sion of the bank, “with all and singular its rights, credits, effects, trusts, anu duties," and setting up s own subsequent appointment. With the exception of the admissions, the answer amounted to a general denial, there being a special denial of the receipt or collection by the bank or the receiver of the note mentioned in the first count. "22. The court erred in rendering judgment against the plaintiff for costs. "23. The court erred in holding that money collected by the Capital National Bank was a trust fund in the hands of the receiver for the benefit of the defendant in error. "24. The court erred in rendering judg. ment against the plaintiff in error for the full amount of the notes collected by the Capital National Bank. "25. The court erred in rendering a judg ment which had the effect of making the defendant in error a preferred creditor over the other creditors of the Capital National Bank. "26. The court erred in ordering that the amount of the judgment should be paid out of any money then in the hands or that might thereafter come into the hands of the plaintiff in error. "27. The court erred in rendering a judg ment which would become a lien upon all the assets of the Capital National Bank." The cause came on for hearing, and, after the default of the bank was taken and entered, was tried by the court, which made certain findings of fact, and entered the following judgment: "It is therefore considered, ordered, adjudged, and decreed by the court that the said plaintiff, the First National Bank of Cadiz, Ohio, do have and recover of and from the said defendant, the Capital National Bank of Lincoln, Nebraska, the amount of the trust fund hereinbefore found to belong to plaintiff, to wit, eight thousand and fifty ($8,050) dollars, with interest thereon, at the rate of seven per cent per annum from January 20, 1893, principal and interest amounting to the sum of eight thousand The supreme court affirmed the judgment and seven hundred and twenty-two and .95 of the district court, and, its judgment hav($8,722.95) dollars at the date of this de- ing been entered, the receiver applied for a cree. And it is further ordered, adjudged, rehearing, assigning five reasons therefor, of and decreed by the court that the said defend- which the fifth was as follows: "Because ant, Kent K. Hayden, receiver of the said said judgment and decree of said district defendant, the Capital National Bank, be, court so affirmed by said judgment and deand he is hereby, ordered to pay the plain- cree of this court adjudged the amount found tiff the amount of said trust fund in his due the plaintiff therein to be a lien upon [430] hands, as hereinbefore found, to wit, the sum the property and assets now in the possession of eight thousand and fifty dollars, together of the appellant or which shall hereafter with seven per cent interest thereon from come into his possession, and to be paid out January 20, 1893, as damages for the deten- of the proceeds thereof in preference and prition thereof, the said principal and interest ority to other creditors of said bank, and is in at the date of this decree amounting to the violation of the provisions of the 'national sum of eight thousand seven hundred twenty-bank act' of the United States under whose two and .95 ($8,722.95) dollars, out of any authority this appellant was appointed and money now in his hands or that may come is acting." into his hands as such receiver; that when said money or any part of it is paid under this order, the same shall apply on the above judgment against said defendant bank; that the said defendant bank and said defendant, Hayden, pay the costs of this action, taxed at $50.03." Thereupon the defendant bank, "by Kent K. Hayden, its receiver," moved for a new trial on these grounds: "1. The judgment is not sustained by sufficient evidence. 