convey the same to the United States in lieu The argument that this indictment cannot of the land to be granted by the government. be sustained because the United States, hav

The argument of the defendants that ing received the school lands in lieu of the while the procuring of these school lands lands patented, were defrauded of nothing, from the states through persons who were if valid at all, applies equally to the school not qualified to purchase them, and did not lands for which the states of California and desire to purchase them for their own use, Oregon must have received a statutory comand by supporting their application by false pensation, fixed at $1.25 per acre. Having affidavits and forged assignments of the cer- received this compensation it may be said, tificates of purchase, might have been a vio- with equal propriety, that they were delation of the policy of the states of Cali- frauded of nothing. The result of the arfornia and Oregon, and a fraud upon such gument, then, is that, although a gross imstates, it fails to show that the United position was practised upon the states by States could have in any way been de the procuring of patents in favor of fictifrauded. The argument assumes that the tious persons or of disqualified persons by title acquired by the defendants from the the use of forged affidavits, assignments, or states in question was such a title as, upon other documents, no indictment therefor conveyance to the United States, would would lie because the states had received vest in the latter a title good as against all the same consideration they would have rethe world, and therefore that the United ceived had the patents been issued to perStates were not defrauded.

sons qualified under the statutes to purWhile it is doubtless true that, by means chase the lands. The unsoundness of this of these corrupt and fraudulent practices, argument needs no demonstration. The Hyde and Benson may have obtained titles states have a right to punish a violation of to these lands, it does not follow that the a statute enacted as part of their public polstates might not have disaffirmed such ti- icy, notwithstanding they may have suftles, and recovered the lands. In this par- fered no pecuniary damage therefrom. ticular the case is covered by that of Moffat The same argument applies to the United v. United States, 112 U. S. 24, 28 L. ed. 623, States, whose lands have been procured in 5 Sup. Ct. Rep. 10. Nor does it follow that, plain violation of the spirit, if not the letwhen subsequent conveyances were made to ter, of the statute, and by a further step the United States of these lands under the in the same fraudulent scheme. By the act act of June 4, 1897, a good title was vested of June 4, 1897 (30 Stat. at L. 36, chap. 2, in the grantee. In the Moffat Case it was U. S. Comp. Stat. 1901, p. 1541), it is proheld that a patent issued to a fictitious per- vided that in any case in which a tract son conveys no title which can be trans- covered by an unperfected bona fide claim, ferred to a person subsequently purchasing or by a patent, is included within the limin good faith from a supposed owner. In its of a public forest reservation, the settler delivering the opinion of the court, Mr. or owner thereof may, if he desires to do Justice Field observed: “The patents, be- so, relinquish the tract to the government, ing issued to fictitious parties, could not etc. The privilege of the act is therefore transfer the title, and no one could derive reserved to a settler or owner; and as there any rignt under a conveyance in the name is no claim that Hyde was a settler upon of the supposed patentees. A patent to a the lands, it only remains to consider fictitious person is, in legal effect, no more whether he was an "owner” within the act. than a declaration that the government Although the word "owner" has a variety thereby conveys the property to no one. of meanings, and may, under certain cir. There is, in such case, no room for the ap- cumstances, include an equitable as well as plication of the doctrine that a subsequent a legal ownership, or even a right of present bona fide purchaser is protected. A subse- use and possession, it implies something quent purchaser is bound to know whether more than a bare legal title, and we know there was in fact a patentee,-a person once of no authority for saying that a person in in being, and not a mere myth,—and he will possession of land under a void deed can be always be presumed to take his conveyance regarded as the owner thereof. Ownership upon the knowledge of the truth in this re- may not imply a perfect title, but it implies spect. To the application of this doctrine something more than the possession of land of a bona fide purchaser there must be a under a title which is void; and when the genuine instrument, having a legal exist- government holds out to owners of lands an ence, as well as one appearing on its face inducement to relinquish such lands in exto pass the title. It cannot arise on a change for others, it implies that the perforged instrument or one executed to ficti- sons with whom it is dealing, if not the tious parties, that is, to no parties at all, owners in fee simple, are at least bona fide however much deceived thereby the pur- owners, with authority to dispose of and chaser may be.”

