"And thereupon, on motion of the attorney for the commonwealth, the case is continued until the next term.

"And the court, of its own motion, required the prisoner to enter into a bond, with security, in the penalty of $10,000, and until such bond is given he is committed to the custody of the jailer of this county.

"Enter. Wm. E. Fulton, Judge." In pursuance of this petition a writ of habeas corpus was issued, on August 11, 1896, directed to I. R. Harkrader, sheriff of Wythe county, Va., and, as such, jailer of said county, commanding him to bring said H. G. Wadley, together with the day and cause of his caption and detention, before Charles H. Simonton, judge of the circuit court of the United States within and for said district aforesaid, on August 14, 1896.

On August 14, 1896, I. R. Harkrader, sheriff, produced the body of said Wadley, and made the following return:

'To the Honorable Judge of the United States Circuit Court for the Fourth Circuit of the United States:

'In the matter of the petition of H. G. Wadley and the writ of habeas corpus ad subjiciendum which issued from the clerk's office of the circuit court of the United States for the Western district of Virginia on the 11th day of August, 1896, and returnable on the 14th day of August, 1896, in the town of Wytheville, Wythe county, Virginia, this respondent, for answer to the said writ, says that he here produces the body of the said H. G. Wadley, the person named in the said petition for the said writ, in obedience to the command and direction thereof, and for further return and answer to said writ here avers that he detained in his custody the body of said H. G. Wadley under and by virtue of an order of the county court of Wythe county, state of Virginia, entered in the case of the Commonwealth of Virginia v. said H. G. Wadley on the 10th day of August, 1896, upon an indictment for a felony pending in said court against said Wadley. So much of said order as relates to the custody of said Wadley is here inserted in the wards and figures following, to wit:

"And the court, of its own motion, required the prisoner to enter into bond, with security, in the penalty of $10,000, and until such bond is given he is committed to the custody of the jailer of this county.'

'And now respondent, having fully answered, prays that said writ may be discharged, and that he may be awarded his costs about his return to the writ aforesaid in this behalf expended; and, in duty bound, he will ever pray, etc.

I. R. Harkrader,

'Sheriff of Wythe County, Va., and as Such Jailer Thereof.'

To this return Wadley filed a reply in the following words:

'The petitioner, H. G. Wadley, comes and says that for aught contained in the said return of I. R. Harkrader, sheriff of Wythe county, Virginia, to his petition for habeas corpus, that petitioner is entitled to his discharge, because he denies, as contained in said return, said county court of Wythe county, Virginia, had any jurisdiction of said petitioner or the subject-matter of said indictment at the time it was found or now has such jurisdiction. Petitioner denies the validity of the order of commitment of said court of petitioner to said sheriff of 10th August, 1896, relied on in said return, and says that commitment is void, because said court has no jurisdiction to enter it, and also because the indictment upon which the petitioner was so committed was obtained in violation of the constitution of the United States, by the illegal and unconstitutional use of petitioner's deposition withdrawn from the files of this court and carried before and read to the said grand jury which found the said indictment, and hence said custody is unlawful, and petitioner is deprived illegally of his personal liberty.'

'And now comes H. G. Wadley in his own proper person and by his counsel, Blair & Blair, and, having heard the return of said sheriff read in answer to the writ of habeas corpus awarded in this cause, he says that the said return, and the matters therein contained and set forth, are not sufficient in law, and that the said return shows no legal ground for petitioner's detention by said sheriff, and that it is not sufficient answer to the matters of law and fact contained in said petition and exhibits, and this he is ready to verify; wherefore, for want of any sufficient return in this behalf, said H. G. Wadley, the petitioner, prays judgment that the said return be held insufficient; that an order be entered discharging petitioner from the custody of the said sheriff.'