2. [429]The judgment is contrary to law. 3. Errors of law occurring at the trial duly excepted to. 4. There is error in the assessment of the amount of recovery in this, that the judg ment allows the plaintiff interest on his claim from and after the failure of the Capital National Bank." The motion was overruled, a bill of exceptions duly taken, and the cause carried to the supreme court of Nebraska on error. The application to that court for the writ of error assigned twenty-seven errors. Some of these asserted that certain enumerated findings of fact were not "sustained by the law;" and the 21st, 22d, 23d, 24th, 25th, 26th, and 27th were: "21. The court erred in rendering judgment against the plaintiff in error for interest upon the amounts collected by the plaintiff in error for the defendant in error. The petition for rehearing was denied, and thereafter this writ of error was allowed. After the case had been docketed, the death of Hayden was suggested, and the appearance of John W. McDonald, appointed his successor as receiver, was entered. Messrs. A. E. Harvey, John H. Ames, and Amasa Cobb for plaintiffs in error. Messrs. Newton C. Abbott and Arthur W. Lane for defendant in error. *Mr. Chief Justice Fuller delivered the[430] opinion of the court: The writ of error from this court to revise the judgment of a state court can only be maintained when within the purview of section 709 of the Revised Statutes. If the denial by the state court of a right under a statute of the United States is relied on as justifying our interposition, before it can be held that the state court thus disposed of a Federal question, the record must show, either by the words used or by clear and necessary intendment therefrom, that the right was specifically claimed; or a definite issue as to the possession of the right must be distinctly deducible from the record, without an adverse decision of which the judgment could not have been rendered. Moreover, even though a Federal question The record discloses no Federal question asserted in terms save in the application to the supreme court for a rehearing, when the suggestion came too late. The petition did, indeed, allege that the Capital National Bank was organized under the banking act, and that a receiver was appointed, who took possession of the bank's assets and of all trusts and moneys held by it in a fiduciary capacity, and the answer admitted these averments, respecting which there was no controversy, yet no right to appropriate trust funds was claimed by defendant under any law of the United States, nor was it asserted that any judgment which might be rendered for plaintiff would be in contravention of any provision of the bank ing act. The motion for new trial pursued a common formula, and one of the grounds assigned was that the judgment was "contrary to law," but this cannot be construed as having a single meaning, and distinctly referring to the denial of a right claimed under an act of Congress, consistently with the require ments of section 709 of the Revised Statutes as expounded by numerous decisions of this court. California Bank v. Kennedy, 167 U. S. 362 [42: 198], is not to the contrary, as counsel seem to suppose. There the question was whether a national bank could purchase or subscribe to the stock of another corporation, and the answer averred that if the stock in question appeared to have been issued to the national bank, it was "issued without authority of this corporation defendant, and without authority of law." The grounds presented on motion for new trial, and in the specifications of error which formed the basis of the appeal to the supreme court of the state, asserted the want of power under the laws of the United States; and the Califor nia supreme court said in its opinion that the bank appealed on the ground "that, by [432]virtue of the statutes under which it is or ganized, it had no power to become a stock holder in another corporation." The general rule was not questioned that if the alleged right was not claimed before judgment in the highest court of the state, it could not be as serted in this court. This rule was not complied with here, nor was any Federal question in terms decided, while, on the contrary, the judgment was explicitly rested on non-Federal grounds. The contention of plaintiff was that the Capital National Bank had money in its hands which belonged to plaintiff, did not belong to the bank, had never formed part of its assets, and was held by the bank in trust for plaintiff. The right to the money was considered by the trial court in the light of general equitable principles applicable on the facts, and the court adjudged that the money constituted a trust fund to which plaintiff was entitled. The decision did not purport to affect the assets of the bank, or attempt to direct the distribution thereof, or in any way to interfere with the disposition of assets actually belonging to the bank; nor did it affect the receiver as receiver; or his appointment or authority