21 Wend. Rep. 255. In the last case, the court say, in their reasoning, that although the principal debtor may be said to be insolvent, yet it is impossible to anticipate the fruits which may arise from the due prosecution of the claim. Property may be discovered, or some friend come forward and satisfy the debt, etc. But in these and other cases referred to, the attention of the court appears to have been directed to the question, whether the legal remedies could, for any cause, be dispensed with, rather than the time within which they should be prosecuted.

The

But the case before us is clearly distinguishable from the cases referred to. The defendant, in the agreed statement of facts, admitted that, at no time after the note became due, could any part of it have been collected from the principal debtor. The stipulation in the guaranty was, to warrant payment after final process. The reasonable time implied for the pursuit of the legal remedy, had relation to all the circumstances surrounding the case. object in requiring diligence in the proceeding against the principal, was safety to the guarantor. And, inasmuch as it was apparent, when the note became due, that nothing could be collected from Boner, a delay of a few months in commencing suit against him, operated beneficially to the guarantor, as it was indulgence to him, and afforded time to the principal debtor to accumulate means. There is, certainly, no sensible and substantial reason why this delay should operate to discharge the guarantor. This is not a case requiring the application of the strict and arbitrary rules of the mercantile law, sometimes so essential to secure promptness and vigilance, with a view to certainty and confidence in commercial transactions. And the defendant cannot claim for himself the observance of that strictness sometimes allowed in favor of sureties; for his engagement does not stand upon the consideration of the original debt, but is founded on an independent consideration, for his own benefit. IIad the defendant specially stipulated in the contract for diligence, on the part of the plaintiff, in commencing suit against the maker of the note, or had he specially directed it to be done, he might, with some reason, insist on the non-compliance by the plaintiff, as a ground for his discharge. Or had the defendant

suffered loss, by the delay in the proceeding against the maker of the note, he would certainly be entitled to a discharge from his liability, so far, at least, as he had been damnified. But since he has been in nowise whatsoever prejudiced by the delay, there exists no just and substantial reason for his discharge from his liability on this ground.

We are of opinion, therefore, that there is error in the proceedings of the court below.

Judgment of the Common Pleas reversed, and the cause remanded for further proceedings.

In the District Court of the United States, Southern District of Ohio,-April Term, 1856.

EX PARTE ROBINSON, MARSHAL OF SAID DISTRICT,-HABEAS CORPUs.

1. The 7th section of the act of Congress of the 2d of March, 1833, authorizes any judge of the United States to issue the writ of habeas corpus where an officer of the United States is imprisoned "for any act done or omitted to be done, in pursuance of a law of the United States."

2. It is the proper remedy where a marshal is imprisoned by the sentence of a State judge as for a contempt in not producing the bodies of certain persons named in a writ of habeas corpus issued by such judge, and if it appears from the evidence that such perons were legally in the custody of the marshal pursuant to the provisions of the Fugitive Slave act, and that his refusal to produce them before the State judge was a paramount duty by the terms of the said act, the marshal is entitled to his discharge under the said 7th section of the act of 1833.

3. In ordering his discharge upon a habeas, a judge of the United States does not
assume a jurisdiction to review or reverse the sentence or judgment of the State
judge, but merely exercises a power expressly conferred by an act of Congress.
4. Although the authorities are not uniform as to the right of a State judge to issue
the writ of habeas corpus, where the imprisonment is under the authority of a law
of the United States, it is well settled, that when the fact is proved that the im-
prisonment is under such authority, the jurisdiction of the State judge is at an
end, and all subsequent proceedings are coram non judice.

Messrs. Ketchum and Headington, for the marshal.
Messrs. Cox and Jolliffe, in opposition to the discharge.

The opinion of the court was delivered by

LEAVITT, J.—The facts which it is material to notice in the decision of the question before me are, that on the 28th of January last, one Gaines, a citizen of Kentucky, on his affidavit that certain colored persons, owing him service in said State, had escaped to the State of Ohio, obtained a warrant from John L. Pendery, a Commissioner of the Circuit Court of the United States for the Southern District of Ohio, directed to the marshal of said district, requiring him to arrest said persons as fugitives from labor, and have them before said Commissioner forthwith; in obedience to which warrant, on the 30th of January the marshal made return that he had arrested the said persons and had them before said Commissioner. On the 9th of February, and while the investigation before the Commissioner was pending, he issued his warrant to the marshal, requiring him to commit the alleged fugitives to the jail of Hamilton county for safe keeping, to be produced from time to time, as required; and they were duly committed to said jail in pursuance of such warrant. On the 21st of February, on the petition of one Jesse Beckley, alleging that said persons were unlawfully detained in custody by the marshal of said district, a writ of habeas corpus was issued by the judge of the Probate Court of Hamilton County, requiring the marshal to have them before said judge forthwith, with the cause of their caption and detention. On the 28th of February, the Commissioner adjudged the said fugitives to be the property of said Gaines, and ordered them to be delivered to him, to be removed to the State of Kentucky. On the same day, the said Gaines made his affidavit that he was apprehensive that said fugitives would be rescued by force, and required that they should be delivered to him in the State of Kentucky by the marshal, pursuant to provisions of the act of Congress. They were delivered to the claimant by the marshal, according to said request.