The record, as certified, discloses the following proceedings:

'On this the 14th day of August, 1896, came H. G. Wadley, the petitioner, by his counsel, Blair & Blair, and this cause coming on to be heard upon the petition for a writ of habeas corpus and for order of discharge, with the exhibits filed with the said petition, and said petition being duly verified by the affidavit of the petitioner, and upon the writ of habeas corpus issued on said petition on the 11th of August, 1896, and duly executed upon I. R. Harkrader, sheriff of Wythe county, and as such the jailer and warden of said county, in whose custody the petitioner is detained, and upon the return of said sheriff to said writ of habeas corpus, with the commitment filed therewith as the authority under which he acts, upon the demurrer of petitioner to said return and joinder in said demurrer, and upon the answer and denial of the said petitioner to said return, and upon the record in said case of H. G. Wadley vs. Blount and Boynton et al., and upon the production of the body of said H. G. Wadley before this court by the said sheriff, the said sheriff appearing in person, and also by counsel, attorney general of Virginia, and after argument of counsel, and the court being fully advised in the premises, the court finds that the said petitioner, H. G. Wadley, is unlawfully restrained of his liberty by the county court of Wythe county, Virginia, by virtue of an order of the judge thereof, committing him to custody in default of bail, entered on the 10th of August, 1896, on an indictment of the Commonwealth of Virginia vs. H. G. Wadley on a complaint of felony set up in the petition, notwithstanding the injunction and writ of this court. It is therefore considered and ordered by this court that the said H. G. Wadley be discharged from the custody of the said I. R. Harkrader, sheriff of Wythe county, Virginia, and from the custody of said court, as said court cannot prosecute said indictment pending said injunction, and that the said H. G. Wadley hold himself subject to the further order of this court.

'And it is further ordered that the United States marshal for the Western district of Virginia serve a copy of this order upon I. R. Harkrader, sheriff of Wythe county, Virginia, and as such the warden and jailer of said county, and also a copy thereof upon W. E. Fulton, judge of said court, and Robert Sayers, Jr., the commonwealth's attorney for Wythe county, Virginia.

'15th August, 1896.

'To I. C. Fowler, Clerk of This Court at Abingdon, Va.

'Charles H. Simonton, Circuit Judge.

'The attorney general of Virginia, in his proper person, states that from this order the commonwealth of Virginia desires to appeal.

'Charles H. Simonton.'

Thereafter, I. R. Harkrader, sheriff of Wythe county, Va., by R. Taylor Scott, attorney general of Virginia and counsel for petitioner, filed a petition for an appeal to the supreme court of the United States, which was, on October 12, 1896, allowed by the circuit judge of the circuit court for the Western district of Virginia.

A. J. Montague, for appellant.

F. S. Blair, for appellee.

Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.

The appellee has moved the dismissal of the appeal because, as is alleged, the order discharging the prisoner on the writ of habeas corpus was made by a judge, and not by a court; because the order, whether made by a judge or a court, was not final, as the prisoner was discharged only 'pending said injunction,' and was held subject to the further order of the United States circuit court; and because there was no certificate from the court below as to the distinct question of jurisdiction involved.

It is indeed true, as was decided in Carper v. Fitzgerald, 121 U. S. 87, 7 Sup. Ct. 825, that no appeal lies to this court from an order of a circuit judge of the United States, and not as a court, discharging the prisoner brought before him on a writ of habeas corpus. But this record discloses that, while the original order was made at chambers, the final order, overruling the return of the sheriff and discharging the prisoner from custody, was the decision of the circuit court at a stated term, and therefore the case falls within In re Palliser, 136 U. S. 262, 10 Sup. Ct. 1034.

We see no merit in the suggestion that the order discharging the prisoner was not a final judgment. It certainly, if valid, took away the custody of the prisoner from the state court, and put an end to his imprisonment under the process of that court.

That the jurisdiction of the circuit court was put in issue by the petition for the writ of habeas corpus and the return thereto is quite evident. The contention made, that such question has not been presented to us by a sufficiently explicit certificate, we need not consider, for the case plainly involves the application of the constitution of the United States. The division and apportionment of judicial power made by that instrument left to the states the right to make and enforce their own criminal laws. And while it is the duty of this court, in the exercise of its judicial power, to maintain the supremacy of the constitution and laws of the United States, it is also its duty to guard the states from any encroachment upon their reserved rights by the general government or the courts thereof. As we shall presently see, this is the nature of the question raised by this record.

It is doubtless true, as urged by the appellee's counsel, that an assignment of error cannot import into a cause questions of jurisdiction which the record does not show distinctly raised and passed on in the court below; but we think that this record does disclose that the assignments of error, which were embodied in the prayer for an appeal, set up distinctly the very questions of jurisdiction which were contained in the record and passed on by the trial court.

