Dalzell vs. Lewis.

the sum of $3,000, which he would give to the agent to stop further inquiries. Several interviews were subsequently had, in which the representations were repeated. He dwelt largely on the disgrace which such a prosecution would bring on both families; further offered to assist them in obtaining the money through a bank in the town of Washington. On May 15, following, Beabout and McCullough went to Washington, met Blachley, got the money from the bank and paid it over to him. He told them the agent of the society had not yet arrived but when he came, he, Biachley, would pay the money to him and take his receipts. Afterwards, he advised them frequently to keep quiet concerning the matter; to tell no one; not employ counsel or advise with others, or trouble might result.” The statements of Blachley were false. There never was any threatcning prosecution. The whole thing was a fraud on his part. It will be observed, too, that Blachley was the family physician of the plaintiff, and that it was while acting in the capacity of family physician that he discovered the situation which enabled him to perpetrate the fraud.

Mr. Justice Mitchell in the review of this same case in 198 Pa., 173, in holding that the statute of limitations began to run from the completion of the fraud, after an exhausted review of all the authorities, says: "The cases which hold that where fraud is concealed or as sometimes added, conceals itself, the statute runs only from discovery, practically repeal the statute pro tanto. Fraud is always concealed. If it was not, no fraud would ever succeed. But when it is accomplished and ended, the rights of the parties are fixed. The right of action is complete. If plaintiff bestirs himself to inquire, he has ample time to investigate and bring his action. If both parties rest on their oars, the statute runs its regular course. But if the wrongdoer adds to his original fraud, affirmative efforts to divert or mislead or prevent discovery, then he gives to his original act a continuing character by virtue of which he deprives it of the protection of the statute until discovery."

And I can finish the quotation from the opinion of Justice Mitchell, applying it particularly to this case: "Tried by this test the present action must fail."

Note: The decision in above case was affirmed at No. 245 October Term, 1915, Supreme Court of Pennsylvania.

EDITOR.

U. S. of A. ex rel Salak vs. Keeper of Juvenile Court Detention Rooms.

Juvenile Court - Detention for Mental Examination

Habeas Corpus
Jurisdiction-Demurrer.

Federal judges are vested with power to grant writs of habeas corpus for the purpose of inquiring into cause of restraint of liberty. The writ does not extend to a prisoner in jail except in certain cases, one of which is "Where he is in custody in violation of the Constitution or of a law or treaty of the United States."

The jurisdiction of the Juvenile Court of Pennsylvania is purely statutory, and hence the statute must be followed in strictness if the proceeding in any given case when contested, is to be sustained.

Where a girl 16 years old was found not to be incorrigible or guilty of having violated any law of the Commonwealth, or of the ordinance of any city, borough or township, but the Juvenile Court ordered, "That the said child be detained in detention rooms for mental examination," the District Court of the United States will sustain a demurrer to such an order and release the child as it is not within the jurisdiction of the Juvenile Court to make such an order.

Habeas Corpus. No. 2 May Term, 1916. D. C. for Western District of Pennsylvania.

Eckles & Conrad, for relator.

Patterson, Miller, Crawford & Arensberg, for Juvenile Court.
J. M. Stoner & Sons, for respondent.

FACTS.

Mrs. Steve Pusick, of McKees Rocks, Allegheny County, Pennsylvania, petitioned the Juvenile Court of Allegheny County to take into custody her fourteen-year-old daughter, Carrie Pusick, on a charge of incorrigibility. A summons was issued to Annie Salak to produce Carrie Pusick in Juvenile Court. Annie Salak appeared February 28, 1916, but did not produce Carrie Pusick, and counsel stated that there was no jurisdiction in the Juvenile Court to compel the production of a child by summons and suggested that the only method of producing Carrie Pusick in Court was to have her arrested on a charge. On the same day, on the charge of incorrigibility, the court ordered the arrest of Carrie Pusick, and directed a hearing on March 2, 1916, and, in the meantime, for reasons not connected with the case, the Court, by Miller, J., made an order allowing the minor her freedom under bail, for hearing on March 2, 1916, which was postponed until March 6, 1916, and the order admitting to bail vacated (and Carrie Pusick ordered arrested). She was arrested on March 6, 1916, and appeared for a hearing.

Miss Carter, Juvenile Court Officer, testified that the Salak home was a place where the girl should not be. Counsel for the child's sister, in whose custody she was found, protested that there was no question about the custody of the girl until she had refused to testify in an equity proceeding brought by her father to recover possession of property, which the father claimed, and was standing in the name of Anna Salak. It was stated the daughter refused to testify to certain things in behalf of her father, and ran to the home of her sister, Anna Salak, to which place, the sister stated, the girl had come with a cut upon her head. Counsel for the minor charged that the mother had inflicted bodily harm on other children and the daughter stated that when her mother "takes a fit she always beats me."

