convey the same to the United States in lieu of the land to be granted by the government. The argument of the defendants that while the procuring of these school lands from the states through persons who were not qualified to purchase them, and did not desire to purchase them for their own use, and by supporting their application by false affidavits and forged assignments of the certificates of purchase, might have been a violation of the policy of the states of California and Oregon, and a fraud upon such states, it fails to show that the United States could have in any way been defrauded. The argument assumes that the title acquired by the defendants from the states in question was such a title as, upon conveyance to the United States, would vest in the latter a title good as against all the world, and therefore that the United States were not defrauded. While it is doubtless true that, by means of these corrupt and fraudulent practices, Hyde and Benson may have obtained titles to these lands, it does not follow that the states might not have disaffirmed such titles, and recovered the lands. In this particular the case is covered by that of Moffat v. United States, 112 U. S. 24, 28 L. ed. 623, 5 Sup. Ct. Rep. 10. Nor does it follow that, when subsequent conveyances were made to the United States of these lands under the act of June 4, 1897, a good title was vested in the grantee. In the Moffat Case it was held that a patent issued to a fictitious person conveys no title which can be transferred to a person subsequently purchasing in good faith from a supposed owner. In delivering the opinion of the court, Mr. Justice Field observed: "The patents, being issued to fictitious parties, could not transfer the title, and no one could derive any right under a conveyance in the name of the supposed patentees. A patent to a fictitious person is, in legal effect, no more than a declaration that the government thereby conveys the property to no one. There is, in such case, no room for the application of the doctrine that a subsequent bona fide purchaser is protected. A subsequent purchaser is bound to know whether there was in fact a patentee,-a person once in being, and not a mere myth,-and he will always be presumed to take his conveyance upon the knowledge of the truth in this respect. To the application of this doctrine of a bona fide purchaser there must be a genuine instrument, having a legal existence, as well as one appearing on its face to pass the title. It cannot arise on a forged instrument or one executed to fictitious parties, that is, to no parties at all, however much deceived thereby the purchaser may be." The argument that this indictment cannot be sustained because the United States, having received the school lands in lieu of the lands patented, were defrauded of nothing, if valid at all, applies equally to the school lands for which the states of California and Oregon must have received a statutory compensation, fixed at $1.25 per acre. Having received this compensation it may be said, with equal propriety, that they were defrauded of nothing. The result of the argument, then, is that, although a gross imposition was practised upon the states by the procuring of patents in favor of fictitious persons or of disqualified persons by the use of forged affidavits, assignments, or other documents, no indictment therefor would lie because the states had received the same consideration they would have received had the patents been issued to persons qualified under the statutes to purchase the lands. The unsoundness of this argument needs no demonstration. The states have a right to punish a violation of a statute enacted as part of their public policy, notwithstanding they may have suffered no pecuniary damage therefrom. The same argument applies to the United States, whose lands have been procured in plain violation of the spirit, if not the letter, of the statute, and by a further step in the same fraudulent scheme. By the act of June 4, 1897 (30 Stat. at L. 36, chap. 2, U. S. Comp. Stat. 1901, p. 1541), it is provided that in any case in which a tract covered by an unperfected bona fide claim, or by a patent, is included within the limits of a public forest reservation, the settler or owner thereof may, if he desires to do so, relinquish the tract to the government, etc. The privilege of the act is therefore reserved to a settler or owner; and as there is no claim that Hyde was a settler upon the lands, it only remains to consider whether he was an "owner" within the act. Although the word "owner" has a variety of meanings, and may, under certain circumstances, include an equitable as well as a legal ownership, or even a right of present use and possession, it implies something more than a bare legal title, and we know of no authority for saying that a person in possession of land under a void deed can be regarded as the owner thereof. Ownership may not imply a perfect title, but it implies something more than the possession of land under a title which is void; and when the government holds out to owners of lands an inducement to relinquish such lands in exchange for others, it implies that the persons with whom it is dealing, if not the owners in fee simple, are at least bona fide owners, with authority to dispose of and vest a good title thereto. We are clear that that the conclusion is improper, etc. the defendant does not fall within this cat- | dictment are indefinite and