The further contention on behalf of the appellee, that the record does not show that the appeal as allowed was ever 'filed' in the United States circuit court, and that, therefore, this court is without jurisdiction to entertain the case, we cannot accept, because we think the record, as certified to us, distinctly shows that the petition for appeal was filed on October 8, 1896; that the appeal was allowed on October 12, 1896; that the bond, containing a recital that the said Harkrader, sheriff, had 'obtained an appeal and filed a copy thereof in the clerk's office of said court,' was filed and approved on October 12, 1896; and that the citation was served and duly filed. This is a plain showing that the appeal as allowed was duly 'filed.' It is sufficient to cite Credit Co. v. Arkansas Cent. Ry. Co., 128 U. S. 261, 9 Sup. Ct. 108, where it was said: 'An appeal cannot be said to be 'taken' any more than a writ of error can be said to be 'brought' until it is in some way presented to the court which made the decree appealed from, thereby putting an end to its jurisdiction over the cause, and making it its duty to send it to the appellate court. This is done by filing the papers, viz. the petition and allowance of appeal (where there is such petition and allowance), the appeal bond, and the citation. In Brandies v. Cochran, 105 U. S. 262, it was held that, in the absence of a petition and allowance, the filing of the appeal bond, duly approved by a justice of this court, was sufficient evidence of the allowance of an appeal, and was a sufficient compliance with the law requiring the appeal to be filed in the clerk's office.'

We now come to the question, thus solely presented for our consideration, had the circuit court of the United States authority to issue a writ of habeas corpus to take and discharge a prisoner from the custody of the state court when proceeding under a state statute not repugnant to the constitution or laws of the United States, under which the prisoner had been indicted for an offense against the laws of the state?

Two propositions have been so firmly established by frequent decisions of this court as to require only to be stated: First. When a state court has entered upon the trial of a criminal case, under a statute not repugnant to the constitution of the United States, or to any law or treaty thereof, and where the state court has jurisdiction of the offense and of the accused, no mere error in the conduct of the trial can be made the basis of jurisdiction in a court of the United States to review the proceedings upon a writ of habeas corpus. Andrews v. Swartz, 156 U. S. 272, 15 Sup. Ct. 389; Bergemann v. Backer, 157 U. S. 655, 15 Sup. Ct. 727. Second. When a state court and a court of the United States may each take jurisdiction of a matter, the tribunal where jurisdiction first attaches holds it, to the exclusion of the other, until its duty is fully performed and the jurisdiction involved is exhausted; and this rule applies alike in both civil and criminal cases. Freeman v. Howe, 24 How. 450; Buck v. Colbath, 3 Wall. 334; Taylor v. Taintor, 16 Wall. 366; Ex parte Crouch, 112 U. S. 178, 5 Sup. Ct. 96.

In the present case it is not contended that the state statute, under which the county court of Wythe county was proceeding, was repugnant to the constitution or any law of the United States, or that the state did not have jurisdiction of the offense charged and of the person of the accused.

But it is claimed, under the second of the above propositions, that as the circuit court of the United States had obtained prior and therefore exclusive jurisdiction of the affairs and assets of the Wytheville Banking & Insurance Company, a corporation of the state of Virginia, by virtue of two suits in equity brought in said court in October, 1893, by creditors of the said banking company, in which suits a receiver to take charge of the property of the bank, and a master to take all necessary accounts, had been appointed, it followed that the state court had no jurisdiction, pending those suits, to proceed by way of indictment and trial against an officer for the offense of embezzlement, as created and defined by a valid statute of the state of Virginia. For the state court to so proceed, it is claimed, constituted an interference with the federal court in the exercise of its jurisdiction; and that hence it was competent for the United States court to grant an injunction against the prosecution of the criminal case, and to release the prisoner by a writ of habeas corpus directed to the sheriff.

It is not denied, on behalf of the appellee, that by section 720 of the Revised Statutes it is enacted that the writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a state, except where such injunction may be authorized by any law relating to proceedings in bankruptcy. Nor do we understand that it is denied that, apart from the effect of section 720, the general rule, both in England and in this country, is that courts of equity have no jurisdiction, unless expressly granted by statute, over the prosecution, the punishment, or pardon of crimes and misdemeanors, or over the appointment and removal of public officers, and that to assume such a jurisdiction, or to sustain a bill in equity to restrain or relieve against proceedings for the punishment of offenses, or for the removal of public officers, is to invade the domain of the courts of common law, or of the executive and administrative department of the government. Ex parte Sawyer, 124 U. S. 200, 8 Sup. Ct. 482.

