for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law." And the question presented was whether the grant of power to issue a writ of habeas corpus was an absolute and independent grant or one simply authorizing the issue of the writ when necessary for and in aid of the exercise of a jurisdiction already otherwise obtained, and it was held to be an absolute and independent grant, the conclusion being placed by Chief Justice Marshall, delivering the opinion of the court, partly on the grammatical construction of the section and partly on the significance and importance of the writ itself. But in the Court of Appeals act there is no mention of habeas corpus, no language which can be tortured into a grant of power to issue the writ, except in cases where it may be necessary for the exercise of a jurisdiction already existing.

It will be borne in mind that the Circuit Court of Appeals, which is a court created by statute, Kentucky v. Powers, 201 U. S. 1, 24, is not in terms endowed with any original jurisdiction. It is only a court of appeal. Section 2 of the act says that it "shall be a court of record with appellate jurisdiction, as is hereafter limited and established." Section 6 provides that it "shall exercise appellate jurisdiction to review by appeal or by writ of error final decision in the District Court and the existing Circuit Courts in all cases," etc. By section 10 "whenever on appeal or writ of error or otherwise a case coming from a Circuit Court of Appeals shall be reviewed and determined in the Supreme Court the cause shall be remanded by the Supreme Court to the proper District or Circuit Court for further proceedings in pursuance of such determination." Sections 4, 13 and 15 name the courts whose judgments may be reviewed in the Courts of Appeals. Obviously the Courts of Appeals are simply given appellate jurisdiction over certain specified courts. It follows that they are not authorized to issue original and independent writs of habeas corpus.

Have they jurisdiction to issue writs of certiorari? As we have seen, the procedure prescribed by the statute for bring

ing to the Courts of Appeals those final decisions of courts
which they are authorized to review is appeal or writ of error,
and that in this country is the ordinary method by which
review is obtained in an appellate court. Especially is this
true of the Federal procedure, the only instance in which
certiorari is named as the writ for the removal of cases from
a lower to a higher court being in the authority given to this
court to bring up cases from the Courts of Appeals by cer-
tiorari. Inasmuch as appeal and writ of error are specifically
prescribed in the Court of Appeals act as the process to bring
up final decisions to that court for review, the authority to
issue a certiorari must be found in the grant of power "to issue
all writs not specifically provided for by statute, which may be
necessary for the exercise of their respective jurisdiction, and
agreeable to the usages and principles of law." That cer-
tiorari may be used to bring up portions of a record not origi
nally returned to a Court of Appeals is undoubted, for it may
be necessary for the complete exercise of its appellate juris-
diction, but not otherwise, for every case of which that court
may take jurisdiction can be carried up by appeal or writ of
error. Of course,
if in the case at bar the writ of habeas corpus
was not or could not rightfully be issued, then certiorari can-
not be sustained as auxiliary process, but must stand or fall
as an independent proceeding.

It may be said that the power of this court to issue original and independent writs of certiorari has been upheld under the authority given by section 716. A reference to some of the decisions may be well. See generally Ex parte Vallandigham, 1 Wall. 243, and cases cited in the opinion; Ewing v. City of St. Louis, 5 Wall. 413; Ex parte Lange, 18 Wall. 163.

Fowler v. Lindsey, 3 Dall. 411, was the case of an application before judgment to remove certain actions from the Circuit Court to this court on the ground that a State was the real party in interest, and it was said by Mr. Justice Washington (p. 413):

"But as it is proposed to remove the suits under considera

tion from the Circuit Court into this court, by writs of certiorari, I ask whether it has ever happened, in the course of judicial proceedings, that a certiorari has issued from a superior, to an inferior, court, to remove a cause merely from a defect of jurisdiction? I do not know that such a case could ever occur."

In American Construction Company v. Jacksonville Railway, 148 U. S. 372, where an application was made for mandamus and certiorari, Mr. Justice Gray, speaking for the court, after quoting section 716, said (p. 380):

"Under this provision, the court might doubtless issue writs of certiorari, in proper cases. But the writ of certiorari has not been issued as freely by this court as by the Court of Queen's Bench in England. Ex parte Vallandigham, 1 Wall. 243, 249. It was never issued to bring up from an inferior court of the United States for trial a case within the exclusive jurisdiction of a higher court. Fowler v. Lindsey, 3 Dall. 411, 413; Patterson v. United States, 2 Wheat. 221, 225, 226; Ex parte Hitz, 111 U. S. 766. It was used by this court as an auxiliary process only, to supply imperfections in the record of a case already before it; and not, like a writ of error, to review the judgment of an inferior court. Barton v. Petit, 7 Cranch, 288; Ex parte Gordon, 1 Black, 503; United States v. Adams, 9 Wall. 661; United States v. Young, 94 U. S. 258; Luxton v. North River Bridge, 147 U. S. 337, 341."

