shall be allowed by the court." 26 Stat. at L. | established principle of jurisprudence, in all payment. But it provided for its ascertain- | to review a judgment convicting Charles Smith ment and adjudication by judicial proceedings, of the murder of John Welch. Reversed, and and for the allowance, by the judgment in case remanded with directions for a new trial. those proceedings, of a reasonable compensa 851-854. The contract now sued on begins in the form of a power of attorney, appearing on its face to have been intended to be signed by several persons, constituting and appointing Ball their attorney "to receive, and to make, sign, and give all necessary acquittances and receipts for, one half of all money which may be received by him, as our attorney at law, for prosecuting claims against the United States government" on account of Indian depreda82]tions; and the instrument ends with *this clause: "Said one half being the amount agreed by us to pay him of all that he may recover of said government for said depredations." It is signed by Halsell only. The instrument was a unilateral contract, not signed by the attorney, nor containing any agreement on his part, and so long at least as it had not been carried into execution might be revoked by the principal, or might be disregarded by him in mak making a settlement with the United States, or might be treated by him as absolutely null and void in any contest between him and the attorney. Kendall v. United States, 74 U. S. 7 7 Wall. 113 [14 [19: 85]; Spofford v. Kirk, 97 U. S. 484 [24: 1032]; Bailey v. United States, 109 U. S. 432, 439 [27: 988, 9901; Missouri v. Walker, 125 U. S. 339 [31: 769]. By the very terms of the contract the attorney was to be paid only out of money recovered and received by him from the United States. Although he prosecuted the claim before the Department of the Interior, and that department recommended payment of a certain sum upon the claim, yet before that sum had been paid, or Congress had made any appropriation for its payment, and, therefore, before he had either recovered or received any money from the United States, or was entitled to any compensation by the terms of the contract now sued on, Congress passed the act of March 3, 1891, chap. 358. By this act, as already stated, Congress, while giving to the court of claims jurisdiction and authority to inquire into and finally adjudicate certain claims arising from Indian depredations, including such as had been examined and allowed by the Department of the Interior, not only declared void all sales, transfers, or assignments of such claims, theretofore or thereafter made, -except in the administration of the estates of deceased persons, - and all | contracts theretofore made for fees and allowances to claimant's attorneys, but expressly provided that all treasury warrants in payment of the judgments of the court should be made payable and be delivered only to the claimant, or to his heirs, executors, or administrators, except so much thereof as the court, at the time of rendering the judgment, and as part thereof, should allow to be paid directly to the claimant's attorney, not exceeding in any case 20 per cent of the amount recovered. 83] *In view of previous experience, this last provision was a wise, reasonable, and just provision for the protection of suitors; and it was clearly within the constitutional power of Congress. As was said by Chief Justice Taney, "It is an civilized nations, that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission; but it may, if it thinks proper, waive this privilege, and permit itself to be made a defendant in a suit by individuals, or by another state. And as this permission is altogether voluntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted, and may withdraw its consent whenever it may suppose that justice to the public requires it." Beers v. Arkansas, 61 U. S. 20 How. 527, 529 [15: 991,992]; Re Ayers, 123 U. S. 443, 505 [31: 216, 229]; Hans v. Louisiana, 134 U. S. 1, 17 [33: 842, 848]. Much reliance was placed by the plaintiff upon the recent decision of the supreme judicial court of Massachusetts in Davis v. Com. 164 Mass. 241 [30 L. R. A. 743], in which an agent whom the state of Massachusetts had employed to prosecute a claim of the state against the United States, and to whom the state had agreed to pay, in full compensation for his services, 2 per cent of the amount recovered, was held to be entitled to recover from the state the amount of the compensation so agreed upon; notwithstanding that Congress, in the act appropriating money to pay the claim of the state, had provided that no part of the money should be paid by the state to any attorney or agent under a previous contract between him and the representative of the state. But the case was treated by the court as not free from difficulty; and it differed in several respects