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the acts of both. The use of the word 'em- the time during the selection, and no one else bezzle' in the indictment is surplusage. The took part in it. It is not shown they are not charge is a larceny as described in the in- of opposite politics, and this is to be predictment.” The defendants took an excep- sumed. There was no such material irregution.

larity as vitiated the panel, but a substanThe defendants then moved to quash the tial compliance with the statute upon the panel of petit jurors, on the ground, among subject. The motion in arrest of judgment others, that the jurors had not been selected is overruled." and drawn in the mode required by the Re- Subsequently the defendant moved for a vised Statute of the United States. On this new trial upon various grounds. That momotion evidence was heard, but the evidence tion was overruled, and this writ of error was not made a part of the record by bill was brought. of exceptions or otherwise. The motion to

Messrs. Francis H. Dexter, Frederic quash was denied.

D. McKenney, and John Spalding Thereupon the defendants were arraigned, Flannery for plaintiffs in error. and pleaded not guilty. Bystanders were

Assistant Attorney General Robb and summoned to serve on the panel, and from Mr. Glenn E. Husted for defendant in them a jury was selected. No objection was made to the jury so selected.

The result of the trial was a verdict of Mr. Justice Harlan, after making the guilty on the first count.

foregoing statement, delivered the opinion After the return of the verdict the ac- of the court: cused moved in arrest of judgment upon the The first question is one of the jurisdicfollowing grounds: That the grand jury tion of this court to re-examine the judg. was not selected or drawn according to the ment below,—the government insisting that requirements of the statute in such cases we are without jurisdiction. made and provided; that the clerk of the We are of opinion that this question is court took no part in the selection of the settled by Crowley v. United States, 194 U. names to be placed in the jury box, but the S. 461, 462, 48 L. ed. 1075, 1077, 24 Sup. other jury commissioner of the court, after Ct. Rep. 731, which was a criminal prosedirecting a deputy clerk to prepare lists cution for the violation of certain statutes and tickets of persons, placed all the tickets of the United States relating to the postal with names in the box himself; that from service. the tickets and names so placed in the box By the act of April 12th, 1900 (31 Stat. by the commissioner the grand jury was at L. 85, chap. 191), establishing a civil subsequently drawn; that the deputy clerk government for Porto Rico, it was provided was not and is not a person authorized un- that, except as otherwise provided, the statder the law to take part in the selection or utory laws of the United States shall have drawing the grand and petit juries of the the same force and effect in Porto Rico as court; that he had not been theretofore ap- in the United States; also, that writs of pointed by the court for that purpose; that error and appeals may be prosecuted from he was not shown to be of a different po- the final decisions of the district court of litical affiliation from the jury commission- the United States for Porto Rico “in all er theretofore appointed by the court; and cases where

an act of Congress is that said names were not placed in the box brought in question and the right claimed alternately by the commissioner and the thereunder is denied.” § 35. The same act clerk. 21 Stat. at L. 43, chap. 52, U. S. provided that the United States court for Comp. Stat. 1901, p. 624.

Porto Rico shall have jurisdiction “of all The motion in arrest of judgment was cases cognizant in the circuit courts of the overruled, the court making an order which United States, and shall proceed therein in contained the following recitals: "It ap- the same manner as a circuit court.” § 34. pears the regular jury commissioner, Andres In Crowley's Case the contention of the acCrosas, and the deputy clerk, Frank Anton-cused, based upon a plea in abatement, was santi, acted in doing so, the clerk of the that certain members of the jury finding the court being absent on sick leave. There indictinent were disqualified under the local is no charge of corruption or that the selec | law to serve as grand jurors, and that the tion was not by impartial persons. The statutes of the United States made it the general rule as to provisions of law for the duty of the district court to follow the local selection of jurors is, that they are only | law in that respect. Referring to the above directory. There appear to have been some act, we said: “In this case that act was irregularities, and not an exact compliance brought in question by the contention of the with the terms of the statute; but both the parties,—the contention of the accused becommissioner Crosas and the deputy clerk ing, in substance, that, pursuant to that made the selection, and both were present all act of Congress, the court below, in the matter of the qualifications of grand jurors, which commissioner shall be a citizen of should have been controlled by the provi- good standing, residing in the district in sions of the local law relating to jurors, in which such court is held, and a well-known connection with the statutes of the United member of the principal political party in States relating to the organization of grand the district in which the court is held opjuries and the trial and disposition of crimi-posing that to which the clerk may belong, nal causes; and the court below deciding the clerk and said commissioner each to that, notwithstanding the Foraker act, the place one name in said box alternately, local act of January 31st, 1901, referred to without reference to party affiliations, unin the plea, was not applicable to this prose- til the whole number required shall be cution, and that the grand jury finding the placed therein,