inconsistent; egory, and that the United States may justly claim to have been defrauded out of the land patented to him. Cosmos Exploration Co. v. Gray Eagle Oil Co. 190 U. S. 301308, 47 L. ed. 1064, 23 Sup. Ct. Rep. 692; Johnson v. Crookshanks, 21 Or. 339, 28 Pac. 78; Fallbrook Irrig. District v. Abila, 106 Cal. 355, 39 Pac. 794. It is sufficient to say. of these objections that they are proper to be considered by the trial court, and that we do not feel called upon to express our own opinion in regard to them. Criticisms of this character are completely covered by the recent decision of this court in Benson v. Henkel, as well as Whatever may be the rule in equity as to in the cases of Ex parte Watkins, 3 Pet. the necessity of proving an actual loss or 193-206, 7 L. ed. 650-654, and Ex parte damage to the plaintiff, we think a case is Parks, 93 U. S. 18, 23 L. ed. 787, in both of made out under this statute by proof of a which the petitioners sought by writ of haconspiracy to defraud, and the commission beas corpus to review the validity of cerof an overt act, notwithstanding the United | tain indictments under which they had been States may have received a consideration convicted in the courts below, and in both for the lands, and suffered no pecuniary this court declined to review the action of loss. MacLaren v. Cochran, 44 Minn. 255, 46 N. W. 408. The law punishes the false practices by which the lands were obtained, and the question whether the government stands in the position of a bona fide purchaser with respect to the school lands is not one which can be litigated in a criminal prosecution for a violation of law. Even if the United States were in a position to claim the rights of a bona fide purchaser to the state lands, the methods by which these lands were acquired from the states, and the lands in exchange therefor procured from the United States, would be none the less a fraud, of which the latter might take advantage in a criminal prosecution. The indictment under § 5440 charges a conspiracy to defraud the United States out of the possession, use of, and title thereto, of divers large tracts of public lands; and if the title to these lands were obtained by fraudulent practices and in pursuance of a fraudulent design, it is none the less within the statute, though the United States might succeed in defeating a recovery of the state lands by setting up the rights of a bona fide purchaser. Under the circumstances it cannot be doubted that the United States might maintain a bill to cancel the patents to the exchanged lands procured by these fraudulent means, notwithstanding their title to the forest reserve lands might be good. Other minor objections are taken to the indictment: that no description is given of the lands out of which the defendants are alleged to have conspired to defraud the government (Dealy v. United States, 152 U. S. 539, 543, 38 L. ed. 545, 547, 14 Sup. Ct. Rep. 680); that it is uncertain in its allegations as to the means to be used to carry out the alleged conspiracy; that the names representing the fictitious persons and of those not qualified to purchase, through whom the fraud was effected, are not given; that the allegations of the in the court below. It was held that the question whether the act charged was or was not a crime was one which the trial court was competent to decide, and which this court would not review upon a writ of habeas corpus. Our conclusion is that for the purposes of this case the indictment is sufficient. 4. The fourth assignment-that there was no probable cause for believing the petitioner guilty of the offense charged, and that the writ of certiorari should have been issued to bring the record before the courtis based upon that clause of § 1014, which requires that proceedings for the removal of persons from one district to another shall be "agreeably to the usual mode of process against offenders in such state," and § 1487 of the Code of California is cited to the effect that the petitioner shall be discharged where he has been committed upon a criminal charge without reasonable or probable cause. Certain cases are also cited from the supreme court of California, to the effect that it is the right of the prisoner to have the court consider the question of probable cause upon the writ of habeas corpus. People v. Smith, 1 Cal. 9; Ex parte Palmer, 86 Cal. 631, 25 Pac. 130; Ex parte Walpole, 85 Cal. 362, 24 Pac. 657. But see contra, Ex parte Long, 114 Cal. 159, 45 Pac. 1057. In the Federal courts, however, it is well settled that upon habeas corpus the court will not weigh the evidence, although, if the accusation, the court may order his disthere is an entire lack of evidence to support charge. In this case, however, the production of the indictment made at least a prima facie case against the accused, and if the commissioner received evidence on his behalf it was for him to say whether, upon the whole testimony, there was proof of probable cause. Re Oteiza y Cortes (Oteiza y Cortes v. Jacobus), 136 U. S. 330, 34 L. ed. 464, 10 Sup. Ct. Rep. 1031; Bryant v. United States (Ex parte Bryant), 167 U. S. 104, 42 L. ed. 94, 17 Sup. Ct. Rep. 744. | that the petitioner was never in the DisThe requirement that the usual mode of trict of Columbia, except upon one occasion process adopted in the state shall be pur- in 1901, and then only for about six hours, sued refers to the proceedings for the ar- and that he was not then guilty of any of rest and