inal jurisdiction, upon the issue of guilt or innocence; and by its judgment, unless he gives security for his appearance in another court, he may be deprived of his liberty. The police court is not, in such cases, an examining court merely, but a trial court, in the fullest sense of those words. According to many adjudged cases, arising under constitutions which declare, generally, that the right of trial by jury shall remain inviolate, there are certain minor or petty offenses that may be proceeded against summarily, and without a jury; and, in respect to other offenses, the constitutional requirement is satisfied if the right to a trial by jury in an appellate court is accorded to the accused. Byers v. Com., 42 Pa. St. 89, 94, affords an illustration of the first of the above classes. It was there held that while the founders of the commonwealth of Pennsylvania brought with them to their new abode the right of trial by jury, and while that mode of trial was considered the right of every Englishman, too sacred to be surrendered or taken away, "summary convictions for petty offenses against statutes were always sustained, and they were never supposed to be in conflict with the common-law right to a trial by jury." So, in State v. Glenn, 54 Md. 573, 600, 605, it was said that "in England, notwithstanding the provision in the magna charta of King John, art. 46, and in that of 9 Hen. III. c. 29, which declares that no freeman shall be taken, imprisoned, or condemned but by lawful judgment of his peers, or by the law of the land, it has been the constant course of legislation in that kingdom, for centuries past, to confer summary jurisdiction upon justices of the peace for the trial and conviction of parties for minor and statutory police offenses. * * And, when it is declared that the party is entitled to a speedy trial by an impartial jury, that must be understood as referring to such crimes and accusations as have, by the regular course of the law and the established modes of procedure, as theretofore practiced, been the subjects of jury trial. It could never have been intended to embrace every species of accusation involving either criminal or penal consequences." So, also, in New Jersey, where the constitution guarantied that "the right of trial by jury shall remain inviolate," the court said: "Extensive and summary police powers are constantly exercised in all the states of the Union for the repression of breaches of the peace and petty offenses, and these statutes are not supposed to conflict with the constitutional provisions securing to the citizen a trial by jury. * * * This constitutional provision does not prevent the enforcement of the by-laws of a municipal corporation without a jury trial." McGear v. Woodruff, 33 N. J. Law, 213. In State v. Conlin, 27 Vt. 318, 323, the court sustains the right of the legislature to provide for the punishment of minor offenses, having reference to the internal police of the state, "with fine only, or imprisonment in the county jail for a brief and limited period." See, also, Williams v. Augusta, 4 Ga. 509. The doctrines of many of the cases are thus summarized by Mr. Dillon in his work on Municipal Corporations, (volume 1, § 433:) "Violations of municipal by-laws proper, such as fall within the description of municipal police regulations, as, for example, those concerning markets, streets, water-works, city officers, etc., and which relate to acts and omissions that are not embraced in the general criminal legislation of the state, the legislature may authorize to be prosecuted in a summary manner, by and in the name of the corporation, and need not provide for a trial by jury. Such acts and omissions are not crimes or misdemeanors to which the constitutional right of trial by jury extends." The same author says, in respect to the other class of cases above referred to: "It is, however, the prevailing doctrine that, although the charge or matter in the municipal or local courts be one in respect of which the party is entitled to a trial by jury, yet if by an appeal, clogged with no unreasonable restrictions, he can have such a trial as a matter of right in the appellate court, this is sufficient, and his constitutional right to a jury trial is not invaded by the summary proceeding in the first instance." Id. § 439. See, also, City of Emporia v. Volmer, 12 Kan. 622, 630. Perhaps the

strongest expressions, in this direction, are to be found in Jones v. Robbins, 8 Gray, 329, 341, in which it was said, on behalf of a majority of the supreme judicial court of Massachusetts: "And we believe it has been generally understood and practiced here and in Maine, and perhaps in other states having a similar provision, that as the object of the clause is to secure a benefit to the accused, which he may avail himself of or waive, at his own election; and as the purpose of the provision is to secure the right, without directing the mode in which it shall be enjoyed,-it is not violated by an act of legislation which authorizes a single magistrate to try and pass sentence, provided the act contains a provision that the party shall have an unqualified and unfettered right of appeal, and a trial by jury in the appellate court, subject only to the common liability to give bail, or to be committed to jail, to insure his appearance, and to abide the judgment of the court appealed to."

