of personal freedom is not involved except in the sense of a determination as to which custodian shall have charge of one not entitled to be freed from restraint. As was said by Sharkey, C. J., in 6 How. (Miss.) 472:

"An infant is not entitled to his freedom; an adult is. When a habeas corpus is granted to an adult, the object is to inquire whether he is legally restrained of his liberty, because if he is not, he must be set free, for the plain reason that by law he is entitled to his freedom. But if the court is also to set the infant free, they give him a right to which he is not entitled, and deprive the parent or guardian of a right to which he is entitled; to wit, the custody of the infant."

We think that such considerations as these induced Congress to limit the right of appeal to this court in habeas corpus cases. The discretionary power, exercised in rendering the judgment, the ability of local tribunals to see and hear the witnesses and the rival claimants for custody of children, induced, in our opinion, the denial of appeal in such cases as the one at bar, as distinguished from those of a different character, where personal liberty is really involved, and release from illegal restraint, a high constitutional and legal right not resting in the exercise of discretion, is sought, in which an appeal is given to this court.

In the present case there was no attempt to illegally wrest the custody of the child from its lawful guardian while temporarily in the Territory of Arizona. The society voluntarily took the child there with the intention that it should remain. Through imposition the child was placed in custody of those unfit to receive or maintain control over it, and, as above stated, came into the custody and possession of the respondent.

The child was within the jurisdiction of the court under such circumstances that rival claimants of the right of custody might invoke the jurisdiction of a competent court of the Territory to determine, not the right of personal freedom, but to which custodian a child of tender years should be committed. Woodworth v. Spring, 4 Allen, 321.

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Argument for Plaintiff in Error.

We do not think that the case comes within the provisions of section 1909, permitting an appeal to this court only in cases involving the question of personal freedom.

The appeal will be dismissed for want of jurisdiction.

MR. JUSTICE BREWER took no part in the decision of this

case.

CRANE v. BUCKLEY.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH

CIRCUIT.

No. 58. Argued October 25, 1906.-Decided December 3, 1906.

The obligation of sureties upon bonds is strictissimi juris and not to be extended by implication or enlarged construction of the terms of the contract entered into.

Sureties on a supersedeas bond given by defendant to answer, in case of his failure to prosecute his appeal to effect, to plaintiff for loss in use and possession of premises, which, under decree of Circuit Court, plaintiff was entitled to reenter on a date therein specified in default of payment by defendant of balance of purchase price, held not liable on the bond where the Circuit Court of Appeals affirmed the decree as to plaintiff's right to reënter in case of non-payment, but modified it by giving defendant until a later date to make the final payment, thereby also extending his right of possession until that date.

THE facts are stated in the opinion.

Mr. Charles S. Cushing, with whom Mr. William Grant was on the brief, for plaintiff in error:

The bond under consideration is given under § 1000, Rev. Stat., and is a formal instrument required by the law, and governed by the law, and has, by nearly a century's use become a formula in legal proceedings, with a fixed and definite meaning. Hotel Co. v. Kountze, 107 U. S. 378.

The affirmance of the judgment by the upper court conclusively establishes the liability of the appellant on the bond.

Argument for Defendant in Error.

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Davis v. Patrick, 57 Fed. Rep. 909; Babbit v. Shields, 101 U. S. 7.

The only question to consider is, was the judgment of the lower court affirmed? In the case now under consideration the judge, who first tried the case in the lower court, determined that the judgment had been affirmed and instructed the jury accordingly. This ruling was correct although reversed by the Circuit Court of Appeals.

As to the term "prosecute to effect," meaning "prosecute with success," see 10 Am. & Eng. Ency. of Law, 2d ed., 445; Perreau v. Bevan, 5 B. & C. 284; Gould v. Warner, 3 Wend. (N. Y.) 54; Karthaus v. Owings, 6 H. & J. (Md.) 138.

The construction placed upon this phrase, "prosecute to effect," by the bulk of authorities, is that the suit shall be prosecuted successfully to a final judgment. Note to 38 Am. St. Rep. 706; Wood v. Thomas, 5 Blackford, 553; Trent v. Rhomberg, 66 Texas, 253; Butt v. Stinger, 4 Cr. C. C. 252; Hopkins v. Orr, 124 U. S. 510.