examination of the accused before the offenses charged in the indictment; and the commissioner; but it has no bearing in the case of Dimond, it was said the eviupon the subsequent independent proceeding dence showed that the transactions combefore the circuit court upon habeas corpus. plained of as a conspiracy occurred in CaliIn this case the commissioner did receive fornia or Oregon, of which former state evidence on behalf of the appellants, and, the defendant was, and had been for twenty upon such evidence, found the existence of years, a resident. In other words, it was probable cause, and committed the defend- claimed that the evidence before the comants, and upon application to the district missioner showed conclusively and without judge for the warrant of removal he re- contradiction that there was no probable viewed his action, but did not pass upon the cause to believe the defendants guilty of weight of the evidence. any offense as charged in the indictment. The writ of certiorari was called for in order that this evidence might be brought before the circuit judge, so that he could see from it that there was affirmative and conclusive proof of the absence of probable cause. The applications for the writs of habeas corpus and of certiorari were both denied. The opinion of the circuit judge, delivered upon refusing the writs, shows that the question of the want of probable cause to believe defendants guilty, based upon the absence of both defendants from the District of Columbia at the time of the alleged formation of the conspiracy, was not touched upon by him, but the objections considered were those based upon the charge contained in the indictment, and whether it charged an offense under the laws of the United States. This court now holds that the refusal of the judge to grant the writ of certiorari was within his discretion. While the circuit court may have had power to issue a writ of certiorari auxiliary to the writ of habeas corpus (Ex parte Burford, 3 Cranch, 448, 2 L. ed. 495; Re Martin, 5 Blatchf. 303, Fed. Cas. No. 9,151; Ex parte Bollman, 4 Cranch, 100, 2 L. ed. 563; Church, Habeas Corpus, § 260), it was under no obligation to do so, and its refusal cannot be assigned as error. Certiorari is a discretionary writ, and is often denied where the power to issue it is unquestionable. People ex rel. Church v. Allegany County, 15 Wend. 206; People ex rel. Vanderbilt v. Stilwell, 19 N. Y. 531; Rowe v. Rowe, 28 Mich. 353. Petitions for habeas corpus are frequently accompanied by applications for certiorari as ancillary thereto, and both are awarded or denied together. Appellant had nothing to complain of in the denial of the writ, and his petition should have set forth the evidence relied upon to show a want of probable cause. Terlinden v. Ames, 184 U. S. 279, 46 L. ed. 541, 22 Sup. Ct. Rep. 484; Craemer v. Washington, 168 U. S. 128, 42 L. ed. 408, 18 Sup. Ct. Rep. 1. There was no error in the action of the Circuit Court, and its judgment is therefore affirmed. Mr. Justice Peckham (dissenting): I dissent from the opinion and judgment of the court in this case, and wish simply to state the grounds of my dissent, without any attempt to do more. The indictment avers that the conspiracy was entered into in Washington, District of Columbia, on December 30, 1901, and the opinion holds, in substance (and rightly, as I think), that it is essential to aver its formation in the District in order to give the courts therein jurisdiction of the offense. The indictment constitutes prima facie evidence of probable cause, but evidence may be given to rebut it. It is averred in the application for the writs of habeas corpus and certiorari, in the case of Hyde, that the evidence taken before the commissioner showed indisputably I think this is not the case for the application of the rule stated in the cases cited in the opinion of the court. Those from New York were based upon a matter of public policy, where the purpose was to overturn proceedings in assessments and taxation, in which the public was interested, and the courts refused in such cases to grant the writ. The result of the refusal in this case is to prevent the review of the findings of the commissioner before whom the original proceeding was had, upon the question of probable cause. I admit that the weight of evidence will not, in such cases, be reviewed here, but evidence which conclusively rebuts the presumption of probable cause arising from the indictment, and which is uncontradicted, may be looked at, and a finding of probable cause reversed. In order to refer to it the evidence must be part of the record, and in such a case as this the application for a writ of certiorari to bring up the evidence which the petitioner avers shows such fact is not addressed to the discretion of the court, but, on the contrary, the petitioner has the right to demand that it shall be granted. The Messrs. Frank H. Platt, Charles Page, and Samuel Knight for appellant. Solicitor General Hoyt and Messrs. Francis J. Heney and Arthur B. Pugh for appellee. Per Curiam: This case is indistinguishable from the last, and the judgment of the Circuit Court is also affirmed. right is none the less when the want of probable cause rests upon conclusive evidence of the absence of the defendants from the district at the time when the indictment alleges the conspiracy was formed in such district. If defendants were not then there, they could not be guilty of the crime