The writ does not issue as a matter of course from the federal courts and the peti tion must show a prima facie right thereto ; In re Haskell, 52 Fed. 795 ; In re King, 51 Fed. 434 ; In re Jordan, 49 Fed. 238. And only in rare cases will federal courts dis charge prisoners held under process of state courts ; In re Huse, 79 Fed. 305, 25 C. C. A. 1; In re Krug, 79 Fed. 308.
The federal court may discharge a prison er who is held for an act made criminal by the state in violation of the rights secured by the United States constitution ; In re Da venport, 102 Fed. 540 ; but they will not dis charge a prisoner convicted in a state court except in cases of emergency, but will leave him his writ of error ; In re Stone, 120 Fed. 101; and except under extraordinary cir cumstances, a federal court will not issue the writ for the release of a prisoner held under process issued by a state court in a civil case, on the ground that such court was without jurisdiction in the particular suit where it has jurisdiction over such suits in general ; Mackenzie v. Barrett, 144 Fed. 954, 76 C. C. A. 8.
The writ will not issue unless the court under whose warrant the accused is held is without jurisdiction, and mere objections that the indictment is too vague in general and does not sufficiently inform him of the offence charged, will not be considered ; In re Lewis, 114 Fed. 963.
But if a party is imprisoned by the sen tence of a court, judge or magistrate, which is void for want of authority, as for being under an unconstitutional and void law ; In re Cuddy, 131 U. S. 280, 9 Sup. Ct. 703, 33 L. Ed. 154; In re Ayers, 123 U. S. 443, 8 Sup. Ct. 164, 31 L. Ed. 216 ; In re Sawyer, 124 U. 'S. 200, 8 Sup. Ct. 482, 31 L. Ed. 402 ; or when there was no authority in the person causing the arrest to make it ; Ex parte Lange, 18 Wall. (U. S.) 163, 21 L. Ed: 872; Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717; Ex parte Randolph, 2 Brock, 447, Fed. Cas. No. 11,558 ; In re Farez, 7 Blatchf. 345, Fed. Cas. No. 4,645 ; In re Tyler, 149 U. S. 164, 13 Sup. Ct. 785, 37 L. Ed. 689; In re Swan, 150 U. S. 637, 14 Sup. Ct. 225, 37 L. Ed. 1207 ; then there is ground for discharge under habeas corpus.
In contempt cases, habeas corpus is not issued for one adjudged in contempt, as he may have a writ of error ; Perry v. Pernet, 165 Ind. 67, 74 N. E. 609, 6 Ann. Cas. 533;
In re Stidger, 37 Colo. 407, 86 Pac. 219; to ob tain release the judgment and the sentence must be a mere nullity ; Michaelson v. Bee mer, 72 Neb. 761, 101 N. W. 1007, 9 Ann. Cas. 1181; where there is entire want of juris diction to issue the process for imprisonment, habeas corpus is the proper remedy and the Person need not resort to an appeal ; In re Gribben, 5 Okl. 379, 47 Pac. 1074; but it can not be used to review the proceeding in con tempt, though it is proper in order to secure the discharge of one not a party and there fore not subject to the jurisdiction of the court ; In re Reese, 107 Fed. 942, 47 C. C. A. 87.
The supreme court issues the writ by vir tue of its appellate jurisdiction; Ex parte Bollman, 4 Cra. (U. S.) 75, 2 L. Ed. 554; Ex parte Hung Hang, 108 U. S. 552, 2 Sup. Ct. 863, 27 L. Ed. 811; and it will not grant it at the instance of the subject of a foreign government to obtain the custody of a minor child detained by a citizen of one of the states ; for that would be the exercise of original jurisdiction; Ex parte Barry, 2 How. (U. S.) 65, 11 L. Ed. 181. An appeal lies to the supreme court from a final order of the supreme court of the Territory of New Mexi co ordering a writ of habeas corpus to be discharged ; Gonzales v. Cunningham, 164 U.
S. 612, 17 Sup. Ct. 182, 41 L. Ed. 572.
It will grant it on the application of one committed for .trial in the circuit court on a criminal charge; Ex parte Bollman, 4 Cra. (U. S.) 75, 2 L. Ed. 554; U. S. v. Hamilton, 3 Dall. (U. S.) 17, 1 L. Ed. 490; and where the petitioner is committed on an insufficient warrant ; Ex parte Burford, 3 Cra. (U. S.) 448, 2 L. Ed. 495; and where he is detained by the marshal on a ca/pias act satisfacien dum after the return day of the writ; Ex parte Watkins, 7 Pet. (U. S.) 568, 8 L. Ed. 786; also for the purpose of inquiring into the cause of the restraint of the liberty of prisoners in jail under or by color of the au thority of the United States, and all persons who are in custody in violation of the con stitution or laws of the United States; Ex parte Terry, 128 U. S. 289, 9 Sup. Ct. 77, 33 L. Ed. 405. An alien immigrant may have a writ to test the lawfulness of his restraint from landing by a federal office; Nishimura Ekin v. U. S., 142 U. S. 651, 12 Sup. Ct. 336, 35 L. Ed. 1146.