On the 27th of February the marshal appeared before the judge of the Probate Court of Hamilton County and submitted, by his counsel, a motion to dismiss the writ of habeas corpus issued by said judge, which motion was taken under advisement, and an order was entered by the judge that the marshal should not remove the

persons named in the writ from the jurisdiction of the court till the final decision of the motion, which order was served on the marshal on the 28th of February.

On the 1st of March a motion was again made to dismiss the writ of habeas corpus, which was overruled by the Probate Judge, who entered an order requiring the marshal to make a return to said writ on the 7th of March. And on that day the marshal, protesting against the jurisdiction of the Probate judge, made his return to the writ of habeas corpus, in which he sets out the proceedings before the Commissioner upon the claim of said Gaines, and avers that at the time of the service of the writ of habeas corpus on him he held the persons named in it in his custody, under the order of the Commissioner, as before noticed, by virtue of his office as marshal, and by authority of law; and that on the said 27th of February, when he appeared before the Probate judge and made his motion to dismiss the writ of habeas corpus, and when the order of that date was made by said judge, as before stated, he held said persons in his custody by virtue of his office as marshal, and by authority of law, and that afterwards, upon the demand of said claimant, delivered them to him in the State of Kentucky.

On the 8th of March the question as to the sufficiency of the marshal's return was argued before the Probate judge, who continued the same for advisement till the 18th of March; and on that day decided that said return was insufficient, for the reasons that the persons named in said writ of habeas corpus were not produced before him, and that the marshal, after the service of said writ, and after the order that the persons named therein should not be removed from the jurisdiction of the court, had removed them to the State of Kentucky.

The probate judge, thereupon, adjudged the marshal guilty of a contempt of court, and ordered that proceedings should be instituted against him for such contempt. And on the said 18th of March, specifications were filed against the marshal, embodying the charges for contempt. At the same time a rule was entered requiring the marshal within two days from the service thereof, to show cause why he should not be attached and punished for such contempt.

This rule was served on the 15th inst., and on the 17th he filed his answer, setting forth that the acts complained of as a contempt of said Probate Court were done or omitted in the discharge of his duties as marshal of the United States for the Southern District of Ohio, and in pursuance of the laws of the United States: and he again denied the jurisdiction of said court to hold him accountable for said acts. To this answer, a replication was filed by the prosecuting attorney of Hamilton county, setting forth that the acts of the marshal were not done or omitted in the discharge of his duties as such officer, nor in pursuance of the laws of the United States.

On the same day, the probate judge decided the answer of the marshal was insufficient, and adjudged him guilty of a contempt of this court, and ordered that for such contempt he should be fined in the sum of three hundred dollars and costs, and be committed to the jail of Hamilton county. A commitment was immediately issued by the Probate Court, and pursuant thereto the marshal was seized and lodged in jail.

And on the same day, the marshal presented his petition to me, setting forth under oath the facts connected with his imprisonment, averring that he was unlawfully detained in custody, and praying for a writ of habeas corpus directed to the sheriff of Hamilton county. The writ was accordingly issued, and has been duly returned by the sheriff; and the marshal, by his counsel, now moves for his discharge from custody.

The habeas corpus in this case issued pursuant to the seventh section of the act of Congress, passed March 2d, 1833, which provides "that either of the justices of the Supreme Court or a judge of any District Court of the United States, in addition to the authority already conferred by law, shall have power to grant writs of habeas corpus in all cases of a prisoner or prisoners in jail or confinement, when he or they shall be committed or confined on or by any authority of law, for any act done or omitted to be done in pursuance of a law of the United States, or any order, process or decree of any judge or court thereof, anything in any act of Congress to the contrary notwithstanding."

It is insisted by the counsel who oppose the discharge of the