vest a good title thereto. We are clear that

the defendant does not fall within this cat- dictment are indefinite and inconsistent; egory, and that the United States may just that the conclusion is improper, etc. ly claim to have been defrauded out of the It is sufficient to say. of these objections land patented to him. Cosmos Exploration that they are proper to be considered by the Co. v. Gray Eagle Oil Co. 190 U. S. 301-trial court, and that we do not feel called 308, 47 L. ed. 1064, 23 Sup. Ct. Rep. 692; upon to express our own opinion in regard Johnson v. Crookshanks, 21 Or. 339, 28 Pac. to them. Criticisms of this character are 78; Fallbrook Irrig. District v. Abila, 106 completely covered by the recent decision of Cal. 355, 39 Pac. 794.

this court in Benson v. Henkel, as well as Whatever may be the rule in equity as to in the cases of Es parte Watkins, 3 Pet. the necessity of proving an actual loss or 193–206, 7 L. ed. 650–654, and Ex parte damage to the plaintiff, we think a case is Parks, 93 U. S. 18, 23 L. ed. 787, in both of made out under this statute by proof of a which the petitioners sought by writ of haconspiracy to defraud, and the commission beas corpus to review the validity of cerof an overt act, notwithstanding the United tain indictments under which they had been States may have received a consideration convicted in the courts below, and in both for the lands, and suffered no pecuniary this court declined to review the action of loss. MacLaren v. Cochran, 44 Minn. 255, the court below. It was held that the ques46 N. W. 408. The law punishes the false tion whether the act charged was or was practices by which the lands were obtained, not a crime was one which the trial court and the question whether the government was competent to decide, and which this stands in the position of a bona fide pur court would not review upon a writ of hachaser with respect to the school lands is beas corpus. not one which can be litigated in a criminal Our conclusion is that for the purposes of prosecution for a violation of law.

this case the indictment is sufficient. Even if the United States were in a posi-l 4. The fourth assignment—that there tion to claim the rights of a bona fide pur- was no probable cause for believing the pechaser to the state lands, the methods by titioner guilty of the offense charged, and which these lands were acquired from the that the writ of certiorari should have been states, and the lands in exchange therefor issued to bring the record before the courtprocured from the United States, would be is based upon that clause of $ 1014, which none the less a fraud, of which the latter requires that proceedings for the removal might take advantage in a criminal prose- of persons from one district to another shall cution. The indictment under 8 5440 be “agreeably to the usual mode of process charges a conspiracy to defraud the United against offenders in such state," and § 1487 States out of the possession, use of, and of the Code of California is cited to the eftitle thereto, of divers large tracts of pub- fect that the petitioner shall be discharged lic lands; and if the title to these lands where he has been committed upon a crimwere obtained by fraudulent practices and inal charge without reasonable or probable in pursuance of a fraudulent design, it is cause. Certain cases are also cited from none the less within the statute, though the the supreme court of California, to the efUnited States might succeed in defeating a fect that it is the right of the prisoner to recovery of the state lands by setting up the have the court consider the question of rights of a bona fide purchaser. Under the probable cause upon the writ of habeas circumstances it cannot be doubted that the corpus. People v. Smith, 1 Cal. 9; Ex United States might maintain a bill to can- parte Palmer, 86 Cal. 631, 25 Pac. 130; E. cel the patents to the exchanged lands pro parte Walpole, 85 Cal. 362, 24 Pac. 657. cured by these fraudulent means, notwith. But see contra, Ex parte Long, 114 Cal. 159, standing their title to the forest reserve 45 Pac. 1057. lands might be good.

In the Federal courts, however, it is well Other minor objections are taken to the settled that upon habeas corpus the court indictment: that no description is given of there is an entire lack of evidence to support

will not weigh the evidence, although, if the lands out of which the defendants are the accusation, the court may order his disalleged to have conspired to defraud the