Somewhat different views have been expressed by the district court of the United States for the Southern district of New York. Charles A. Dana having been charged by information in the police court of the District of Columbia with having published a libel, and having been arrested in New York, the warrant to authorize his being brought here was refused, and he was discharged, upon the ground that, if brought to this District, he would be tried in a manner forbidden by the constitution. Mr. Justice BLATCHFORD said in Re Dana, 7 Ben. 1: "Even if it were to be conceded that notwithstanding the provision in the constitution that the trial of all crimes, except in cases of impeachment,' shall be by jury, congress has the right to provide for the trial, in the District of Columbia, by a court without a jury, of such offenses as were, by the laws and usages in force at the time of the adoption of the constitution, triable without a jury, it is a matter of history that the offense of libel was always triable, and tried, by a jury. It is therefore one of the crimes which must, under the constitution, be tried by a jury. The act of 1870 provides that the information in this case shall not be tried by a jury, but shall be tried by a court. It is true that it gives to the defendant, after judgment, if he deems himself aggrieved thereby, the right to appeal to another court, where the information must be tried by a jury. But this does not remove the objection. If congress has the power to deprive the defendant of his right to a trial by jury for one trial, and to put him, if convicted, to an appeal to another court, to secure a trial by jury, it is difficult to see why it may not also have the power to provide for several trials by a court, without a jury, on several successive convictions, before allowing a trial by a jury. In my judgment, the accused is entitled, not to be first convicted by a court and then to be acquitted by a jury, but to be convicted or acquitted in the first instance by a jury."

Without further reference to the authorities, and conceding that there is a class of petty or minor offenses not usually embraced in public criminal statutes, and not of the class or grade triable at common law by a jury, and which, if committed in this District, may, under the authority of congress, be tried by the court and without a jury, we are of opinion that the offense with which the appellant is charged does not belong to that class. A conspiracy such as is charged against him and his co-defendants is by no means a petty or trivial offense. "The general rule of the common law," the supreme judicial court of Massachusetts said in Com. v. Hunt, 4 Metc. 111, 121, "is that it is a criminal and indictable offense for two or more to confederate and combine together, by concerted means, to do that which is unlawful or criminal, to the injury of the public, or portions or classes of the community, or even to the rights of an individual." In State v. Burnham, 15 N. H. 401, it was held that "combinations against law or against individuals are always dangerous to the public peace and to public security. To guard against the union of individuals to effect an unlawful design is not easy, and to detect and punish them is often extremely difficult." Hawkins, in discussing the nature of con

spiracies as offenses against public justice, and referring especially to the statute of 21 Edw. I. relating to confederacies to procure the indictment of an innocent person, says that, "notwithstanding the injury intended to the party against whom such a confederacy is formed may perhaps be inconsiderable, yet the association to pervert the law, in order to procure it, seems to be a crime of a very high nature, and justly to deserve the resentment of the law." 1 Hawk. P. C. c. 27, § 3. So in Reg. v. Parnell, 14 Cox, Crim. Cas. 508, 514, it was observed that an "agreement to effect an injury or wrong to another by two or more persons is constituted an offense, because the wrong to be effected by a combination assumes a formidable character. When done by one alone it is but a civil injury; but it assumes a formidable or aggravated character when it is to be effected by the powers of the combination." Tomlin says that "the word 'conspiracy' was formerly used almost exclusively for an agreement of two or more persons falsely to indict one, or to procure him to be indicted, of felony;" but that "now it is no less commonly used for the unlawful combinations of journeymen to raise their wages, or to refuse working, except on certain stipulated conditions." Toml. Law Dict. tit. "Conspiracy. See, also, Com. v. Carlisle, Brightly, N. P. 40; 3 Whart. Crim. Law, § 2322; 2 Archb. Crim. Pr. & Pl. (Pomeroy's Ed.) note, 1830.