But, as respects section 720, it is argued that it must be read in connection with section 716, which provides that 'the supreme court and the circuit and district courts shall have power to issue writs of scire facias. They shall also have power to issue all writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions and agreeable to the usages and principles of law'; and the cases of French v. Hay, 22 Wall. 253, and Dietsch v. Huidekoper, 103 U. S. 494, are cited to the alleged effect that the prohibition in section 720 does not apply where the jurisdiction of a federal court has first attached.

The cited cases were of ancillary bills, and were in substance proceedings in the federal courts to enforce their own judgments by preventing the defeated parties from wresting replevied property from the plaintiffs in replevin, who by the final judgments were entitled to it.

As was said in Dietsch v. Huidekoper: 'A court of the United States is not prevented from enforcing its own judgments by the statute which forbids it to grant a writ of injunction to stay proceedings in a state court. Dietsch, the original plaintiff in the action on the replevin bond, represented the real parties in interest, and he was a party to the action of replevin, which had been pending and was finally determined in the United States circuit court. That court had jurisdiction of his person, and could enforce its judgment in the replevin suit against him, or those whom he represented. The bill in this case was filed for that purpose, and that only.'

Nor was there any attempt made in those cases to enjoin the state courts or any state officers engaged in the enforcement of any judgment or order of a state court.

It is further contended that when the parties sought to be enjoined have, as plaintiffs, submitted themselves to the court, by a bill in equity, as to the matter or right involved, a bill for an injunction will lie to prevent interference by criminal procedure in another court; and the decision of this court in Re Sawyer, 124 U. S. 200, 8 Sup. Ct. 482, is cited, where Mr. Justice Gray said: 'Modern decisions in England, by eminent equity judges, concur in holding that a court in chancery has no power to restrain criminal proceedings unless they are instituted by a party to a suit already pending before it, and to try the same right that is in issue there.' So, also, the case of Mayor, etc., v. Pilkington, 2 Atk. 302, is cited; and in that case, where plaintiffs in a chancery bill and cross bill to establish in equity their sole right of fishing in a certain stream, while their bill was still pending, caused the defendant to be indicted at the York criminal court for a breach of the peace for such fishing, Lord Hardwicke awarded an injunction to restrain the plaintiffs from all further criminal proceedings in other courts, and said that if a plaintiff filed a bill in equity against a defendant for a right to land and a right to quiet the possession thereof, and after that he had preferred an indictment against such defendant for a forcible entry into said land, the court of equity would certainly stop the indictment by an injunction.

But the observations quoted had reference to cases where the same rights were involved in the civil and criminal cases, and where the legal question involved was the same. Thus, the case of the fishery, both in the civil and the criminal proceeding, involved the right of the defendant to fish in certain waters where the plaintiffs claimed an exclusive right, and, as no actual breach of the peace was alleged, the public was not concerned. And when, in the later case of Lord Montague v. Dudman, 2 Ves. Sr. 396, where an injunction was prayed for to stay proceedings in a mandamus, his ruling in Mayor, etc., v. Pilkington was cited, Lord Hardwicke said: 'This court has no jurisdiction to grant an injunction to stay proceedings on a mandamus, nor to an indictment, nor to an information. As to Mayor, etc., v. Pilkington, the court granted an order to stay proceedings because the question of right was depending in the court, in order to determine the right, and therefore it was reasonable they should not proceed by action or indictment until it was determined.'

If any case could be supposed in which a court of equity might look behind the formal proceeding, in the name of the state, to see that its promoters are parties to the case pending in the court of equity, using the process of the criminal court, not to enforce the rights of the public, but to coerce the defendant to surrender in the civil case, it is sufficient to say that, in the present case, the indictment, whose prosecution the circuit court sought to stay, appears to have been regularly found, and to assert an offense against a law of the state, the validity of which is not assailed.