under the banking act. As the trial court found that certain moneys held by the bank in trust for plaintiff had come into the receiver's hands, he was directed to return them, for he had no stronger title to the trust fund as against the plaintiff than the bank had. When the case came to the supreme court, that court, finding no reversible error in the record, affirmed the judgment of the district court, and filed an opinion (49 Neb. 795) stating: "This case is of the same general nature as Capital Nat. Bank et al. v. Coldwater Nat. Bank, 49 Neb. 786. It was submitted upon the same argument, and, governed by the result reached in that case, this is affirmed." From the opinion in the case thus referred to, it appears that that case, now on our docket and numbered 73, was submitted to the supreme court of Nebraska with this case numbered 72, and with three others, also brought here, and numbered 74, 75, and 76, and that the five cases were disposed of by the opinion in No. 73. The supreme court there held that: "A fund which comes into the possession[433] of a bank with respect to which the bank had but a single duty to perform, and that is to deliver it to the party thereto entitled, is a trust fund, and is therefore incapable of being commingled with the general assets of such bank subsequently transferred to its receiver. "Under the circumstances above indicated, the receiver of the bank is merely substituted as trustee, and its funds in his hands should be devoted to discharging such trust before distribution thereof is made to the general creditors of the bank." "It Among other things, the court said: is conceded by the plaintiff in error that the conformity with the views expressed more or relief granted by the district court was in less directly by this court in Wilson v. Coburn, 35 Neb. 530; Anheuser-Busch Brewing Association v. Morris, 36 Neb. 31: Griffin v. Chase, 36 Neb. 328; and State v. State Bank of Wahoo, 42 Neb. 896, but it is urged that a re-examination of the principles involved should satisfy us that these cases proceeded upon an erroneous view of the law as now settled. A very careful examination has been made of all cases cited in respect to the pivotal question which has already been sufficiently indicated as having been acted upon by the district court." And after reviewing these cases the court announced that it was not convinced that it should recede from the line of its former decisions. We know of no provision of the banking act which assumes to appropriate trust funds in the possession of insolvent banks, or other property in their possession to which they have no title, and it is clear that the state courts had jurisdiction to determine whether this money was or was not a trust fund belonging to plaintiff. The receiver made no effort to remove the litigation to the circuit court, contested the issues on a general denial, and set up no claim of a right under Federal statutes withdrawing the case from the operation of general law. In these circumstances the result is that this court has no jurisdiction to revise the 134]judgment of the supreme court of *Nebraska, and we, necessarily, intimate no opinion in respect of the views on which the case was disposed of. HERMAN KECK, Plff. in Err., v. UNITED STATES. (See S. C. Reporter's ed. 434-465.) Insufficient indictment—tariff act of 1894attempts to smuggle, not "smuggling"word "smuggling" in U. S. Rev. Stat. § 2865. 1. 2. 3. 4. An indictment for unlawfully importing and bringing into a certain port of the United States diamonds of a stated value, "contrary to law,' with intent to defraud the United States, but not indicating what is relied on as violative of the law, is insufficient, although it charges the offense substantially in the words of U. S. Rev. Stat. § 3082. The word "diamonds," followed by a semicolon, at the head of ¶ 467 in the free list of the tariff act of 1894, does not put all diamonds on the free list; but that word is plainly designed as a heading, and the semicolon following it should be read as though a colon. The offense of smuggling or clandestine introduction of goods into the United States in violation of U. S. Rev. Stat. § 2865, does not include mere attempts to commit the same, and is not committed by the concealment of goods on a ship entering the waters of the United States, with intent to smuggle them, where the goods are not taken through the lines of customs