These authorities are sufficient to show the nature of the crime of conspiracy at common law. It is an offense of a grave character, affecting the public at large; and we are unable to hold that a person charged with having committed it in this District is not entitled to a jury, when put upon his trial. The jurisdiction of the police court, as defined by existing statutes, does not extend to the trial of infamous crimes or offenses punishable by imprisonment in the penitentiary, But the argument made in behalf of the government implies that if congress should provide the police court with a grand jury, and authorize that court to try, without a petit jury, all persons indicted, even for crimes punishable by confinement in the penitentiary, such legislation would not be an invasion of the constitutional right of trial by jury, provided the accused, after being tried and sentenced in the police court, is given an unobstructed right of appeal to, and trial by jury in, another court to which the case may be taken. We cannot assent to that interpretation of the constitution. Except in that class or grade of offenses called "petty offenses," which, according to the common law, may be proceeded against summarily in any tribunal legally constituted for that purpose, the guaranty of an impartial jury to the accused in a criminal prosecution, conducted either in the name or by or under the authority of the United States, secures to him the right to enjoy that mode of trial from the first moment, and in whatever court, he is put on trial for the offense charged. In such cases, a judgment of conviction, not based upon a verdict of guilty by a jury, is void. To accord to the accused a right to be tried by a jury in an appellate court after he has been once fully tried otherwise than by a jury in the court of original jurisdiction, and sentenced to pay a fine, or be imprisoned for not paying it, does not satisfy the requirements of the constitution. When, therefore, the appellant was brought before the supreme court of the District, and the fact was disclosed that he had been adjudged guilty of the crime of conspiracy charged in the information in this case, without ever having been tried by a jury, he should have been restored to his liberty. For the reasons stated, the judgment is reversed, and the cause remanded, with directions to discharge the appellant from custody.

ARKANSAS VALLEY SMELTING Co. v. BELDEN MIN. Co.

(May 14, 1888.)

1. ASSIGNMENT-WHAT ASSIGNABLE-PERSONAL CONTRACTS.

Defendant contracted to deliver 10,000 tons of lead ore from its mines to the firm of B. & E., at their smelting works, the ore to be delivered at the rate of 50 tons per day, and to become the property of B. & E. as soon as delivered. The price was not fixed by the contract, but as often as 100 tons had been delivered the ore was to be assayed by the parties, or, if they could not agree, by an umpire; and after that had been done, and according to the result of the assay, and the proportions of lead, silver, silica, and iron thereby proved to be in the ore, the price was to be ascertained and paid. During the time that must elapse between the delivery of the ore and the ascertainment of the price, defendant had no security for its payment, except in the character and solvency of B. & E. Held, that the contract was personal in its nature, and that plaintiff, claiming as assignée, could not compel defendant to continue delivering the ore.

2. SAME.

After a part of the ore had been delivered, the firm of B. & E. dissolved, and the contract was assigned to B., to whom thereafter defendant continued to deliver ore under the contract. Held, that this fact did not put defendant under any obligation to deliver ore to plaintiff, an entire stranger to the contract, to whom B. had assigned it without defendant's consent.

In error to the Circuit Court of the United States for the District of Colorado.

This was an action brought by a smelting company, incorporated by the laws of Missouri, against a mining company, incorporated by the laws of Maine, and both doing business in Colorado by virtue of a compliance with its laws, to recover damages for the breach of a contract to deliver ore, made by the defendant with Billing & Eilers, and assigned to the plaintiff. The material allegations of the complaint were as follows: On July 12, 1881, a contract in writing was made between the defendant of the first part and Billing & Eilers of the second part, by which it was agreed that the defendant should sell and deliver to Billing & Eilers, at their smelting works in Leadville, 10,000 tons of carbonate lead ore from its mines at Red Cliff, at the rate of at least 50 tons a day, beginning upon the completion of a railroad from Leadville to Red Cliff, and continuing until the whole should have been delivered, and that "all ore so delivered shall at once, upon the delivery thereof, become the property of the second party;" and it was further agreed as follows: "The value of said ore and the price to be paid therefor shall be fixed in lots of about one hundred tons each; that is to say, as soon as such a lot of ore shall have been delivered to said second party, it shall be sampled at the works of said second party, and the sample assayed by either or both of the parties hereto, and the value of such lots of ore shall be fixed by such assay; in case the parties hereto cannot agree as to such assay, they shall agree upon some third disinterested and competent party, whose assay shall be final. The price to be paid by said second party for such lot of ore shall be fixed on the basis hereinafter agreed upon by the closing New York quotations for silver and common lead, on the day of the delivery of sample bottle, and so on until all of said ore shall have been delivered. Said second party shall pay said first party at said Leadville for each such lot of ore at once, upon the determination of its assay value, at the following prices;" specifying, by reference to the New York quotations, the price to be paid per pound for the lead contained in the ore, and the price to be paid for the silver contained in each ton of ore, varying according to the proportions of silica and of iron in the The complaint further alleged that the railroad was completed on November 30, 1881, and thereupon the defendant, under and in compliance with the contract, began to deliver ore to Billing & Eilers at their smelting works, and delivered 167 tons between that date and January 1, 1882, when "the said firm of Billing and Eilers was dissolved, and the said contract and the business of said firm, and the smelting works at which said ores were to be