charge. In this case, however, the producgovernment (Dealy v. United States, 152 U. tion of the indictment made at least a S. 539, 543, 38 L. ed. 545, 547, 14 Sup. Ct. prima facie case against the accused, and Rep. 680); that it is uncertain in its al. if the commissioner received evidence on his legations as to the means to be used to behalf it was for him to say whether, upon carry out the alleged conspiracy; that the the whole testimony, there was proof of names representing the fictitious persons probable cause. Re Oteiza y Cortes (Oteiza and of those not qualified to purchase, y Cortes v. Jacobus), 136 U. S. 330, 34 L. through whom the fraud was effected, are ed. 464, 10 Sup. Ct. Rep. 1031; Bryant v. not given; that the allegations of the in- United States (Eæ parte Bryant), 167 U. S. 104, 42 L. ed. 94, 17 Sup. Ct. Rep. 744. | that the petitioner was never in the DisThe requirement that the usual mode of trict of Columbia, except upon one occasion process adopted in the state shall be pur- in 1901, and then only for about six hours, sued refers to the proceedings for the ar- and that he was not then guilty of any of rest and examination of the accused before the offenses charged in the indictment; and the commissioner; but it has no bearing in the case of Dimond, it was said the eviupon the subsequent independent proceeding dence showed that the transactions combefore the circuit court upon habeas corpus. plained of as a conspiracy occurred in CaliIn this case the commissioner did receive fornia or Oregon, of which former state evidence on behalf of the appellants, and, the defendant was, and had been for twenty upon such evidence, found the existence of years, a resident. In other words, it was probable cause, and committed the defend-claimed that the evidence before the comants, and upon application to the district missioner showed conclusively and without judge for the warrant of removal he re-contradiction that there was no probable viewed his action, but did not pass upon the cause to believe the defendants guilty of weight of the evidence.

any offense as charged in the indictment. While the circuit court may have had The writ of certiorari was called for in power to issue a writ of certiorari auxiliary order that this evidence might be brought to the writ of habeas corpus (Ex parte Bur- before the circuit judge, so that he could ford, 3 Cranch, 448, 2 L. ed. 495; Re Mar- see from it that there was affirmative and tin, 5 Blatchf. 303, Fed. Cas. No. 9,151; conclusive proof of the absence of probable Ex parte Bollman, 4 Cranch, 100, 2 L. ed. cause. The applications for the writs of 563; Church, Habeas Corpus, $ 260), it was habeas corpus and of certiorari were both under no obligation to do so, and its refusal denied. The opinion of the circuit judge, cannot be assigned as error. Certiorari is delivered upon refusing the writs, shows a discretionary writ, and is often denied that the question of the want of probable where the power to issue it is unquestion- cause to believe defendants guilty, based able. Per

. People ex rel. Church v. Allegany upon the absence of both defendants from County, 15 Wend. 206; People es rel. Van- the District of Columbia at the time of the derbilt v. Stilwell, 19 N. Y. 531; Rowe v. alleged formation of the conspiracy, was not Rowe, 28 Mich. 353. Petitions for habeas touched upon by him, but the objections corpus are frequently accompanied by ap- considered were those based upon the charge plications for certiorari as ancillary there-contained in the indictment, and whether to, and both are awarded or denied together. it charged an offense under the laws of the Appellant had nothing to complain of in United States. This court now holds that the denial of the writ, and his petition the refusal of the judge to grant the writ should have set forth the evidence relied of certiorari was within his discretion. upon to show a want of probable cause. I think this is not the case for the apTerlinden v. Ames, 184 U. S. 279, 46 L. ed. plication of the rule stated in the cases 541, 22 Sup. Ct. Rep. 484; Craemer v. cited in the opinion of the court. Those Washington, 168 U. S. 128, 42 L. ed. 408, 18 from New York were based upon a matter Sup. Ct. Rep. 1.

of public policy, where the purpose was to There was no error in the action of the cverturn proceedings in assessments and Circuit Court, and its judgment is therefore taxation, in which the public was interestaffirmed.

ed, and the courts refused in such cases to

grant the writ. The result of the refusal in Mr. Justice Peckham (dissenting): this case is to prevent the review of the