The child testified, when asked where she slept, that she occupied a bed with a nineteen-months-old boy in a room where also slept her brotherin-law and sister.

U. S. of A. ex rel. Salak vs. Keeper of Juvenile Court Detention Rooms.

The Court inquired of the child whether she thought it was proper for her to sleep in the same room with the brother-in-law and she replied that her sister intended taking four rooms and would give her one of her own. Miss Carter, the Juvenile Court Officer, testified that, from general opinion, the Salak home was not a fit place for the girl because "people in McKees Rocks, who seem to know, say the girl should not be there. I asked them why, but they refused to say definitely why she should not be there. The mother and father, outside of the fact that the mother has. a very violent temper, and she sometimes gives away to it, the home is neat and clean. I have known this family for ten years and have never heard anything against the father and mother."

Miss Carter was then asked for a recommendation and advised the Court that the child should be held in the detention rooms until "Dr. McCready sees her. From certain habits of the girl, observed here, I think she should be examined by Dr. McCready." The Court then said, "unless she is mentally deficient and she is in fear of the mother, if the mother treats her as she says she does, I think she ought to go to another home altogether," and asked counsel for the girl to help the Court in the case.

Counsel replied that he desired to help the Court, but contended that there was no reason why the child should be before the Juvenile Court and asked upon what grounds she was being taken. The Court replied, "because her home surroundings, where she is now, are not a fit place for the girl, and, according to her own story, and according to what you say, the mother abuses the little girl, and she does not want to go there." Counsel contended there was still no reason why the child should be placed in the hands of a third party or submit to a medical examination, but Miss Carter, the Juvenile Court Officer, stated she was being held for mental examination, and after some argument the Court decided to hold the girl for mental examination only, and added: "So far as I am concerned, I feel inclined to award her to the custody of a third party."

Upon the writ of habeas corpus being issued on March 7, 1916, and hearing fixed for March 9, 1916, it was stipulated by the attorneys for the writ and counsel for the respondent, that Judge Kennedy had found and decided that Carrie Pusick, the subject of the writ, was not incorrigible as charged in the petition made against her in the Juvenile Court.

THOMSON, J., March 10, 1916.-This is a petition for a writ of habeas corpus at the relation of Anna Salak.

The petitioner sets forth that she is a sister of one Carrie Pusick, a minor of the age of 14 years.

That under the precept issued by the Juvenile Court of Allegheny County, the said Carrie Pusick was arrested on a charge of incorrigibility, and gave bail for her appearance before said Juvenile Court on the second day of March, 1916, at which time the hearing was continued until March 6, 1916.

That on said last named day, said Court issued its precept and arrested the said Carrie Pusick, and the formality of a hearing was had before the Honorable Richard A. Kennedy, one of the Judges of said Court.

That the said Carrie Pusick was not given the opportunity of being heard by her witnesses, nor were there any witnesses sworn against her, but hearsay testimony was given by one Mrs. Carter, a Juvenile Probation Officer, and wherein it appears that the said Carrie Pusick was not incorrigible, but had left her home for the reason that she was ill-treated by her mother, at whose instance the precept of the Juvenile Court had issued. That the said Carrie Pusick was not confronted by her accusers, but

U. S. of A. ex rel. Salak vs. Keeper of Juvenile Court Detention Rooms. by the said Probation Officer, who was not under oath when she testified against her.

That thereupon the said Judge Kennedy stated that he would not find her guilty of incorrigibility and would not order her return to her mother's home, but that he would detain her until Thursday, March 9, 1916, for the purpose of having her examined mentally at the request of the said Probation Officer, and so he entered his judgment.

That there is no charge of lunacy, idiocy or other mental delinquency against the said Carrie Pusick, nor can there be, for she is of sound mind, memory and discretion, yet nevertheless, the said Juvenile Detention Officer has her now in custody without any due process of law.

The said petition avers that the said Carrie Pusick is not being detained for any criminal or supposed criminal matter, but forcibly and against her will she is kept contrary to law, and in violation of her rights under the Constitution of the United States.

The Court granted the writ prayed for, and on March 8, 1916, at the time fixed for the return and hearing, Emily Alice Keating, Keeper of the Detention Rooms of the said Juvenile Court, made return as follows: "That she produces in Court the body of Carrie Pusick, for whom the said writ of habeas corpus issued.