authorities, but are delivered to the customs officer on board the vessel itself at the time when or before the obligation to make entry and pay the duties arises. The word "smuggling" used in U. S. Rev. Stat. 2865, is not extended beyond the common-law meaning by reason of the provision in the anti-moiety act of June 22, 1874, respecting the rewards of informers, that, for the purposes of that act, smuggling shall include attempts to bring dutiable articles into the United States without passing through the customs house or submitting them to the revenue officers. [No. 15.] Argued December 18, 1896. Ordered for reargument January 18, 1897. Reargued January 19, 20, 1898. Affirmed by divided court March 7, 1898. Rehearing granted March 21, 1898. Ordered for Reargument April 25, 1898. Reargued November 10, 1898. Decided January 9, 1899. IN ERROR to the District Court of the Pennsylvania to review a judgment of that court adjudging the defendant, Herman Keck, to be guilty of smuggling under the laws of the United States and sentencing him to pay to the United States a fine of $200 and that he be confined in the eastern penitentiary of the commonwealth of Pennsylvania for the period of one year. Judgment reversed, and case remanded, with directions to set aside the verdict and grant a new trial. The facts are stated in the opinion. Messrs. Francis Bacon James and Rankin Dilworth Jones, for plaintiff in error on first argument and on all reargu For the reasons given in the opinion in Capital National Bank v. First National | Bank of Cadiz, Ohio, just decided [ante, 502], the writs of error in these cases are severally ments: dismissed. Where a statute which provides for the punishment of a crime does not enumerate by implication to cases not falling within the facts constituting the crime, an indict- their terms. ment which follows the language of the statute, and does not allege the facts constituting the crime, is fatally defective, and a demurrer thereto should be sustained. United States v. Kee Ho, 33 Fed. Rep. 333; United States v. Claflin, 13 Blatchf. 178; United States v. Thomas, 4 Ben. 370, 2 Abb. (U. S.) 114; United States v. Cruikshank, 92 U. S. 542, 23 L. ed. 588; United States v. Mann, 95 Ú. S. 580, 24 L. ed. 531; United States v. Simmons, 96 U. S. 360, 24 L. ed. 819; United States v. Carll, 105 U. S. 611, 26 L. ed. 1135; United States v. Hess, 124 U. S. 483, 31 L. ed. 516; Pettibone v. United States, 148 U. S. 197, 37 L. ed. 419; Blitz v. United States, 153 U. S. 308, 38 L. ed. 725. Under the title of the "Free List" is found the following schedule, to wit: ¶ 467. Diamonds; miners', glaziers', and engravers' diamonds not set, and diamond dust or bort, and jewels to be used in the manufacture of watches or clocks." This specific provision takes diamonds out of the general class of precious stones, and makes them nondutiable. Authur v. Rheims, 96 U. S. 143, 24 L. ed. 813; Arthur v. Lahey, 96 U. S. 112, 24 L. ed. 766. It is a rule of interpretation that you are to ascertain, not what a legislative body meant, but what it meant by what it said. United States v. Schilling, 11 U. S. App. 603, 53 Fed. Rep. 81, 3 C. Č. A. 440. A court cannot inject into a statute a provision because it is the court's belief that such provision accords with the settled policy of Congress. Bate Refrigerating Co. v. Sulzberger, 157 U. S. 1, 39 L. ed. 601. Taxation can only be imposed by direct and positive provision of law, and not by implication, construction, or conjecture. Every doubt must be resolved in favor of the citizen. American Net & Twine Co. v. Worthington, 141 U. S. 468, 35 L. ed. 821; Henderson v. United States, 26 U. S. App. 538, 66 Fed. Rep. 53, 13 C. C. A. 328; Hartranft v. Wiegmann, 121 U. S. 609, 30 L. ed. 1012; United States v. Isham, 17 Wall. 496, 21 L. ed. 728; Powers v. Barncy, 5 Blatchf. 202; United States v. Wigglesworth, 2 Story, 369; Adams v. Bancroft, 3 Sumn. 384. The offense of smuggling is not complete unless some goods, wares, or merchandise are actually brought on shore, or carried from shore, contrary to law. Bacon's Abr. (5th ed.) 286; Dunbar v. United States, 156 U. S. 185, 39 L. ed. 390; People v. Murray, 14 Cal. 159; Mulligan v. People, 5 Park. Crim. Rep. 105; Seeberger v. Schweyer, 153 U. S. 609, 38 L. ed. 840; Kelly v. Com. 1 Grant Cas. 484; Sherman v. Robertson, 136 U. S. 570, 34 L. ed. 540; State v. Wilson, 30 Conn. 500; Hartranft v. Oliver, 125 U. S. 525, 31 L. ed. 813; United States v. Vowell, 5 Cranch, 368, 3 L. ed. 128. Criminal statutes are to be accurately and strictly construed, and cannot be extended United States v. Wiltberger, 5 Wheat. 