I dissent from the opinion and judgment findings of the commissioner before whom of the court in this case, and wish simply to the original proceeding was had, upon the state the grounds of my dissent, without question of probable cause. I admit that any attempt to do more. The indictment the weight of evidence will not, in such avers that the conspiracy was entered into cases, be reviewed here, but evidence which in Washington, District of Columbia, on conclusively rebuts the presumption of probDecember 30, 1901, and the opinion holds, able cause arising from the indictment, and in substance (and rightly, as I think), that which is uncontradicted, may be looked at, it is essential to aver its formation in the and a finding of probable cause reversed. District in order to give the courts therein In order to refer to it the evidence must be jurisdiction of the offense. The indictment part of the record, and in such a case as constitutes prima facie evidence of probable this the application for a writ of certiorari cause, but evidence may be given to rebut it. to bring up the evidence which the petiIt is averred in the application for the tioner avers shows such fact is not adwrits of habeas corpus and certiorari, in dressed to the discretion of the court, but, the case of Hyde, that the evidence taken be on the contrary, the petitioner has the right fore the commissioner showed indisputably' to demand that it shall be granted. The right is none the less when the want of Messrs. Frank H. Platt, Charles Page, probable cause rests upon conclusive evi- and Samuel Knight for appellant. dence of the absence of the defendants from Solicitor General Hoyt and Messrs. the district at the time when the indictment Francis J. Heney and Arthur B. Pugh alleges the conspiracy was formed in such for appellee. district. If defendants were not then there, they could not be guilty of the crime

Per Curiam: charged in the indictment. This case is

This case is indistinguishable from the an extreme illustration of the very great last, and the judgment of the Circuit Court hardship involved in sending a man 3,000 is also affirmed. miles across the continent, from California or Oregon, to this district for trial, where he is to bring his witnesses, and where on

(198 U. S. 530) such trial it will appear that the court UNION TRUST COMPANY and Security must direct an acquittal because the aver

Warehousing Company ment of the formation of the conspiracy at

v. Washington, D. C., is shown to be false to HENRY L. WILSON, Trustee in Bankrupt. a demonstration.

cy of Harry L. Flanders. The expense to a defendant in his necessary preparation for trial, and in procuring Pledge of warehouse receipts-sufficiency of the attendance of witnesses in his behalf delivery as against attaching creditors. from such a distance, must necessarily be enormous; and in many, if not in most, The indorsement to a third person, as security

for loans, of a receipt issued by a warehouse cases, utterly beyond the ability of a defendant to pay.

company for goods kept under lock and key The enforcement of the

in a place leased by it from the owner of the criminal law should not be made oppressive goods, which receipt recites that it received in such cases, and, therefore, when it ap- the property on storage, “to be delivered only pears there was no probable cause to found

upon surrender of this receipt, properly in.

dorsed, and payment of all charges therethe indictment upon, the order of removal

on," is a sufficient delivery as against attachshould be refused.

ing creditors of the owner to validate the I am authorized to say that Mr. Justice transaction as a pledge, whether the receipt White and Mr. Justice McKenna concur

is to be deemed a public warehouse receipt in this dissent.

under Ill. Rev. Stat. chap. 114, § 2, or not. *

[No. 424.]

ON

(199 U. S. 88)

Submitted January 23, 1905. Decided May
HENRY P. DIMOND, Appt.,

29, 1905.
V.
JOHN H. SHINE,

N A CERTIFICATE from the United

States Circuit Court of Appeals for the Oriminal law-removal to another Federal Seventh Circuit, presenting questions as to

district for trial—courts-jurisdiction of whether the indorsement of receipts issued District of Columbia supreme court over by a warehouse company constituted a conspiracy to defraud United States-suf- pledge valid as against other creditors of ficiency of indictment on habeas corpus- the owner. Answered in the affirmative. probable cause—appeal—refusal to grant The facts are stated in the opinion. certiorari in aid of habeas corpus not re- Messrs. Henry S. Robbins and Charles viewable.

R. Holden for the Union Trust Company

et al. This case is governed by the decision in Hyde Messrs. Edwin Burritt Smith, George V. Shine, ante, 760.

Packard, Vincent J. Walsh, and w. [No. 410.]

Tudor Ap Madock for Wilson, trustee.

Argued February 21, 23, 1905. Decided May Mr. Justice Holmes delivered the opinion 29, 1905.

of the court:

The questions certified by the circuit A

PPEAL from the Circuit Court of the court of appeals arise upon the following

United States for the Northern District facts, abridged from the statement subof California to review the denial of habeas mitted to us. The bankrupt, Flanders, was corpus and certiorari to inquire into a de- a wholesale leather dealer. He walled off a tention to await the removal of a person part of the basement of his place of busi: charged with an offense against the United ness, and let it at a nominal rent to the States to the District of Columbia, where Security Warehousing Company. There the trial is to be had. Affirmed.

