HYDE ET AL. vs. JENKINS, 6 La. 427

Martin, J., delivered the opinion of the court. On a rule to show cause why a mandamus should not issue to command the judge to allow an appeal from certain interlocutory orders lately made by him in the case of Hyde et al. vs. Jenkins, as prayed by the plaintiffs, he showed the following causes: I. The plaintiffs had arrested the defendant on a charge of his having stolen property of theirs in the city of New York, and had obtained a writ of sequestration for a watch, alleged to be part of said stolen property, as well as an attachment.

The mayor of New-Orleans, in whose office the watch, as well as a number of gold coins, found in the possession of the defendant when he was arrested, had been deposited, refused to deliver them, on a rule taken upon him why an attachment should not issue against him; but it appearing that the governor of the state of New York had required the arrest and surrender of the defendant, who had been indicted in that state for the theft, and that the property stolen and found upon him was to be sent with him in order to facilitate the discovery of truth at his trial, the rule was discharged, but the mayor was directed not to surrender the property to the defendant in case of his being discharged, but on such an event to retain it till the further order of the court.

Afterwards the attorney general obtained a rule against the plaintiffs to show cause why a writ of habeas corpus should not issue to the sheriff for the delivery of the body of the defendant to the proper persons authorised by the governor to receive and convey him back. On cause being shown, the rule was made absolute and the writ ordered to 1 be issued.

Subsequently, on the suggestion of the attorney general, that the property found in the possession of the defendant at the moment of his arrest, was required to be used as means of conviction on his trial; and after hearing tire plaintiffs’ counsel, an order was made for the delivery of it by the mayor, except some bank notes and current coins. From these orders the plaintiffs prayed an appeal, which was refused for the following reasons: 1.

Had an application of a similar kind been made by any competent court in tills state, the District Court would have ordered the accused and flic property alleged to have been stolen, to be surrendered, notwithstanding his body and the property was in the custody of the sheriff under writs obtained in a civil suit, with instructions to retain the body and property, in case of his discharge, so that both might be forthcoming to enforce the plaintiffs’ claim; the rights of the state and the necessity of enforcing criminal justice, being paramount to the claim of any individual in a civil action.

The right of the executive of a sister state to demand a fugitive from justice, and the property to be produced for the discovery of truth at his trial, is recognised by the constitution of the tJnitcd States. Where there is a proper charge of theft, valuable property found on or in the possession of the accused, is presumed to have been stolen. 2. The orders of the court from which the appeal has been prayed have been executed, the defendant and property surrendered and are on their way to New York, and no appeal can be available to the plaintiffs.

The orders were made on the motion of the attorney general, in behalf of the state, and contradictorily with the plaintiffs. The court considered the property as being within its control, and the orders were made not as a matter of legal necessity, but expediency. The plaintiffs may take steps to follow the prisoner and property, and perhaps ask of the executive of this state to require that the prisoner and property may be remanded, when the circumstances may require it. There is no party present against whom an appeal maybe taken, as the state cannot be considered as a party.

T,I° Judge« ^e*n “r^ert,^ fón“”iousnessth”t cm-ect?CIS10" 13 tyA1*°“£’| “ecudty to p*-eaonp^nLycMm j“dgMPit'h>r fi! interest to prevent the decision against Mm from passing in rem Judicatam. To entitle a |eaiy&om an interlocutory judgmcnt.it is unnocessary that the jrinj-y i>e also-Se by°ti™E !“&>”'“f the li°n ryA"¿rei m°Íy hó wS'dicim-gi” the plaintiff’s hold on the body of the debtor and on the property sequestered or attached. 3. There is no irreparable injury done by these orders. 4.

No copy of the warrant of the governor of this state for the arrest of the defendant, nor of the application of the governor, nor of the process-verbal of the seizure of the property was taken. The plaintiffs’ attorney did not require any, and the court did not think it his duty to require such copies ex officio, therefore no record can be made in such a manner as may enable the Supreme Court to revise the decisions from which the appeal is asked. I. On the first cause shown, it does not appear to us that any thing is there alleged which may have any weight with us.

The judge seeks to establish the legality of his decision. If the consciousness of a judge of the correctness of his decision authorised his withholding his fiat when a party expressed his wish to avail himself of his constitutional right to bring it to a test, it would not be vain to pray for an appeal. II. The execution of a judgment by the party against whom it is rendered, is indeed an obstacle to his obtaining an appeal from it.

But although through his inability to obtain security the judgment may have been executed, he may, if he judges it for Ins interest to prevent the execution . , i • /» . . ... i . against him irom passing m rem judicatam* claim an ° i o «/ appeal. *• III. In order that an intercolutory judgment may be appealed from, the party must indeed show that it was an x x x irreparable injury; but the irreparability need not be an * J J 7 * J absolute one. It suffices us to tell such as would be irreparabie by the final judgment on the action of this court on that judgment.

Here, after the interlocutory order had destroyed the plaintiffs’ hold on the body of the debtor, and on the property secured or attached, no judgment of the first court nor of this could replace him on the schedule, he was before the judgment against which he seeks relief, and this suffices to authorise him to forbear the exercise of his right of appeal till after the final judgment of the cause. If an appeal be claimed within the legal delay, the judge a quo cannot refuse to allow it, because the judgment was rendered by his predecessor, who had died without making a statement of facts.

On an application for the writ of habeas corpus, the decision of the judge upon matters of a criminal or political nature is not examinable in the Supreme The writ of habeas corpus may be issued in civil as well as in ¿criminal and political cases. IY. The death of the judge who had rendered a judgment before he may have made a statement of facts, in many instances would prevent an appellant from obtaining one of the legal means of bringing the case before us for examination; still, the judge succeeding to the former, could not, on that account, deny an appeal claimed within the legal time.

None of the causes shown authorises us to withhold the mandamus, we have doubted whether the present case be a civil one, and whether there be a proper party contradictorily with or how the reversal of the orders complained of may be sought.

If the attorney general or the person sent by the governor of New York to claim the fugitive, after having obtained the warrant of our executive, had applied for an habeas corpus to a competent judge at chambers or in court, on the refusal of the officer having the custody of the body of the fugitive, the matter would perhaps have been of a criminal or political nature, and the decision of the judge on the return of the habeas corpus, would not have been examinable in this court, according to the principles laid down in the case of Laverty vs. Duplessis, 3 Martin, p. 42.

But the writ of habeas corpus may be used in civil as well as in criminal and political cases. A tutor deprived of the custody of his ward, or a husband of the company of his wife, may seek a restoration to their rights by a recourse to a writ of habeas corpus; so may a debtor, illegally confined in a civil case. If, then, the decision he erroneous, there is nothing of what fell from the court in Laverty’s case, that will operate against the right of the injured party of having the decision of the first judge reversed on an appeal.

Here the applicant for a mandamus shows that he instituted a civil action against his debtor, whose body was arrested and imprisoned for want of bail; that property on which he claimed some right was sequestered and attached; that the officers of the state thought it for its interest that it should intervene in the suit, demand contradictorily, and make the plaintiff surrender the debtor and property. It called on the plaintiff to declare his reasons for insisting on the detention of both. The District Court has sustained the claim of the state, and deprived the plaintiff of the security he was in possession.

We are not ready to say that the decision of the court is not a judgment in a civil suit; the plaintiff contends it is, and must have the right of testing his pretentions contradictorily with the party who has obtained a judgment disregarding them. Let the mandamus issue as prayed for.