the state of Nebraska. They were arrested by the respondent, the sheriff of Lancaster county, upon a capias issued by the Lancaster district court upon this indictment, and were held in custody under that writ.

They, thereupon, presented their petition for a writ of habeas corpus to the Hon. E. S. DUNDY, the district judge of the United States for Nebraska, properly verified, setting forth, in substance, that they were restrained of their liberty and unlaw

In re Bull.

fully imprisoned by Samuel McClay, sheriff of Lancaster county, the respondent; that they were so restrained and imprisoned solely for acts lawfully done by them under and by virtue of the constitution and laws of the United States; that the state of Nebraska was proceeding to try and seeking to convict and punish them for said acts in violation of the constitution of the United States, and the laws made in pursuance thereof; that the respondent claimed the right to hold the said relators by virtue of a capias issued by authority of law from the state district court of Lancaster county; that the capias was based upon an indictment found by the grand jury of said county, in May, 1876, against the relators, for kidnapping one John H. Blair, on or about the 6th day of November, 1875; that the laws of the United States specially and specifically authorized the relators to do the acts complained of, and for which they were indicted; that the said Blair had been indicted in Cook county, state of Illinois, for the crime of perjury there committed, and had fled to the state of Nebraska, when and where he was duly arrested as a fugitive from justice; that the governor of the state of Illinois issued his requisition in due form upon the governor of Nebraska, demanding the surrender and return of the said Blair to the state of Illinois; that Jesse H. Bull was duly appointed messenger to receive and convey to said state the said Blair; that the governor of the state of Nebraska duly honored the said requisition, and caused the arrest of said Blair, who was properly and lawfully delivered to the said messenger; that the said Turtle was present assisting said Bull, at his request; and that the several things here enumerated are the identical acts for which they were indicted, and are now held in custody.

The writ was issued, and the respondent made return to the writ and produced the relators, as he was commanded to do. The return to the writ shows clearly enough that the respondent then held the relators on a capias duly issued from the district court of Lancaster county, as stated in the petition. When the writ was returned, the relators filed a replication to the return, reiterating the substance of the petition. Counsel for the respective

In re Bull.

parties being present, the hearing was at once entered upon. Proceedings were had "in a summary way to determine the facts of the case, by hearing the testimony and arguments," for the purpose of disposing of the relators, "as law and justice require,” as provided by section 761 of the Revised Statutes of the United States.

After hearing all the testimony, the district judge entered an order discharging the relators from the custody of the respondent. The facts of the case, the law pertaining to it, the positions taken by the respective counsel, and the conclusions of the district judge, were stated with great clearness in an opinion which accompanies the record on this appeal.

The district judge summed up his conclusions as follows: "These views lead me to conclude

"1. That Blair was properly indicted in Cook county, state of Illinois, for the crime of perjury.

"2. That the requisition and warrant issued by Governor Beveridge, of Illinois, under which Bull acted as messenger, were regular in form, and, therefore, valid and binding on all concerned.

"3. That the warrant issued by Governor Garber, of Nebraska, on which Blair was arrested and removed from this state, was regular on its face, and was a valid and lawful one.

"4. That all of these proceedings were had under and in pursuance of the constitution of the United States, and the act of congress passed in pursuance thereof, known as the 'extradition act.'

"5. That any effort or attempt on the part of the state authorities to hold or punish the relators for the removal of Blair under the requisition for extradition, is without authority and void.

"6. That the writ in this case was properly issued, and inquiry thereunder properly made, for the purpose of showing that the relators were held in custody for removing Blair from this state on the requisition of the governor of Illinois.

"It necessarily follows that the relators have not invoked in vain the aid of this 'high prerogative writ.' They must, there

In re Bull.

fore, be discharged from the custody of the respondent, and it is so ordered."

The respondent, the sheriff, appealed to this court from the order discharging the relators from custody, and the cause was submitted on the pleadings, proofs, and exhibits.

Hunter & Sawyer, and Brown, England, & Brown, for the appellant.

Lamb, Billingsley, & Lamberson, and R. E. Knight, for the relators (appellees).

DILLON, Circuit Judge.- The writ of habeas corpus in this case was issued by the district judge for this district, under the authority conferred by that clause of section 753 of the Revised Statutes of the United States which relates to the case of a prisoner "in custody for an act done in pursuance of a law of the United States." The law of the United States here referred to is to be found in sections 5278 and 5279 of the Revised Statutes, providing for the demand and surrender of fugitives from justice. The relators claim that they have been indicted in the state court and arrested by its process for an act done by them in pursuance of the law of the United States relating to this subject, as incorporated in the two sections of the Revised Statutes above cited.

If the relators had been indicted and were in custody solely for acts done in pursuance of this statute, I agree with the learned district judge, in the elaborate and able opinion which he has filed in the case, that they could be properly discharged on habeas corpus. The cases referred to by him fully support his judgment on this point. (United States, ex rel. Roberts, v. Jailor of Fayette County, 2 Abb. U. S. Rep. 265; ex parte Robinson, 1 Bond, 39; ex parte Jenkins, 2 Wall. Jr. 521; ex parte Jenkins, lb. 539; in re Neill, 8 Blatchf. 156; ex parte Joseph Smith, 3 McLean, 121; ex parte Bridges, 2 Woods, 428; United States v. Morris, 2 Am. Law Reg. 348; ex parte Robinson, 6 McLean, 355.)