were doors to this part, with padlocks bearing the name of the company, which were “2. Whether, if the receipts are not to be kept locked, and to which the company had deemed valid as warehouse receipts, upon the only keys. The company had a key to the facts above recited, the transactions are Flanders' front door, and access to the part to be regarded as constituting pledges of let to it at all hours of day or night. No such leather by Flanders to the trust comone else could get such access without break- pany, which would be valid as against ating in. There were two signs on the out- taching creditors. side, stating, in large letters, that the “3. If there was no pledge, whether the premises were occupied by the company as trust company, under the facts above rea public warehouseman. The company re- cited, acquired an equitable lien upon such ceived leather from Flanders into this place, leather that is superior to the title thereto issuing a certificate that it had received the of the trustee in bankruptcy.” same on storage, subject to the order of No question under the statutes of Illinois H. L. Flanders & Co., and identifying the is suggested. Apart from statute, a wareleather; "said commodity to be retained on house receipt simply imports that the goods storage, and delivered only upon surrender are in the hands of a certain kind of bailee. of this receipt, properly indorsed, and pay- A bailee asserting a lien for charges has ment of all charges thereon.” To every par- the technical possession of the goods. But cel of the leather was attached a card, it always is recognized that if the bailee of legibly stating that it was in the possession the owner, by direction of the latter, assents of the warehouse company. The company to becoming bailee for another, to whom stipulated in the receipt against liability the owner has sold, mortgaged, or pledged for damage by fire, water, etc., and, by a the goods, the change in the character of general contract with Flanders, the latter the bailee's holding satisfies the requireassumed all risk of loss except from dis- ment of a change of possession to validate honesty of the company's servants. Flanders the sale or pledge. Therefore it is common paid the company $20 a month for the first for certain classes of bailees to give receipts $10,000 worth of property or less, and a to the order of the bailor, because, by a dollar a month for each additional $1,000. receipt in that form, the bailee assents in He also paid the expenses of the company advance to becoming bailee for any one who in connection with storing the goods. The is brought within the terms of the receipt certificates of the company issued as above by an indorsement of the same. That, at were all indorsed by Flanders to the Union least, is the argument of Benjamin on Sales, Trust Company as security for loans made 2d ed. 676 et seq., 6th Am. ed. 795, § 817, by it to him in the regular course of busi- is the understanding of merchants, and is

If Flanders desired to remove any the principle adopted as to public warepart of the leather, he paid the necessary house receipts by the statutes of Illinois sum to the trust company, was intrusted (Rev. Stat. chap. 114, § 24), and probably with the receipts, got the warehouse com- adopted by the courts, apart from statute. pany to send a man to unlock the place of Union Trust Co. v. Trumbull, 137 Ill. 146, enclosure and allow the removal, indorsing 173, 27 N. E. 24; Northrop v. First Nat. on the receipt the amount delivered, if less Bank, 27 Ill. App. 527; Millhiser Mfg. Co. than all, and then, as the case might be, re- v. Gallego Mills Co. 101 Va. 579, 589, 44 turned the receipt to the trust company or S. E. 760; Hallgarten v. Oldham, 135 Mass. surrendered it into the warehousing com- 1, 10, 46 Am. Rep. 433. The transfer of pany's hands.

the receipt is not a symbolical delivery, it Flanders became bankrupt, and his trus- is a real delivery, to the same extent as if tee filed a bill in the district court, alleging the goods had been transported to another the storage arrangement to have been warehouse named by the pledgee. fraudulent, and claiming the leather on the If, then, the Security Warehousing Comground that it always had been in the pos- pany had possession of the goods, it had it session of Flanders, and therefore had come as bailee; and, unless some reason appears to the possession of the trustee. Upon these to the contrary, the indorsement of its refacts the circuit court of appeals certifies ceipt, the same being drawn to Flanders' the following questions:

order, was a delivery sufficient to validate “1. Whether, upon the facts above re- the pledge. But there can be no doubt on cited, the receipts issued by the warehous- the facts as stated, without more, that the ing company are to be deemed valid ware company had possession of the goods. It house receipts, so that their indorsement by had them under lock and key, in a place to Flanders to the trust company, as security which it had a legal title and right of for loans, constituted a pledge or pledges to access by lease. Even if it had not had a the trust company of the leather covered by right of access to the place, it would have such receipts, which would be valid against had possession of the contents of the room, attaching creditors.

according to the analogy of the settled law

ness.