from the case at bar. The original agreement between the agent and the state was expressly authorized by its legislature, and was therefore lawful and valid when made. That agreement, as construed by the court, did not necessarily require the agent's compensation to be paid out of money received from the United States. The act of Congress, as the court observed, "did not *undertake to declare [84 void any contracts theretofore made between the representative of the state and an agent or attorney." It did provide that no part of the money received from the United States should be paid by the state to its agent. The act was passed after the services in question had been substantially performed. The act itself fixed the fact and the amount of the liability of the United States; appropriated the money to pay it; and left nothing to be ascertained by subsequent judicial proceedings. But in the present case, as has been seen, the original agreement was contrary to the express terms of the act of Congress of 1853. That agreement cannot, as it appears to us, be construed as a promise of the principal to pay to the attorney any sum whatever, except out of money recovered and received by the attorney from the United States. The act of Congress of 1891 expressly declared void "all contracts heretofore made for fees and allowances to claimants' attorneys." This act was passed before the attorney had either recovered or received any money upon the principal's claim against the United States. The act did not recognize either the lawfulness or the amount of the claim, or make any appropriation for its tion to the attorney. The restriction of the compensation of attorneys to the amounts so allowed by the court was one of the terms and conditions upon which the United States consented to be sued. In the suit brought by Ball on behalf of Halsell against the United States under the act of 1891, the court of claims rendered judgment in favor of the executrix of Halsell against the United States for $17,720, a smaller amount than had been recommended by the Department of the Interior, and fixed the allowance to Ball at the sum of $1,500, between 8 and 9 per cent of the amount of the judgment. The Statement by Mr. Justice Gray: This was an indictment in the circuit court of the United States for the western district of Arkansas for the murder, at the Cherokee Nation in the Indian country, on September 27, 1894, of John Welch, a negro and not an Indian, by shooting him with a pistol. *At the trial the government introduced [86 evidence tending to show that Welch and the defendant, about noon, at a fair-ground in Muscogee, at a spot close by their respective tents, and near a merry-go-round, a dance hall, gambling places, refreshment booths, and other tents and buildings, and in the presence United States have paid this sum to Ball, and of a crowd of people, fell into dispute; that the rest of the judgment to Halsell's executrix. For the reasons above stated, Ball cannot 85] maintain this *action upon the contract between him and Halsell; and he does not sue, and could not recover, upon a quantum meruit. Marshall Baltimore & O. R. Co. 57 U. S. 16 How. 314, 337 [14: 953, 962]. Judgment affirmed. CHARLES SMITH, Plff in Err., v. UNITED STATES. (See S. C. Reporter's ed. 85-90.) Evidence in criminal case-erroneous instruc tion. 1. On a trial for murder, evidence that the deceased was a larger and more powerful man than the defendant, as well as evidence that the deceased had the general reputation of being a quarrelsome and dangerous person, is competent, -especially if there is evidence tending to show that his character in this respect was known to the defendant. 2. On a trial for murder, where several witnesses who testified that the deceased had the reputation of being a quarrelsome and dangerous character had been arrested for various offenses, and one of them convicted, while none of them had kepta gambling place, an instruction to the jury to cast aside as worthless matter such testimony if it comes from "keepers of dives and gambling houses and gambling hells and violators of law and prison convicts," with reiterated statements to the effect that men of pure character only are competent to know what character is, is error, and entitles defendant to a new trial, as the cred ibility of witnesses is a matter for the jury, and the instruction withdrew this matter from their consideration. [No. 608.] the defendant ran into his tent, and, finding one Scott Gentry inside, snatched Gentry's pistol from his belt, came out, and shot and killed Welch; and that Welch was unarmed at the time. The defendant admitted the killing, and contended that he did it in self-defense; and, being called as a witness in his own behalf, testified that he knew Welch, "was very nearly raised up with him," and they had "tussled together all the way up from boys;" that Welch