‘Mortimer Fox was, on the 13th day of December, 1891, indicted by the grand jury of this court for offenses against *428 the postal laws. The first count of the indictment is based upon section 3892 of the Revised Statutes of the United States, and charges the accused with the offense of taking a letter, which had been in a post office of the United States, before said letter had been delivered to the person to whom it had been directed, with the design to obstruct the correspondence of said person. The second count is based upon section 5470 of the Revised Statutes, and charges the accused with the offense of receiving a check and order for the payment of money stolen from the mail. These crimes are charged to have been committed in the city and county of San Francisco on the 7th day of September, 1891. The accused was arrested at Omaha, Neb., and, by the order of the United States district judge of that district, he was removed to this district. He was arraigned in this court March 11, 1892, when his attorney interposed a demurrer to the indictment. The demurrer was sustained as to the first count, and overruled as to the second count. The accused was thereupon, on the 29th day of April, 1892, admitted to bail in the sum of $1,500, and released from custody. It was provided in the bail bond, among other things, that he should appear in court on the 9th day of May, 1892, and afterwards, whenever or wherever he might be required to answer the said indictment.

On the 9th day of May, 1892, the attorney for the accused appeared in court, and, representing that his client had been arrested and imprisoned by the state authorities, moved for a bench warrant to issue to apprehend and bring the accused into this court. The warrant was issued and placed in the hands of the marshal, who, on May 12, 1892, made return that the party was in the custody of the state authorities, and that he was unable to serve the writ. Thereupon the attorney for the accused sued out this writ of habeas corpus. It appears that, immediately after the accused gave bail and was released from the custody of the United States marshal, he was arrested and imprisoned by the police of the city and county of San Francisco, upon warrants charging him with crimes, under the laws of the state of California; and, while so in prison, he was again arrested upon a warrant, issued out of the police court of the city of Oakland, in the county of Alameda, in this state, and was thereupon taken to the city prison of Oakland, where he has since been confined. The petition for the writ of habeas corpus alleges that the accused is imprisoned, detained, confined, and restrained of his liberty by the chief of police of Oakland, and that the said imprisonment, detention, confinement, and restraint are illegal, and that the illegality thereof consists in the fact that the said Fox was, prior to the said detention by the said chief of police, and is now, under indictment in this court, and .in the custody of this court; that a bench warrant has been issued out of this court for the arrest of said Fo,x on said indictment, but, by reason of the detention aforesaid, the bondsmen of said Fox on said' indictment are unable to produce and surrender said Fox into the actual custody of this court, and said detention is contrary to the laws of the United States, and against the jurisdiction of this court.

To the writ of habeas corpus the chief of police of Oakland has made *429 return that he holds the defendant, Mortimer Fox, in his custody on a charge of felony, viz., forgery, alleged to been committed on the Ictth day of October, 1891, and also by virtue of a warrant of arrest issued out oí the police court of the city of Oakland, on a complaint duly sworn to by C. R. Yates, charging the defendant, Mortimer Fox, with the crime of forgery. A copy of the complaint and warrant is annexed to the return, from which it appears that the defendant is charged with having committed the crime of forgery on the 14th day of October, 1891, at the city of Oakland, in this state, in forging an indorsement on a certain check or order for payment of money, with intent to defraud the Oakland Bank of Savings. The police court of Oakland has jurisdiction to examine this case, and commit and hold the accused to bail for trial in 1he proper court. The only question is as to the extent of the jurisdiction that court has acquired over the person of the defendant to detain him in prison to answer the charge preferred against him in that court, while he is under bail to appear and answer an indictment in this court. The object sought to be accomplished by the writ of habeas corpus in this case is therefore to take the defendant out of the custody of the state authorities, and place him in the custody of the United States marshal of this district, to respond to the indictment in this court. This application comes from the accused, hut his attorney claims also to represent the sureties on the bail bond, who, it is said, desire to surrender the accused, under the provisions of section 1018 of the Revised Statutes, as follows:

The power to award the writ of habeas corpus by the courts of the United States is found in the following provisions of the Revised Statutes :

It is urged that, although Fox is in jail, he is in custody in violation of a law of the United States, and, under the provisions of section 753 of the Revised Statutes, just cited, the writ of habeas corpus issued by this court extends to him. It is not contended, however, that his imprisonment is in violation of any statute law of the United States, but it is claimed, in effect, that his imprisonment by the state court is in violation of the law of procedure which gives this court authority to exercise its jurisdiction undisturbed.

In Taylor v. Taintor, 16 Wall. 466 -370, the supreme court declared the doctrine that—

But how and by whom may this question of jurisdiction be raised? Has the accused, whose alleged malefactions have brought him within the range of two jurisdictions, the right to select the one to which he will first respond? When the questions involved in this case were argued by counsel representing the accused and his sureties on one side, and opposed by counsel representing the state authorities on the other, the United States attorney was in court, but made no suggestion that the United States desired the presence of the accused in this court in advance of the hearing in the state court. There is therefore no actual present conflict of judicial action, except such as the accused and his sureties seek to create by the present proceedings.