76, 5 L. ed. 37; United States v. Morris, 14 Pet. 464, 10 L. ed. 543; Tiffany v. National Bank, 18 Wall. 409, 21 L. ed. 862; Texas v. Chiles, 21 Wall. 488, 22 L. ed. 650; Lewis v. United States, 92 U. S. 618, 23 L. ed. 513; United States v. Reese, 92 U. S. 214, 23 L. ed. 563; United States v. Chase, 135 Ú. S. 255, 34 L. ed. 117; Sarlls v. United States, 152 U. S. 570, 38 L. ed. 556. Mr. Edward B. Whitney, Assistant Attorney General, for defendant in error on first argument: The second count in the indictment is good. Crain v. United States, 162 U. S. 625, 40 L. ed. 1097; Dunbar v. United States, 156 U. S. 185, 39 L. ed. 390; United States v. Cook, 17 Wall. 168, 21 L. ed. 538. Mere lack of particularity is not sufficient ground for annulling an indictment. De fendant's remedy is by application for a bill of particulars. Durland v. United States, 161 U. S. 306, 40 L. ed. 709; Cochran v. United States, 157 U. S. 286, 39 L. ed. 704. It was originally claimed by the Treasury Department that goods are imported into the United States as soon as they arrive within the limits of a collection district. This contention was overruled by the courts, but it was always admitted that the impor tation was complete when the goods reached a port of entry. United States v. Vowell, 5 Cranch, 368, 3 L. ed. 128; Arnold v. United States, 9 Cranch, 104, 3 L. ed. 671; Meredith v. United States, 13 Pet. 486, 10 L. ed. 258; Harrison v. Vose, 9 How. 372, 13 L. ed. 179; United States v. Lyman, 1 Mason, 482; United States v. Ten Thousand Cigars, 2 Curt. C. C. 436. Messrs. Henry M. Hoyt, Assistant Attorney General, and James M. Beck, for defendant in error on first reargument: Where the offense is purely statutory it is, as a general rule, sufficient in the indictment to charge the defendant with acts coming fully within the statutory description, in the substantial words of the statute, without any further expansion of the matter. Dunbar v. United States, 156 U. S. 185, 39 L. ed. 390; Connors v. United States, 158 U. S. 408, 39 L. ed. 1033; Evans v. United States, 153 U. S. 584, 38 L. ed. 830. Messrs. James M. Beck and Henry M. fendant in error on second reargument: Hoyt, Assistant Attorney General, for de The crimes and offenses aimed at by § 3082 plainly include the acts established in this case. United States v. Nine Trunks, Fed. Cas. No. 15,885; United States v. Sixty-seven Packages of Dry Goods, 17 How. 85, 15 L. ed. 54; Wilson v. Saunders, 1 Bos. & P. 267; Atty. Gen. v. Towns, 6 Price, 198; Atty. Gen. v. Tomsett, 2 Cromp. M. & R. 170; United States v. Gates, 2 Fed. Cas. No. 15,191; United States v. Martin, 1 Hask. 166; United States v. The Express, Fed. Cas. No. 15,066; United States v. Nolton, 5 Blatchf 427; United States v. Smith, 2 Blatchf. 127; The Emily, 9 Wheat. 381. 6 L. ed. 116; United States v. Quincy, 6 l'et. 445, 8 L. ed. 458. [436] *Mr. Justice White delivered the opinion of the court: cerning the importation of merchandise. The generic expression, "import and bring into the United States," did not convey the neces sary information, because importing mer chandise is not per se contrary to law, and could only become so when done in violation of specific statutory requirements. As said in the Hess Case, at page 486 [31: 517]: The plaintiff in error was prosecuted under an indictment consisting of three counts. The first was intended to charge a violation of § 3082 of the Revised Statutes, by the alleged unlawful importation into the port of Philadelphia of certain diamonds. The second averred a violation of section 2865 of the Revised Statutes, by the smuggling and clandestine introduction, on the like date, and into the same port, of the articles which were embraced in the first count. The third count need not be noticed, since as to it the trial judge, at the close of the evidence, in-enue of the United States, smuggle and clan. structed the jury to return a verdict of not guilty. "The statute upon which the indictment is founded only describes the general nature of the offense prohibited, and the indictment, in repeating its language without averments disclosing the particulars of the alleged offense, states no matters upon which issue could be formed for submission to a jury." As to the