was a bigger and much stronger man than himself; that he knew that Welch had a pistol the night before; and that, when he shot Welch, Welch was advancing, with his right hand at his hip pocket, towards the defendant, and threatening to kill him. five The defendant also called witnesses, who testified that the deceased had previously made threats defendant's life: and against the other witnesses, living at Muscogee, who testified that they had known Welch for years, and that he had the general reputation of being a man of quarrelsome and dangerous char acter. Each of these five witnesses was asked by the district attorney, on cross-examination, whether he had ever been arrested for anything. In answer to this question, one of them testified that he had been arrested, tried, and acquitted for murder, and had been arrested for gambling and discharged. A second witness testified that he had been arrested for "fighting and gambling" only. A third witness testified that he had once been arrested, three or four years before, and brought to Fort Smith, for selling whiskey; and, on reexamination, that the grand jury ignored the charge, and that he had never been convicted of anything. A fourth witness testified that he had been arrested for "fighting and whiskey," but for nothing else, and had twice "served a jail *sentence for whiskey." The [87 Argued and Submitted November 19, 1895. De fifth witness testified that he had never been cided March 2, 1896. I IN ERROR to the Circuit Court of the United States for the Western District of Arkansas NOTE. As to questions of law and fact for court and jury, see note to King v. Delaware Ins. Co. 8: 155. As to threats by the deceased in cases of homicide, when admissible in evidence,-see note to Wiggins v. Utah, 23: 941. arrested for anything; and there was no other evidence of the arrest or conviction of any of these witnesses, or that any of them had anything to do with keeping a gambling place. The court, in the charge to the jury, in structed them as to the evidence of the char. acter of the deceased as follows: "Now, what is reputation? It is the reflection of character. Character is the thing itself. It is that which a men makes day after day, and hour after hour, and year after year, by his bearing and conduct in the community where he lives. If that thing is reflected by the words spoken by men of credit, by men of standing, by men of pure character standing before you, that such reputation is so reflected as that you can believe it, of course it is entitled to consideration and to be taken in the case if it is applicable. But it is to come from men who are morally and mentally competent to know what it means. If a man is without character himself, if his action has been characterized by crime, if his conscience has been seared by criminal conduct, he is thus ren dered incompetent to know what character is. He has none himself, and he is incompetent to determine when other men have one. And above all is it necessary, important, and essential to the interests of public justice, that justice should not be defeated by men of that character scraped from the four corners of the earth. You are to see to it that it comes from a pure source; and then, again, you are to see to it that it is the reflection, not by keepers of dives and gambling hells, and violators of law, and prison convicts, but it is the reflection of honest and conscientious men, of men who possess character themselves; men of integrity; men whose judgments make up in your com munity your character that you prize so highly, because it is the opinion of honest, intelligent, judicious, and just men and women in your community. That is the source that character is to come from, and the only source from which you can derive it in a reliable way. If it does not come from that source, but comes from the source I have designated, cast it 88] aside as so much worthless *matter invoked wrongfully in cases of this character." To this instruction the defendant at the time excepted; and, after being convicted and sentenced for murder, sued out this writ of error. Messrs. Wm. M. Cravens and C. J. Frederick for plaintiff in error. Mr. Edward B. Whitney, Assistant Attorney General, for defendant in error. Mr. Justice Gray delivered the opinion of the court: The main question in controversy at the trial was whether the killing of Welch by the defendant was in self defense. Upon that question any evidence which, according to the common experience of makind, tended to show that the defendant had reasonable cause to apprehend great bodily harm from the conduct of the deceased towards him just before the killing was admissible; and upon principle, and by the weight of authority, evidence that the deceased was a larger and more powerful man than the defendant, as well as evidence that the deceased had the general reputation of being a quarrelsome