In Mackin v. People, 8 N. E. Rep. 178, 180, this question of jurisdiction, in a somewhat different form, was considered by the supreme court of Illinois. Mackin had been tried and convicted in the circuit court of Cook county, 111., and imprisoned in the state penitentiary at Joliet, while on bail under an indictment pending in the United States district court for the northern district of Illinois. His sureties petitioned the súpome court of the state for a writ of habeas corpus, alleging that, jurisdiction having attached to the person of said Mackin first in the United States courts, it was exclusive in effect, until it had wrought its function, and then, and not until then, could the criminal court of Cook county acquire jurisdiction over the person of Mackin to arrest and try, convict and sentence, him on the indictment found against him in said court. The prayer of the petition was that Mackin be discharged or surrendered to his sureties. The court said:

Whether a petition was presented to the United Slates district court fur the purpose of obtaining the judgment of that court upon the question of its jurisdiction over the person of the defendant does not appear, but it is evident that there was no real conflict between the two courts, and that the opinion of the supreme court of Illinois was accepted as a correct statement of a proper qualification of the rule of comity that should obtain between the two jurisdictions in such a case.

The decision of the United Ótales circuit court, for this circuit in Re Neagle, 14 Sawy. 232, oí) Fed. liep. 833, has been cited as declaring principles of law applicable to this case, but the facts in that case were very different. Neagle was a deputy United States marshal, specially commissioned and instructed by the United States marshal to accompany Mr. .Justice Field and protect him from threatened violence. In the execution of this duty Neagle shot and killed Judge Terry. Neagle was thereupon arrested by an officer of the state, and imprisoned in the county jail of Ban Joaquin county. In the petition to the circuit court for a writ of habeas corpus, it was alleged, among other things, that *432 Neagle had been arrested and' confined in prison for an act done by him in the performance of his duty. It thereupon devolved upon the court- to inquire whether he was “in custody for an act done or omitted in pursuance of a law of the United States.” Upon that inquiry the court held,that “it is the exclusive province of the judiciary of the United States to ultimately and exclusively determine any question of right, civil or criminal, arising under the laws of the United States.” Another question was as to the right of the petitioner to have his case heard and determined in a United States court, and upon that point the court observed:

These and other like observations, in the same line of argument, were applicable to the facts in that case, but it would be a strained and unnatural construction to apply them to the facts in the case at bar, where no claim is made that the accused is “in custody for an act done or omitted in pursuance of a law of the United States.” We are, however, not without light from the national judiciary on the very question under discussion.

In the ease of U. S. v, French, 1 Gall. 1 , an information had been filed in the United States circuit court for the district of New Hampshire against the defendant 'for a violation of the embargo act of January 9, 1809. He was arrested, and gave bail, with sureties, for his appearance to answer the information. He was afterwards arrested, and confined in jail, on mesne civil process, under authority of the state of New Hampshire. His sureties thereupon moved in the United States circuit court for a writ of habeas corpus to bring up the body of the defendant to surrender him in court in discharge of the bail. The court, in denying the motion, said:

The counsel then, moved to discharge the sureties from their recognizance, 'on the ground that, as it had become impossible to bring the defendant'into court without any default on his or their part, they ought not to be sufferers. This motion was also denied, the court remarking:

In Ex parte, Robinson, 6 McLean, 355, 363 , Judge McLean, in commenting upon tho practice adopted in the United States courts to follow the established construction of the local laws as declared by the courts of the states, cited the following cases, as indicating the extent to which United States courts have gone in deferring to the jurisdiction and authority of tho state courts. He said:

Since these last decisions were, rendered, the law providing for the writ of habeas corpus in the United States courts has been enlarged by legislative amendment, and amplified by judicial construction, but not, it is believed, in such terms as to give to a defendant, who is charged with having violated both the national and state laws, the right to select the jurisdiction in which he will first he tried. Moreover, it may bo said, in this case, as was said by the supreme court in tho case of Ex, parte Royall, 117 U. S. 241, 250 , 6 Sup. Ct. Rep. 734, that “it is not alleged, and does not appear, that the accused is unable to give security" for his appearance in the state court, or that reasonable bail has been denied him, or that his trial will be unnecessarily delayed.” When the United States attorney desires the presence of the defendant in this court, tho latter may be able to respond in person, or, if he still be detained in prison, he may be surrendered to the United States marshal by the state authorities upon notice that the defendant is required in this court to answer the indictment. If, at that stage of the proceedings, any actual conflict of jurisdiction arises, it will be time enough then to consider what, action should he taken to secure a proper enforcement of the law, bearing in mind the declaration of the supreme court of the United States in Covell v. Heyman, 111 U. S. 176, 182 , 4 Sup. Ct. Rep. 355, “that the forbearance which courts of co-ordinate jurisdiction, administered under a single system, exercise towards each other, *434 whereby conflicts are avoided by avoiding interference with the process of each other, is a principle of comity, with perhaps no higher sanction than the utility which comes from concord, but between the state courts and those of the United States it is something more. It is a principle of right and law, and therefore of necessity. It leaves nothing to discretion or mere convenience.” The writ will be discharged, and Fox remanded to the custody of the chief of police of Oakland.