ore.

delivered, were sold, assigned, and transferred to G. Billing, whereof the defendant had due notice;" that after such transfer and assignment the defendant continued to deliver ore under the contract, and between January 1 and April 21, 1882, delivered to Billing at said smelting works 894 tons; that on May 1, 1882, the contract, together with the smelting works, was sold and conveyed by Billing to the plaintiff, whereof the defendant had due notice; that the defendant then ceased to deliver ore under the contract, and afterwards refused to perform the contract, and gave notice to the plaintiff that it considered the contract canceled and annulled; that all the ore so delivered under the contract was paid for according to its terms; that "the plaintiff and its said assignors were at all times during their respective ownerships ready, able, and willing to pay on the like terms for each lot as delivered, when and as the defendant should deliver the same, according to the terms of said contract, and the time of payment was fixed on the day of delivery of the sample bottle,' by which expression was, by the custom of the trade, intended the completion of the assay or test by which the value of the ore was definitely fixed;" and that "the said Billing and Eilers, and the said G. Billing, their successor and assignee, at all times since the delivery of said contract, and during the respective periods when it was held by them respectively, were able, ready, and willing to and did comply with and perform all the terms of the same, so far as they were by said contract required; and the said plaintiff has been at all times able, ready, and willing to perform and comply with the terms thereof, and has from time to time, since the said contract was assigned to it, so notified the defendant." The defendant demurred to the complaint for various reasons, one of which was that the contract therein set forth could not be assigned, but was personal in its nature, and could not, by the pretended assignment thereof to the plaintiff, vest the plaintiff with any power to sue the defendant for the alleged breach of contract. The circuit court sustained the demurrer, and gave judgment for the defendant; and the plaintiff sued out this writ of error.

R. S. Morrison, T. M. Patterson, and C. S. Thomas, for plaintiff in error.

Mr. Justice GRAY, after stating the facts as above, delivered the opinion of the court.

If the assignment to the plaintiff of the contract sued on was valid, the plaintiff is the real party in interest, and as such entitled, under the practice in Colorado, to maintain this action in its own name. Rev. St. § 914; Code Civil Proc. Colo. § 3; Steel Co. v. Lundberg, 121 U. S. 451, 7 Sup. Ct. Rep. 958. The vital question in the case, therefore, is whether the contract between the defendant and Billing & Eilers was assignable by the latter, under the circumstances stated in the complaint. At the present day, no doubt, an agreement to pay money, or to deliver goods, may be assigned by the person to whom the money is to be paid or the goods are to be delivered, if there is nothing in the terms of the contract, whether by requiring something to be afterwards done by him, or by some other stipulation, which manifests the intention of the parties that it shall not be assignable. But every one has a right to select and determine with whom he will contract, and cannot have another person thrust upon him without his consent. In the familiar phrase of Lord DENMAN, "You have the right to the benefit you anticipate from the character, credit, and substance of the party with whom you contract." Humble v. Hunter, 12 Q. B. 310, 317; Winchester v. Howard, 97 Mass. 303, 305; Ice Co. v. Potter, 123 Mass. 28; King v. Batterson, 13 R. I. 117, 120; Lansden v. McCarthy, 45 Mo. 106. The rule upon this subject, as applicable to the case at bar, is well expressed in a recent English treatise: "Rights arising out of contract cannot be transferred if they are coupled with liabilities, or if they involve a relation of personal confidence such that the party whose agreement conferred those rights must have intended them to be exercised