sufficiency of the second count. *In this count it was charged in substance [438] that Keck "did knowingly, wilfully, and unlawfully, and with intent to defraud the rev destinely introduce into the United States, to wit, into the port of Philadelphia," certain "diamonds" of a stated value, which should have been invoiced and duty thereon paid or accounted for, but which, to the knowledge of Keck and with intent to defraud the revenue, were not invoiced nor the The sufficiency of the first and second counts was unsuccessfully challenged by the accused, both by motion to quash and by demurrer. The jury returned a general verdict of guilty; and, after the court had overruled motions for a new trial and in arrest of judg-duty paid or accounted for. ment, the accused was duly sentenced. Er- Two objections were urged against this ror was prosecuted, and the case is here for review. The assignments of error are numerous, but we need only consider the questions as to the sufficiency of the first and second counts of the indictment and the propriety of the conviction under the second count. [437] *Was the first count sufficient? count: first, that diamonds, under the law then in force, were on the free list, and hence not subject to duty; and, second, that if all diamonds were not on the free list, at least some kinds of diamonds were on such list, and the count should therefore have specific. ally enumerated the kinds or classes of dia monds which were subject to duty by law. This count was based upon that portion of With respect to the first objection, counsection 3082 of the Revised Statutes, which sel for plaintiff in error contends that all made it an offense to “fraudulently or know-diamonds were free of duty, because of the ingly import or bring into the United States, or assist in doing so, any merchandise, contrary to law." It was charged in the count that Keck, on the date named, "did knowingly, wilfully, and unlawfully import and bring into the United States, and did assist in importing and bringing into the United States, to wit, into the port of Philadelphia," diamonds of a stated value, "contrary to law and the provisions of the act of Congress in such cases made and provided, with intent to defraud the United States." As is apparent, the alleged offense averred in this count was charged substantially in the words of the statute. In the argument at bar counsel for the United States conceded the vagueness of the accusation thus made; and, tested by the principles laid down in United States v. Carli, 105 U. S. 611, 612 [26: 1135], United States v. Hess, 124 U. S. 483 [31: 516], and Evans v. United States, 153 U. S. 584, 587 [38: 830, 832], the count was clearly in sufficient. The allegations of the count were obviously too general, and did not sufficiently inform the defendant of the nature of the accusation against him. The words, "contrary to law," contained in the statute clearly relate to legal provisons not found in section 3082 itself, but we look in vain in the count for any indication of what was relied on as violative of the statutory regulations con following provision contained in the free list "Par. 467. Diamonds; miners', glaziers', and engravers' diamonds not set, and dia mond dust or bort, and jewels to be used in the manufacture of watches or clocks." Paragraph 338 imposes duties as follows: "Precious stones of all kinds, cut but not set, 25 per cent ad valorem; if set, and not specially provided for in this act, including pearls set, 30 per cent ad valorem; imitations of precious stones, not exceeding an inch in dimensions, not set, 10 per cent ad valorem. And on uncut precious stones of all kinds, 10 per cent ad valorem." It is apparent that it was not the intention of Congress to put one of the most valuable of precious stones on the free list, while all others were made dutiable. The word "diamonds," which is but the commencement of paragraph 467, was plainly designed as a heading, for convenient reference, and the semicolon following should be read as though a colon. The other ground of objection to the sec ond count is controlled by the decision in[439] Dunbar v. United States, 156 U. S. 185 [39: 390]. In that case, paragraph 48 of section 1 of the tariff act of 1890 provided that opium containing less than nine per cent of morphia, and opium prepared for smoking, should be subject to a duty of twelve cents per pound. Counts charging the smuggling |