In In re Chetwood, Petitioner, 165 U. S. 443, Mr. Chief Justice Fuller said (pp. 461, 462):

"By section 14 of the Judiciary Act of September 24, 1789, 1 Stat. 81, c. 20, carried forward as section 716 of the Revised Statutes, this court and the Circuit and District Courts of the United States were empowered by Congress 'to issue all writs, not specifically provided for by statute, which may be agreeable to the usages and principles of law;' and under this provision, we can undoubtedly issue writs of certiorari in all proper cases. American Construction Company v. Jacksonville Railway, 148 U. S. 372, 380. And although, as ob

served in that case, this writ has not been issued as freely by this court as by the Court of Queen's Bench in England, and, prior to the act of March 3, 1891, c. 517, 26 Stat. 826, had been ordinarily used as an auxiliary process merely, yet, whenever the circumstances imperatively demand that form of interposition the writ may be allowed, as at common law, to correct excesses of jurisdiction and in furtherance of justice. Tidd's Prac., *398; Bac. Ab., Certiorari."

And in In re Tampa Suburban Railroad Company, 168 U. S. 583, it was held that "a writ of certiorari, such as is asked for in this case, will be refused when there is a plain and adequate remedy, by appeal or otherwise."

This court has never decided that certiorari was to be resorted to in place of a writ of error whenever it suited the convenience of parties. There must be "circumstances imperatively demanding" a departure from the ordinary remedy by writ of error or appeal. In the case at bar the indictment charges the introduction of liquor into the Indian country. It is not questioned that this is a criminal offense under the laws of the United States, but it is contended that the place of the alleged offense was not Indian country. The trial court ruled that it was. This ruling was excepted to, a bill of exceptions prepared and signed and the case put in proper condition for review in the Court of Appeals on writ of error. There was no necessity for a certiorari.

Apparently the thought of petitioner was to get rid of the case at once and entirely. It was not a new trial or any mere correction of errors, but a termination of the litigation which induced this proceeding rather than a writ of error. It was a short way of disposing of the entire matter-the same reason that has so often prompted writs of habeas corpus. We have repeatedly held against such procedure. While undoubtedly the power exists, and it may sometimes be proper for a court to put an end to the litigation by some short summary process, yet as a rule the orderly way is to proceed by writ of error. The latest expression of the views of this court is to be found

in Riggins v. United States, 199 U. S. 547. To that and the cases cited in the opinion we refer, saying that in the case at bar there is no special reason why the ordinary procedure should not obtain. It will be borne in mind that the act with which the respondent was charged was not done under or by virtue of the authority of the Constitution or laws of the United States, and therefore his prompt release is not necessary in order to uphold the national authority. It was not an act to be commended, and the only question is whether its punishment was within the jurisdiction of the Federal courts, and that question, under the circumstances, should have been settled in the ordinary way.

For these reasons the decision of the Court of Appeals is reversed, and the case is remanded with instructions to quash the writ of certiorari and dismiss the petition.

FIRST NATIONAL BANK OF BALTIMORE v. STAAKE.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT..

No. 213. Argued March 15, 16, 1906-Decided April 30, 1906.

Under § 67 of the bankruptcy law of 1898 attachments obtained within four months of filing the petition on property which in the absence of the attachments would pass to other persons, and to which the bankrupt has only a bare legal title, may be preserved for the general benefit of the estate, and whatever the trustee realizes thereon may be distributed among the body of the creditors. The lien is valid, but it loses its preferential character in favor of the attaching creditor by the institution of the bankruptcy proceedings.

The extent to which the bankruptcy court shall recognize the rights obtained by creditors upon property attached as property of the bankrupt, but which has been conveyed by unrecorded contract, and the extent to which liens obtained by prior judicial proceedings shall be recognized are wholly within the discretion of Congress.