and dangerous person, was competent, especially if his character in this respect was known to the defendant, which there was evidence in this case tending to show. Wiggins v. Utah, 93 U. S. 465 [23: 941]; Allison v. United States, 160 U.S. 203, 215 [ante, 395, 400]; State v. Benham, 23 Iowa, 154, 92 Am. Dec. 416; Com. v. Barnacle, 134 Mass. 215, 45 Am. Rep. 819; Hurd v. People, 25 Mich. 405; State v. Bryant, 55 Mo. 75; Marts v. State, 26 Ohio St. 162; State v. Nett, 50 Wis. 524; State v. Turpin, 77 N. C. 473, 24 Am. Rep. 455; Whart. Hom. (2d ed.) §§ 606-623, and cases cited. In Wiggins v. Utah, above referred to, evidence that "the deceased's general character was bad, and that he was a dangerous, violent, vindictive, and brutal man" was admitted at the trial, and was assumed to be competent, both in the opinion of this court delivered by *Mr. Justice [89 Miller, and in the dissenting opinion of Mr. Justice Clifford. 93 U. S. 466, 470, 474 [93: 942-944]. The testimony introduced by the defendant to the character of the deceased was therefore competent and material. All that was shown, by way of impeaching the credibility of any of the five witnesses who testified to this point, was that one of them had been arrested, tried, and acquitted for murder, and had been arrested for gambling, and discharged; another had been arrested for fighting and gambling; another arrested for fighting and selling whiskey; and another arrested, convicted, and imprisoned for selling whiskey. There was no evidence that any of the witnesses, except this one, had been convicted of any offense whatever, or that any one of the five had anything to do with keeping a gambling place. Yet the court, in instructing the jury as to the weight to be given to the evidence of the character of the deceased, told them that reputation was the reflection of character, and, in order to be entitled to consideration, must "come from a pure source," and be "the reflection of honest and conscientious men, of men who possess character themselves, men of integrity, men whose judgments make up in your community your character that you prize so highly, because it is the opinion of honest, intelligent, judicious, and just men and women in your community;" and that "if a man is without character himself, if his action has been characterized by crime, if his conscience has been seared by criminal conduct, he is thus rendered incompetent to know what character is; he has none himself, and he is incompetent to determine when other men have one;" and charged the jury "to see to it that it is the reflection, not by keepers of dives and gambling bells, and violators of law. and prison convicts," and, if it comes from that source, to "cast it aside as so much worthless matter invoked wrongfully in cases of this character." This heaping up of injurious epithets upon the witnesses, coupled with the injunction (which could have no application to anything before the court except their testimony) to "cast it aside as so much worthless matter invoked wrongfully," could not have been understood by the jury otherwise than as *a com-[90 mand to disregard all the testimony introduced in behalf of the defendant, bearing upon the character of the deceased as a quarrelsome and dangerous man. The character of a quarrelsome and dangerous man is not always so well known to peaceable and law-abiding citizens that their testimony upon the subject can be had. In this, as in other matters involved in the administration of the criminal law, it is often necessary to resort to those who are more familiar with the persons between whom, and the places in which, quarrels and affrays are apt to take place. No doubt has been suggested as to the competency of any of the witnesses in question; and their credibility was a matter to be determined by the jury. The judge having in effect peremptorily withdrawn this matter from their consideration, the defendant is entitled to a new trial. Hicks v. United States, 150 U. S. 442 [37: 1137]; Starr v. United States, 153 U. S. 614 [38: 841]; Allison v. United States, 160 U. S. 203 [ante, 395]. It is, to say the least, doubtful whether evidence of an arrest only, not followed by a conviction, is competent to affect the credibility of a witness. Ryan v. People, 79 N. Y. 593; Van Bokkelen v. Berdell, 130 N. Y. 141. But such evidence having been admitted without objection as to these witnesses, and having been previously introduced by the defendant's counsel in cross-examining the witnesses for the government, the expression of a decisive opinion upon it would be out of place. It becomes unnecessary to consider the other exceptions to the rulings and instructions of the court. Judgment reversed, and case remanded, with directions to set aside the verdict and to order a new trial. James Callaghan, against the Union Pacific Railway Company for damages for injuries received by him through the negligence of defendant. There was a motion to dismiss or affirm. Affirmed. See same case below, 56 Fed. Rep. 988. Statement by Mr. Chief Justice Fuller: This was an action brought by James Callaghan against the Union Pacific Railway Company, in the circuit court of the United States for the district of Colorado, to recover damages for injuries received by him through the alleged negligence of defendant. The evidence tended to establish these facts: On August 18, 1890, a repair train operated by defendant, consisting of five flat cars, loaded with timber to be used in repairing bridges, three box cars, and a caboose, in runn running from Trinidad to Trinchera, went through a defective bridge, and Callaghan, who was riding on the train, was injured. Heavy storms had prevailed during the preceding week, causing extensive washouts and damages to the roadbed and bridges, so that none but repair trains had passed over the line between Trinidad and Trinchera for three days. Callaghan was a section foreman on a branch railroad from Trinidad to Sopris, and some time on August 17 he received orders from the superintendent of the railway company to take 91] UNION PACIFIC RAILWAY COM- all the men in his section and assist in repairing PANY, Piff. in Err., 0. the line between Trinidad and Trinchera, and accordingly went to Trinidad, where he was ANNA CALLAGHAN, Administratrix, etc. joined by some other section foremen with their (See S. C. Reporter's ed. 91-95.) crews, all being under one De Remer, a contractor *in the employment of the compa- [92 ny, who had been called in to assist in repairing Dismissal of writ of error-exception, when the road, but who had no control over the manwaived-general exception. agement of the train, which was in charge of a conductor, with an engineer and fireman. The train left Trinidad about 5 P. M., Sunday, the 17th, pursuant to orders received from the superintendent, then at Trinchera, and who had that day examined the bridge, which subsequently fell, but, so far as appeared, gave no directions or warning to De Remer, or the trainmen, in respect of its condition. The train proceeded slowly during the night, De Remer and a track walker going in front with a lantern, and before morning they found one bridge washed out and another rendered dangerous by floods, and repaired them. The bridge where the accident occurred was about mile north of Trinchera and 3 miles south of Adair, another station on the road. The approaches at each end of it had been washed Submitted January 22, 1896. Decided March away for over 15 or 20 feet, so that it was un2, 1896. As to exception, when must be taken, to be available on review, see note to Phelps v. Mayer, 14: 643. As to what questions the United States Supreme safe. The foreman of that section discovered its condition on the 17th, and caused the usual danger signal, a red flag, to be placed along the road between the rails at about 700 feet north of the bridge, and its condition was known to the road master as well as to the superintendent before the train left Trinidad. When the train reached Adair it was running about 15 miles an hour. The section foreman was there and signaled the train to stop for the purpose of telling them about the bridge, and if it had stopped, would have done so. The stop, and had slowed up to about 4 miles an Court will review on writ of error; bill of exceptions, engineer saw his signal and commenced to -see note to Parks v. Turner, 13: 883, hour, when the conductor signaled him to go ahead. The train then went on without giving the section foreman any opportunity to give information concerning the danger. The bridge could be seen for about 900 feet north on the road, but the engineer apparently neither saw its condition nor the red flag, but drove his train upon it, and the car upon which Cal laban was riding went through. At the conclusion of defendant's evidence, except reading the rules, defendant asked the 93] court to instruct the jury that there was no evidence sufficient to warrant a verdict for plaintiff, which request was denied, and de fendant excepted. Defendant then introduced in evidence the company's rule 227, which read as follows: "In case of an extraordinary rain storm or bigh water, trains must be brought to a stop, and a man sent out to examine bridges, trestles, culverts, and other points liable to damage, before passing over. Conductors will make careful inquiry at all stopping places, and, when thought advisable, make extra stops to ascertain the extent and severity of storms. taking no risk. In case of doubt as to the safety of proceeding, they will place their trains upon a siding, and remain there until certain it is safe to proceed." Thereupon plaintiff offered and introduced evidence to show that there was a conductor on the train. Defendant then asked the court to give to the jury the following instructions: "1. The court is asked to instruct the jury that, under the evidence in this case, the ac cident appears to have been caused by the failure of the engineer of the work train to observe the rules and regulations of the company in respect to running trains in cases of extraordinary floods, etc., and in his failure to observe the danger signal that, according to the evidence, had been placed in places where he ought to have seen the same in the exercise of the care that was required of him in respect thereto. "2. The court is asked to instruct the jury that they are not at liberty to infer from the evidence in the case that the accident was caused by the negligence of the conductor in signaling the engineer to proceed after the train had slowed down, since such signal to the engineer in no wise released the engineer from care in respect to observance of all precautions necessary to prevent an accident under the circumstances, the evidence showing that the engineer must have been aware of the likelihood of danger at any place along the line. "3. The court is asked to instruct the jury that the mere fact that the accident would not proba bly have happened if the conductor had allowed the train to be brought to a stop at Adair affords no ground for saying that not stopping the 94] *train at Adair was the cause of the accident, since it is true that if the train had not started from Trinidad or Adair or run at all the accident would not have happened, and the mere fact of starting the train, or continuing the train in motion after it had started, does not make the running of the train under those circumstances the proximate cause of the accident by which the plaintiff was injured. "4. The court is asked to instruct the jury that the jury are not at liberty to infer, or even from the mere fact that the conductor gave signal to proceed after the engineer had slowed up at Adair was the proximate cause of the injury to the plaintiff, since such signal to proceed can be held to proceed in precisely the same manner as the engineer was bound to proceed under the rules and regulations of the company under which he was acting, and in view of what the engineer knew of the dangers he was bound to apprehend from the floods, etc., that had existed for some days prior to the accident; and that even if the jury believe from the evidence it was negligent in the conductor to proceed after he had slowed down, yet the plaintiff will not be entitled to recover because of such negligence of the conductor unless they further believe from the evidence that such negligence was the proximate cause of the injury." The record then states: "But the court refused to give each and every of said instructions; to which ruling of the court the defendant, by his counsel, then and there duly excepted." The court thereupon charged the jury at large upon the whole case. No exception was taken to any part of the charge. The jury found for plaintiff, judgment was entered on the verdict, the cause taken on error to the circuit court of appeals for the eight circuit, and the judgment affirmed. 56 Fed. Rep. 988. This writ of error was then allowed and a supersedeas bond given and approved, in which no penal sum was named. A motion to dismiss or affirm was submitted. Callaghan subsequently died and the cause was revived in the name of Anna Callaghan, administratrix, etc. Messrs. John F. Dillon and John M. Thurston for plaintiff in error, in opposition to motion. Messrs. C. S. Thomas and W. H. Bryant for defendant in error, in favor of the motion. Mr. Chief Justice Fuller delivered the opinion of the court: We should not dismiss this writ of error on account of the defective character of the bond, but allow a proper bond to be filed, if necessary, which in this instance it is not, as the motion to affirm must be sustained. It is settled that an exception to the refusal of the trial court to instruct the jury to find for the defendant is waived if made by defendant without resting his case. The question goes to the sufficiency of the evidence, and that is, of course, of the entire evidence. Columbia & P. S. R. Co. v. Hawthorne, 144 U. S. 202, 206 [36: 405, 406]. After defendant's motion for an instruction in its favor was denied, it put in evidence its rule 227, which manifestly might have had an important bearing. The motion was not renewed, and we think the action of the court cannot be assigned for error. Again, it is firmly established that where propositions submitted to a jury are excepted to, in mass, the exception will be overruled provided that any of the propositions be correct, and where a general exception is taken to the refusal of a series of instructions, it will not be considered if any one of the propositions is unsound. Newport News & M. V. Co. v. Pace, 158 U. S. 36 [39: 887]. It was contended by defendant that the accident was the |