The decree entered by the lower court, modifying the former judgment, is a false quantity in the case and cannot affect the question as to whether Buckley made good his appeal. The action of the upper court in affirming the judgment conclusively established the liability on the bond. Davis v. Patrick, 57 Fed. Rep. 909; Babbitt v. Shields, 101 U. S. 7.

Mr. D. M. Delmas for defendant in error, submitted: The right of Buckley to remain in possession of the premises was coextensive with his right to complete the payment of the amount adjudged to be due to Crane. Gessner v. Palmateer, 89 California, 91, 97; Dingley v. Bank of Ventura, 57 California, 471; Avery v. Clark, 87 California, 619; Sparks v. Hesse, 15 California, 194; Purser v. Cody, 120 California, 218.

The appeal was prosecuted to effect so far as the possession of the property was concerned, between January 1, 1899, and November 1, 1899, and, therefore, the sureties upon the supersedeas bond were relieved from all liability to plaintiff in

203 U.S.

error.

Opinion of the Court.

Powers v. Crane, 67 California, 65; Powers v. Chabot, 93 California, 263; McCallion v. Hibernia S. & L. S., 98 California, 442; Chase v. Ries, 10 California, 518; Hawes v. Sternheim, 57 Ill. App. 126; Heinlen v. Beans, 73 California, 340; Daggett v. Mensch, 141 Illinois, 396; Poppenhausen v. Selley et al., 41 Barb. 450; Perkins v. Spaulding, 3 T. B. Mon. (Ky.), 12; Kibble v. Butler, 28 Mississippi, 587.

MR. JUSTICE DAY delivered the opinion of the court.

This was an action upon a supersedeas bond, brought by the plaintiff in error, Henry A. Crane, against defendants in error, Cornelius F. Buckley as principal, and Rudolph Spreckles and Timothy Hopkins as sureties.

The bond was given in an action brought by Crane against Buckley in the Superior Court of Tulare County, California, removed to the United States Circuit Court of the Southern District of California.

Crane brought suit to foreclose a contract for the sale of certain lands to Buckley and for the recovery of possession thereof. Upon answer and cross-bill Buckley made the defense that the sale was procured by false and fraudulent statements and misrepresentations. The court found for complainant Crane; that the charges of fraud were not sustained; that the rights, interests and claims of Buckley in and to the property should be foreclosed, subject to the equitable privilege that if Buckley should pay to Crane prior to January 1, 1899, the unpaid portion of the purchase price and the interest thereon, with taxes and costs, Crane should convey to Buckley all the said real estate pursuant to the agreement of purchase, and it was provided in said decree:

"And unless said respondent shall place on file herein some sufficient and satisfactory evidence that he has paid, or has tendered, and is able, ready and willing to pay, to said complainant, Henry A. Crane, the amounts of money herein before provided to be paid for the purchase of said property, on or

before the first day of January, A. D. 1899, it is ordered, adjudged and decreed that the clerk of this court do, on request of said complainant, Henry A. Crane, or of his counsel, issue a suitable and sufficient order or writ to the marshal of this court, and under the seal thereof to remove said respondent, Cornelius F. Buckley, from the possession, use and occupation of said real property, water ditches, water rights and rights of way, and to place complainant, Henry A. Crane, or his legal representatives, in the exclusive possession, use and occupation thereof."

This decree was entered on November 16, 1898; on December 16, 1898, Buckley appealed from the decree to the Circuit Court of Appeals, and a supersedeas bond in the sum of $8,000, being the one in suit, was given. This bond is as follows:

"Whereas, the said respondent and cross complainant is desirous of staying the execution of the said judgment so appealed from in so far as it relates to the possession of the land and premises involved therein, and is desirous of staying the execution of said judgment or decree, so appealed from, in so far as it relates to the costs awarded to complainant therein:

"Now, the condition of the above obligation is such that if the said C. F. Buckley shall prosecute his appeal to effect, and shall answer all damages and costs that have been and shall be awarded against him, if he fails to make his appeal good, and if he shall answer all damages that shall accrue to the said respondent by reason of the value of the use and occupation of the land and premises from the time of said appeal until the. delivery of possession thereof to said Henry A. Crane, and for all waste committed thereon, then the above obligation to be void, else to remain in full force and effect."

October 2, 1899, the Circuit Court of Appeals affirmed the decree. On October 19, 1899, Buckley having filed a petition for rehearing as to a part of the judgment given October 2, 1899, or for such modification thereof as would allow him until November 1, 1899, within which to make the payments required, the Circuit Court of Appeals found: