record, properly verified by the attestation of the judge, the matters of fact occurring at the trial, on which the point of law arises, which enters into the ruling and decision of the court excepted to, answers sufficiently the description of a proper bill of exceptions.

law, and if nothing else appeared it would have
been the duty of the court so to have instructed
the jury.

The judgment of the Supreme Court of Mon-
tana Territory is, therefore, reversed and the
cause is remanded, with instructions to take fur-
ther proceedings therein in conformity with law.
True copy. Test:
James H. McKenney, Clerk, Sup. Ct. U. 8.

GEORGE C. RAND, Junior, Appt.,

v.

MARTHA A. WALKER.

(See S. C. Reporter's ed. 340-345.) Jurisdiction-removal of causes—necessary parties.

It is further objected here, however, in argu-
ment, that the exception in the present case
must be disregarded, because the appeal from
the district court to the supreme court was not
taken in time under the provisions of section
408, Montana Statutes, 1879, which is as fol-
lows: "An exception to the decision or verdict,
on the ground that it is not supported by the
evidence cannot be reviewed on an appeal from
the judgment unless the appeal is taken within
sixty days after the rendition of the judgment."
In the present case, the judgment was rendered
March 22, and the appeal taken on July 13,1880,
more than sixty days after the rendition of the
judgment. But the exception taken and to be
considered is not within the description of the
class mentioned in this section of the statute.
Here there was no verdict or decision upon the
facts in favor of either party, which it is al-
leged was erroneous becanse not supported by
the evidence. The ruling excepted to was, that
upon the evidence submitted by the plaintiffs
it was matter of law that they could not re-
cover. The verdict or decision referred to in
the above quoted section of the statute relates
exclusively to findings alleged to be erroneous avoid the effect of a judgment of a federal court,
3. Where a party by a supplemental bill seeks to
for want of sufficient support in the evidence. not by avoiding the judgment as between the part-
Here the matter of the exception is purely mat-ies, but by showing that as to her it is of no effect,
ter of law.

But on the motion for a nonsuit the court was also in error. It should not have been granted. The ground on which the district court proceeded was that the sale of the stock of goods by Ingersoll to the plaintiffs was void under section 15 of a Statute of Montana relating to conveyances and contracts (Laws of Montana, 1872, p. 394), which is as follows:

1. In a suit for assignment of dower in lots, the legal title to which is according to the pleadings and the evidence, in one defendant for the joint in joint possession, and the prayer of the bill being use of himself and another defendant, they being for a decree against both for damages as well as for the assignment of dower, both of them are necessary parties.

2. The right to remove a suit on the ground of separable controversy is, by the statute, confined to the parties to that controversy.

she not having been a party to it, no question is
raised under the authority of the United States so
as onfer jurisdiction on the circuit court.
[No. 1135.]
Submitted Mar. 2, 1886. Decided Mar. 22, 1886.

PPEAL from the Circuit Court of the United

The case is stated by the court.
Mr. W. C. Goudy, for appellant.
Messrs. Edward S. Isham and Robert
T. Lincoln, for appellee.

Mr. Chief Justice Waite delivered the opin-
ion of the court:

"Every sale made by a vendor of goods and chattels in his possession or under his control, and every assignment of goods and chattels, unless the same be accompanied by the immediate delivery and be followed by an actual and continued change of possession of the thing This is an appeal under section 5 of the Act sold and assigned, shall be conclusive evidence of March 3, 1875, 18 Stat. at L. 470, chap. 137, of fraud as against the creditors of the vendor, or from an order of the circuit court remanding a the person making such assignments, or subse-suit which had been removed from a state quent purchasers in good faith."

Upon the facts recited in the bill of exceptions, that the bill of sale was executed and delivered at Helena on Saturday night, March 29, 1879, at 9 o'clock; that the stock of goods was at Vestel, twenty-three miles distant; that the plaintiffs took possession of them the next morning, Sunday, at 4 o'clock, and remained in possession until the goods were seized under the levy of the attachment made by the defendants the next morning; it appears that there was not a single hour in which business could be, or was usually, transacted that intervened between the execution and delivery of the bill of sale and the transfer of the possession of the property. This was certainly an immediate delivery of possession under the statute, and that possession continued until interrupted by the seizure by the defendants. Upon the facts in evidence, the title of the plaintiffs to the goods in controversy was sufficiently established in

court. The suit was brought in the Superior
Court of Cook County on the 4th of April, 1881,
by Martha A. Walker, widow of Martin O.
Walker, deceased, a citizen of Illinois, against
George C. Rand, Jr., Charles E. Brown, Thomas
Brown and Henry G. Tucker, citizens of New
York, and John W. Doane, Samuel Otis Walker,
Edward Stone Walker, Augustus L. Chetlain
and Charles Fargo, citizens of Illinois, for an as-
signment of dower in certain lots in Chicago,
The bill charges that Martin O. Walker died
on the 28th of May, 1874, seised of the lots de-
scribed, and leaving Martha A. Walker, his
widow, and the defendants Walker, his sole
heirs at law: that on the first of August, 1874,
Mrs. Walker, the widow, demanded of the
heirs an assignment of her dower, which was
refused; that in the beginning of the year 1875,

NOTE.-Removal of causes; separable controversy.
See Sloane v. Anderson, ante, 899, note.

[340]

[341]

[284]

[285]

overruled February 1 1982 and on the 13 1th of the same moth swers were fled by the Browns and Tucker, by Fargo, by Edward ¤ nization Stone Walker, by Same Gas Walker, by Hi Chelain, and by Rand and Dosne. In the anLearn swer of Rand and Dosse, which was joint, RT Docce ressoos were given why dower had not been ATTERNS TO sred, but the conveyances to Rand as etect a limset and tharged in the bill were admitted. While in the answer it is stated that Rand alone holds the legal title under that conveyance, no refererence whatever is made to the allegation in the that this title is held for the joint account of Rand and Doane, and that the premises had bees since the conveyances in their joint possession.

TANK DOWELL de ocverance and mo ad mjoyed mes, jill bat sad Ten Tenested, Dare, Test of all premises, Posse & et uf and ap Cover heran, T At Frame and Band be e & vir Mix for 1 jer fever in sabi eccat my if November,

er Hove that on or November, A. D. and premises to THE I AM. Samuel J. Walker, SETTER. and as part of me Walker and far and aid premises to Tur ni harres in part, in Conde, and that said Doane and demises free from all inrect de state of dower of your

On the same day that this answer was filed Rand presented his petition to the court for a removal of the suit to the Circuit Court of the United States. This petition set forth the citizenship of Mrs. Walker, Rand, the Browns and Tucker, at the time of the commencement of the suit, and at the time of the presentation of the petition, the same as is above stated; that the petitioner alone held the legal title to the property, and that "In said suit there is a controversy which is wholly between citizens of different States and which can be fully determined as between them, to wit: a controversy between said Martha A. Walker, and your petitioner and the said Thomas Brown, Charles E. Brown and Henry G. Tucker." The state court thereupon made an order transferring the cause to the Circuit Court of the United States. A copy of the record was entered in due time in the circuit court; whereupon, a motion to remand was made by Mrs. Walker and denied by the court, but afterwards, on the 8th of June, 1885, after the cause had been argued at The evithe final hearing, it was remanded. dence showed clearly that Doane had a substantial interest in the property under the title held by Rand. From the order to remand this appeal was taken.

msists that the said Samuel and Edward S. Walker are liable famages for the detention Versand premises from the time she i tem that her dower be set off in soni they conveyed said premises o vit, the first day of January, cd that said Fargo is liable to a tamages for the detention of wer from said last mentioned day av of November, A. D. 1878. Dace and Rand are liable to or tamages for the like detention ver mizus in said premises from ... ember, A. D. 1878." at the premises were subtrust made to Charles Without considering whether, under the cir- [34 auncey Tucker now ser and Thomas cumstances of this case, the order to rema: I that, for reasons could be sustained at the time it was made in aer a charge on the the first of these grounds, we are entirely sit which is claimed. fied it was properly granted under the secon i. Tucker answered The suit is for an assignment of dower in lo's 81, denying the the legal title to which is sccording to the st had in any pleadings and the evidence, in Rar for the on the prop-joint use and benefit of himself an Doar Walker. On Rand and Deane are also as is alleged on the dants Doane one side and not denied on the other, in jolut femurrer to the possession, and the prayer of the b is for a these character decree against them yndy for damages on ye defendants, this account as well as for the assignment of dower.

Upon the argument here two positions were taken in support of the order appealed from, to wit:

1. That the petition for removal was not presented in time; and,

On the 5th ter of Rand and

2. That Rand had no controversy in the case to which Doane was not a necessary party.

It is claimed, however that as Rand bolls
The Walkers the legal te Data sa mzecessary and

"

The order remanding the case is affirmed.

True copy

Test:

James H. McKenney, Clerk, Sup. Jourt, U. &

merely nominal party, because his interests are | This, it is claimed, gave the circuit court juris-
represented for all the purposes of the suit by diction independent of any question of removal,
Rand as his trustee. It is certainly true, as was on the ground that thereafter the suit was one
said in Kerrison v. Stewart, 93 U. S. 160 [Bk. arising under the Constitution and laws of the
23, L. ed. 845], that Under some circum- United States within the meaning of the Act of
stances a trustee may represent his beneficiaries 1875. To this we cannot agree. The effort of
in all things relating to their common interest Mrs. Walker is not to avoid the judgment as be-
in the trust property. He may be invested with tween the parties, but to show that as to her,
such powers and subjected to such obligations she not being a party, it has no effect. This
that those for whom he holds will be bound by raises no question under the authority of the
what is done against him, as well as by what is United States.
done by him. The difficulty lies in ascertain-
ing whether he occupies such a position; not
in determining its effect if he does. If he has
been made such a representative, it is well set-
tled that his beneficiaries are not necessary part-
ies to a suit by him against a stranger to en-
force the trust, or to one by a stranger against
him to defeat it in whole or in part."
"But this
case has nothing in the pleadings or elsewhere
to show that Rand was authorized to represent
Doane in respect to the property any more
than one tenant in common respects another.
Having the legal title, a judgment against him
in favor of one not chargeable with notice of
Doane's equity might bind Doane as well as
Rand, but here there is the notice, and the bill
has been brought against both Rand and Doane
on that account. So far as this suit is concerned,
Doane is just as much a necessary party as he
would be if the deeds under which Rand holds
had in express terms provided that the convey-
ances were made for the joint use and benefit of
the two; and certainly under those circum-

45' stances, especially if the two were in actual
possession, Doane would be as necessary a party
as he would be if both the legal and the equi-
table title were in him. As the suit now stands,
it is, so far as Rand and Doane alone are con-
cerned, by a citizen of Illinois against one de-
fendant a citizen of Illinois and another defend-
ant a citizen of New York, to obtain an assign-
ment of dower in property owned by the two
defendants jointly, and in which they have a
common interest. Both defendants are neces-
sary parties, and consequently there cannot be
a removal by one alone, because the contro-
rersy is not separable; nor by the two together,
because as to them there is not the necsssary
citizenship.

JOSEPH C. MACKIN AND WILLIAM J.
GALLAGHER, Plffs. in Err.

v.

UNITED STATES.

(See S. C. Reporter's ed. 348-355.)

Infamous crimes—what are.

Crimes punishable by imprisonment in a state
prison or penitentiary, with or without hard labor,
held to answer in the federal courts otherwise than
are infamous crimes for which persons cannot be
on presentment or indictment of a grand jury.
[No. 924.)

Argued Mar. 2, 3, 1886. Decided Mar. 22, 1886.

Oween the Judges of the Circuit Court of
the United States for the Northern District of
Illinois.

a certificate of division in opinion be

Statement by Mr. Justice Gray:

This was an information filed by the District Attorney on January 20, 1885, in the District Court of the United States for the Northern District of Illinois, on section 5440 of the Revised Statutes, which is as follows:

[348]

If two or more persons conspire, either to commit any offense against the United States, or to defraud the United States in any manner [349] or for any purpose, and one or more of such parties do any act to effect the object of the It is argued, however, that the order to re- conspiracy, all the parties to such conspiracy and ought not to have been granted, because shall be liable to a penalty of not less than the bill shows there is in the suit a separable $1,000 and not more than $10,000, and to im Controversy between Mrs. Walker and the part-prisonment not more than two years." is interested in the deed of trust to Charles E. Brown, trustee, in which the citizenship necesry for a removal exists. As to this, it is sufEcient to say that neither of the parties to this Controversy, if it be separable, a question which we do not decide, has petitioned for removal; and the right to remove a suit on the ground of a separable controversy is, by the statute, ained to the parties "actually interested in such controversy."

After the suit got into the circuit court a supplemental bill was filed by Mrs. Walker, in ich she alleged that a certain judgment, which had been obtained in the Circuit Court of the United States after the removal, in a suit to which she was not a party, had been obLaced by collusion between the parties thereto, and did not conclude her upon certain questas arising under the deed of trust to Brown.

The information contained seven counts, which were respectively for conspiracies to com mit offenses within sections 5512, 5511 and 5403. The substance of the offense, as alleged in different forms in the various counts, was the breaking open of a package containing a return, by the judges and clerks of election, of an election held in a district of the City of Chicago to choose a representative in Congress and certain state and county officers, the alteration of the certificate of the result of the election, the poll book, the tally list of the votes cast for each candidate, and a large number of the ballots; and the substitution of spurious papers in their stead.

In the district court, the defendants were tried by a jury and convicted, and on March 21, 1885, were sentenced to pay a fine of $5,000 each, and to be imprisoned for two years in the

The reasons for that jodement, without unINSTALLING 28. Teiste them in detail, or to STRE DE LAmes cited in their support, I. Je summed up as follows: the Fifth AmendTHIT MC IN THw the rule of the common law, moment the mode of prosecuting those acrised of imme, by which an information by the mer-General, without the intervention of a mai fry, was not allowed for a capital me or for any felony; rather than the rule

endence, by which those convicted of mes of a certain character were disqualified rustify is witnesses. In other words, of the mes of infamy known to the law of fugind before the Declaration of Independ Hence, the Constitutional Amendment looked to the coe founded on the opinions of the people Fill a Jarns is C Code respecting le mode of punishment, rather than $ 7. Ben, wo ih founded on the construction of law re$1. geting the future credibility of the delin1 The leading word "capital" describ Sa Lu 1975 mg 1, 2, 38g the crime by its punishment only, the assomeni nusime a § 39. Cosa cited words or otherwise infamous crime" ne 1 3 Reis an 4. Rev. must, by an elementary rule of construction, 2 am, 1983, 7. AAL, SP. PEX. Stat Mass be held to include any crime subject to an inLove's Amporarad Stat Mich famous punishment, even if they should be The Constitution of held to include also crimes infamous in their

The Castro tf the United States. 11, s7 Const; Rev. Cor 188 188 = 7.4 p. 796; 1 Rev. Stat. ka KaNe: Rev. Stat. N. Y. 7th INNAA chap. 1, nile Crimes, § 30; Comer, Sasa. NeX, 1881, p. 705, § 247; 1 Comp. aws of Nevada, p. 108 $8: Const. N. J. art. SSN. J 1947, title VIII. chap. 4, 13. Sa New Mexico, 1884, § 669; North Ceolina Battle's Revisil, p. 32, 12, Const. 88 Gen Laws Oreg. 1843-1872, p. 341, § 3; Pa 1 Brighty, Pardon's Digest, p. 31, Const. as amended in 1838, 1850, 1857 and 1864, § 10; Pab, Stat. R. I. 1882, p. 697, § 1: Const. S. C. 1968, art. 1, Declaration of Rights, § 19; Code

[3

nature, independently of the punishment af- [3
fixed to them. Having regard to the object
and the terms of the amendment, as well as to
the history of its proposal and adoption, and
to the early understanding and practice under
it, no person can be held to answer, without
presentment or indictment by a grand jury,
for any crime for which an infamous punish-
ment may lawfully be imposed by the court.
The test is whether the crime is one for which
the statutes authorize the court to award an in-
famous punishment, not whether the punish-
ment ultimately awarded is an infamous one;
when the accused is in danger of being sub-
jected to an infamous punishment if convicted,
he has the right to insist that he shall not be

put upon his trial, except on the accusation | tenced to hard labor, can be put to work
of a grand jury. The Constitution protecting either as part of his punishment or as part of
everyone from being prosecuted in a court of the discipline and treatment of the prison, was
the United States, without the intervention of much discussed at the bar; but we have not
a grand jury, for any crime which is subject found it necessary to dwell upon it, because
by law to an infamous punishment, no declara- we cannot doubt that at the present day
tica of Congress is needed to secure, or com- imprisonment in a state prison or peniten-
petent to defeat, the constitutional safeguard. tiary, with or without hard labor is an in-
What punishments shall be considered as in- famous punishment. It is not only so consid-
famous may be affected by the changes of ered in the general opinion of the people, but
public opinion from one age to another; and it has been recognized as such in the legisla-
for more than a century, imprisonment at hard tion of the States and Territories, as well as
labor in the state prison or penitentiary has been of Congress.
considered an infamous punishment, in En-
gland and America.

[353]

[354]