That respondent holds the said child under custody by virtue of an order of the Juvenile Court of Allegheny County, made by Judge Richard A. Kennedy on March 6, 1916: That the said child be detained in Detention Rooms for mental examination. Kennedy, J.,' to which order, petition, testimony and other proceedings in said Juvenile Court in said matter, this respondent begs to make reference as fully as though same were incorporated herein.

This respondent submits the custody of said child and the duty of this respondent under said order, as your Honorable Court may, after hearing, determine."

The return was demurred to, the reasons assigned being:

First. The order of commitment set forth in the return is insufficient in law to warrant the further detention of this child, Carrie Pusick.

Second. That the record in this case does not show any legal grounds for making the order set forth in the return and by virtue of which respondent claims the lawful custody of Carrie Pusick.

Third. There is no charge of idiocy, lunacy or mental delinquency in the record.

Fourth. That there is no law of the State of Pennsylvania, nor of the United States, which warrants or authorizes any Court to detain any person for the purpose of making a mental examination.

Fifth. That the order of commitment returned by respondent is defective in that it is indeterminate and no date is fixed when the said sentence or commitment shall expire.

The demurrer to the return, admits the facts stated in the return to be true, and if upon those facts the prisoner is not entitled to be discharged, she must be remanded.

The return shows the cause of detention to be an order of the Juvenile Court "That the said child be detained in detention rooms for mental examination."

Reference is made in the return to the order, petition, testimony and other proceedings in the Juvenile Court in said matter, as fully as if incor porated therein, and it was agreed in open Court that such proceedings should be treated as a part of the return.

Turning to the proceedings we find that they are based on the petition of Mary Pusick, the mother of Carrie Pusick, alleging that the child is

U. S. of A. ex rel. Salak vs. Keeper of Juvenile Court Detention Rooms. incorrigible and is beyond the control of her parents. That she has run away from home and has gone to stay with a married sister, Anna Sąlak, whose home is not a proper place for the girl; that she refuses to return home, and prays that a summons be issued for the said Anna Salak to appear with said child in Court on February 21, 1916, with the prayer that the Court inquire into the facts of said case and of the truth of the matters averred in pursuance of the statute in such case provided, and for such order in the premises as to the Court may seem meet.

The summons was accordingly issued to Anna Salak to appear in Court with the child at the time fixed, and a precept was issued by the Court for the arrest of Carrie Pusick to answer the charge of being an incorrigible.

On March 6, 1916, the day to which the hearing was adjourned, the parties appeared before Judge Kennedy. No witnesses were sworn or examined on either side. The statement being made by Miss Carter, a Probation Officer, to the effect that from general opinion, the home of Anna Salak was not a fit place for the girl; that aside from the fact that the mother of the child has a very violent temper and that she sometimes gives way to it, she knew nothing against the father and mother.

Upon inquiry from the Judge as to what the Probation Officer would recommend, Miss Carter replied: "For the present I would recommend that the child be held in the rooms of detention until Dr. McCready sees her. From certain habits of the girl observed here, I think she should be examined by Dr. McCready."

Counsel for the girl protested against her detention for examination, when Miss Carter stated: "She is being held here for the medical examination for good reasons."

Further protests being made by her counsel against the detention, Judge Kennedy said: "We are going to hold the girl here for mental examination only, and so far as I am concerned, I feel inclined to award her to the custody of a third party." And against the protest of counsel in the girl's behalf, she was so held.

It was agreed in open Court, during the hearing on this writ, that Judge Kennedy had found that the girl was not incorrigible, a stipulation being filed of record by counsel setting forth that fact.

Under this state of facts what are the rights of the party detained and what the duty of the Court?

Where reasonable cause is shown the writ of habeas corpus issues as of right.

By Section 752 of the Revised Statutes, the Federal Judges are vested with power to grant writs of habeas corpus for the purpose of inquiring into the cause of restraint of liberty. The writ does not extend to a prisoner in jail except in certain cases, one of which is: "Where he is in custody in violation of the Constitution or of a law or treaty of the United States."

The Supreme Court in re Neagle, 135 U. S., 41, after quoting the above provision, adds: "This, of course, means that if he is held in custody in violation of the Constitution or a law of the United States, he must be discharged."

Has the petitioner been accorded that due process of law guaranteed her by the Constitution in the proceedings under which she is imprisoned? It was said in Simons vs. Craft, 182 U. S., 427: "The due process clause of the Fourteenth Amendment does not necessitate that the proceeding in the State Court should be by a particular mode, but only that there shall be a regular course of proceedings in which notice is given of the claim asserted and an opportunity afforded to defend against it."