charged in the indictment. This case is an extreme illustration of the very great hardship involved in sending a man 3,000 miles across the continent, from California or Oregon, to this district for trial, where he is to bring his witnesses, and where on such trial it will appear that the court UNION TRUST COMPANY and Security must direct an acquittal because the averment of the formation of the conspiracy at Washington, D. C., is shown to be false to a demonstration. The expense to a defendant in his necessary preparation for trial, and in procuring the attendance of witnesses in his behalf from such a distance, must necessarily be enormous; and in many, if not in most, cases, utterly beyond the ability of a defendant to pay. The enforcement of the criminal law should not be made oppressive in such cases, and, therefore, when it appears there was no probable cause to found the indictment upon, the order of removal should be refused. I am authorized to say that Mr. Justice White and Mr. Justice McKenna concur in this dissent. (198 U. S. 530) Warehousing Company v. HENRY L. WILSON, Trustee in Bankruptcy of Harry L. Flanders. Pledge of warehouse receipts—sufficiency of delivery as against attaching creditors. The indorsement to a third person, as security for loans, of a receipt issued by a warehouse company for goods kept under lock and key in a place leased by it from the owner of the goods, which receipt recites that it received the property on storage, "to be delivered only upon surrender of this receipt, properly indorsed, and payment of all charges thereon," is a sufficient delivery as against attaching creditors of the owner to validate the transaction as a pledge, whether the receipt is to be deemed a public warehouse receipt under Ill. Rev. Stat. chap. 114, § 2, or not.* taching creditors. "3. If there was no pledge, whether the trust company, under the facts above recited, acquired an equitable lien upon such leather that is superior to the title thereto of the trustee in bankruptcy." No question under the statutes of Illinois. is suggested. Apart from statute, a warehouse receipt simply imports that the goods are in the hands of a certain kind of bailee. A bailee asserting a lien for charges has the technical possession of the goods. But it always is recognized that if the bailee of the owner, by direction of the latter, assents ing the name of the company, which were "2. Whether, if the receipts are not to be kept locked, and to which the company had deemed valid as warehouse receipts, upon the only keys. The company had a key to the facts above recited, the transactions are Flanders' front door, and access to the part to be regarded as constituting pledges of let to it at all hours of day or night. No such leather by Flanders to the trust comone else could get such access without break-pany, which would be valid as against ating in. There were two signs on the outside, stating, in large letters, that the premises were occupied by the company as a public warehouseman. The company received leather from Flanders into this place, issuing a certificate that it had received the same on storage, subject to the order of H. L. Flanders & Co., and identifying the leather; "said commodity to be retained on storage, and delivered only upon surrender of this receipt, properly indorsed, and payment of all charges thereon." To every parcel of the leather was attached a card, legibly stating that it was in the possession of the warehouse company. The company to becoming bailee for another, to whom stipulated in the receipt against liability for damage by fire, water, etc., and, by a general contract with Flanders, the latter assumed all risk of loss except from dishonesty of the company's servants. Flanders paid the company $20 a month for the first $10,000 worth of property or less, and a dollar a month for each additional $1,000. He also paid the expenses of the company in connection with storing the goods. The certificates of the company issued as above were all indorsed by Flanders to the Union Trust Company as security for loans made by it to him in the regular course of business. If Flanders desired to remove any part of the leather, he paid the necessary sum to the trust company, was intrusted with the receipts, got the warehouse company to send a man to unlock the place of enclosure and allow the removal, indorsing on the receipt the amount delivered, if less than all, and then, as the case might be, returned the receipt to the trust company or surrendered it into the warehousing company's hands. That, at the owner has sold, mortgaged, or pledged Flanders became bankrupt, and his trustee filed a bill in the district court, alleging the storage arrangement to have been fraudulent, and claiming the leather on the If, then, the Security Warehousing Comground that it always had been in the pos-pany had possession of the goods, it had it session of Flanders, and therefore had come to the possession of the trustee. Upon these facts the circuit court of appeals certifies the following questions: "1. Whether, upon the facts above recited, the receipts issued by the warehousing company are to be deemed valid warehouse receipts, so that their indorsement by Flanders to the trust company, as security for loans, constituted a pledge or pledges to the trust company of the leather covered by such receipts, which would be valid against attaching creditors. It as bailee; and, unless some reason appears |