The fallacy in the argument of the appellee in the present case is in the assumption that the same right was involved in the criminal case in the state court and in the equity case pending in the federal court. But it is obvious that the civil liability of Wadley to indemnify the plaintiffs in the equity suits, by reason of losses occasioned by his misconduct as an officer of the bank, is another and very different question from his criminal liability to the commonwealth of Virginia for embezzlement of funds of the bank. There might well be different conclusions reached in the two courts. A jury in the criminal case might, properly enough, conclude that, however foolish and unjustificable the defendant's conduct may have been, he was not guilty of intentional wrong. The court, in the equity case, might rule that the defendant's disregard of the ordinary rules of good sense and management was so flagrant as to create a civil liability to those thereby injured, without viewing him as a criminal worthy of imprisonment. The verdict and judgment in the criminal case, whether for or against the accused, could not be pleaded as res adjudicata in the equity suits. Nor could the conclusion of the court in equity, as to the civil liability of Wadley, be pleadable either for or against him in the trial of the criminal case. Surely if, by reason of a compromise or of failure of proof, the court in equity made no decree against Wadley, the commonwealth of Virginia would not be thereby estopped from asserting his delinquencies under the criminal laws of the state. Nor would the court in equity be prevented, by a favorable verdict and judgment rendered in the state court, from adjudging a liability to persons injured by the defendant's official misbehavior.

And this reasoning is still more cogent where the respective courts belong one to the state and the other to the federal system.

Embezzlement by an officer of a bank organized under a state statute is not an offense which can be inquired into, or punished by, a federal court. Such an offense is against the authority and laws of the state. The judicial power granted to their courts by the constitution of the United States does not cover such a case. The circuit court of the United States for the Western district of Virginia could not, in the first instance, have taken jurisdiction of the offense charged in the indictment, nor can it, by a bill in equity, withdraw the case from the state court, or suspend or stay its proceedings.

In both of the injunctions pleaded in answer to the return of the sheriff the attorney of the commonwealth of Virginia for Wythe county was named as such, and was thereby prohibited from all further prosecution of the indictment pending in the county court of Wythe county in the name of the commonwealth of Virginia against H. G. Wadley, charged with embezzlement of the funds of the Wytheville Insurance & Banking Company.

No case can be found where an injunction against a state officer has been upheld where it was conceded that such officer was proceeding under a valid state statute. In the present case the commonwealth attorney, in the prosecution of an indictment found under a law admittedly valid, represented the state of Virginia, and the injunctions were therefore, in substance, injunctions against the state. In proceeding by indictment to enforce a criminal statute the state can only act by officers or attorneys, and to enjoin the latter is to enjoin the state. As was siad in Re Ayers, 123 U. S. 443, 497, 8 Sup. Ct. 164, 179: 'How else can the state be forbidden by judicial process to bring actions in its name, except by constraining the conduct of its officers, its attorneys, and its agents? And if all such officers, attorneys, and agents are personally subjected to the process of the court, so as to forbid their acting in its behalf, how can it be said that the state itself is not subjected to the jurisdiction of the court as an actual and real defendant?'

It is further contended, on behalf of the appellee, that even if the injunctions in the equity causes, restraining the proceedings in the county court, were erroneous, they could not be attacked collaterally by this appeal in the habeas corpus case. The obvious answer to this is that this court is dealing only with the question of the jurisdiction of the court below. To the return of the sheriff, justifying his detention of the prisoner by setting up the order of the county court, the petitioner, Wadley, by way of reply, pleaded the injunctions. This, of course, raised the question of the validity of those injunctions. If they were void, they conferred no jurisdiction upon the circuit court to enforce them as against the officers and process of the state court.

Again, it is urged that the indictment had been improperly found by reason of the admission before the grand jury of Wadley's deposition in the civil case. But, even if what passed in the grand jury room can be inquired into on a writ of habeas corpus, and this we do not concede,—the remedy for such misconduct must be sought in the court having control and jurisdiction over the proceedings.

So, too, any offense to the dignity or authority of the circuit court, by the misuse of its records or papers, by its suitors or their counsel, can be corrected by that court without extending its action so as to include the state court or its officers.

We are of opinion, then, that a court of equity, although having jurisdiction over person and property in a case pending before it, is not thereby vested with jurisdiction over crimes committed in dealing with such property by a party before the civil suit was brought, and cannot restrain by injunction proceedings regularly brought in a criminal court having jurisdiction of the crime and of the accused. Much more are we of opinion that a circuit court of the United States, sitting in equity in the administration of civil remedies, has no jurisdiction to stay by injunction proceedings pending in a state court in the name of a state to enforce the criminal laws of such state.

Therefore the judgment of the circuit court of the United States for the Western district of Virginia, discharging said H. G. Wadley from the custody of the said I. R. Harkrader, sheriff of Wythe county, Va., and from the custody of said county court of Wythe county, is hereby reversed, and the cause is remanded to that court, with directions to restore the custody of said H. G. Wadley to the sheriff of Wythe county, Va.