and all juries to indictment, if a grand jury was necessary, serve in courts after the passage of this was organized consistently with the laws of act shall be drawn in conformity herethe United States under which the court with.” proceeded. It thus appears that the accused When, therefore, the accused in this case, claimed a right under the act of Congress by their motion in arrest of judgment, and under the Revised Statutes of the Unit. claimed the benefit of the above statutes, ed States, which, it is alleged, was denied the acts of Congress referred to were to him in the court below. This court has, brought in question within the meaning of therefore, jurisdiction to inquire whether the act of April 12th, 1900, as interpreted there is anything of substance in that in the Crowley Case; and the rights assertclaim."

ed by the accused under those statutes havAs the Porto Rican statutes contain noing been denied when the motion in arrest provisions relating to the selection, drawing, of judgment was overruled, the case could or impaneling of grand jurors, it was, as be brought here. The words "brought in the accused contends in this case, the duty question” in that act do not mean that the of the district court of the United States accused, in order to bring the final judgfor Porto Rico, in criminal prosecutions for ment here, must have disputed the validcrimes against the United States, to keep ity of the acts of Congress which were alin view § 800 of the Revised Statutes (U. S. leged to have been violated to their prejuComp. Stat. 1901, p. 623), which provides : dice. It was quite sufficient that they should “Jurors to serve in the courts of the United assert rights under those acts, and that the States, in each state respectively, shall have rights so claimed were denied to them. the same qualifications, subject to the pro- Crowley v. United States, 194 U. S. 461, visions hereinafter contained, and be en- 462, 48 L. ed. 1075, 1077, 24 Sup. Ct. Rep. titled to the same exemptions, as jurors of 731. the highest court of law in such state may The government, however, contends that have and be entitled to at the time when the motion in arrest of judgment came too such jurors for service in the courts of the late, and in support of that view cites the United States are summoned; and they following language from United States v. shall be designated by ballot, lot, or other-Gale, 109 U. S. 65, 69, 27 L. ed. 857, 358, 3 wise, according to the mode of forming such Sup. Ct. Rep. 1, 4: "Much more would it juries then practised in such state court, so seem to be requisite that all ordinary objecfar as such mode may be practicable by the tions, based upon the disqualification of parcourts of the United States or the officers ticular jurors, or upon informalities in thereof. And for this purpose the said summoning or impaneling the jury, where courts may, by rule or order, conform the no statute makes proceedings utterly void, designation and impaneling of juries, in sub- should be taken in limine, either by chalstance, to the laws and usages relating to lenge, by motion to quash, or by plea in jurors in the state courts, from time to time abatement. Neglecting to do this, the dein force in such state."

fendant should be deemed to have waived It was also its duty, in such prosecutions, the irregularity.” Wharton, Crim. Pl. & Pr. to conform to the act of Congress of June $$ 344, 350, 426. But, in the same case, 30th, 1879 (21 Stat. at L. 43, chap. 52, U. the court said what is pertinent to the presS. Comp. Stat. 1901, p. 624), which provides ent discussion: "There are cases, undoubtthat jurors to serve in the courts of the edly, which admit of a different consideraUnited States "shall be publicly drawn from tion, and in which the objection to the a box containing, at the time of each draw-grand jury may be taken at any time. ing, the names of not less than three hun. These are where the whole proceeding of dred persons, possessing the qualifications forming the panel is void, as where the jury prescribed in § 800 of the Revised Statutes, is not a jury of the court or term in which which names shall have been placed therein the indictment is found; or has been selectby the clerk of such court and a commis-ed by persons having no authority whatever sioner, to be appointed by the judge thereof,' to select them; or where they have not been sworn; or where some other fundamental cause of the laches of the defendant in not requisite has not been complied with.” sooner taking possession of the property un. Here the objection to the grand jury was,

der a patent issued to his ancestor under the

treaty of May 10, 1854 (10 Stat. at L. 1053), in substance, that it was not such a body

with the Shawnee Indians, although a de as could legally find an indictment. This mand is made by 'a cross-petition that the view rests upon the ground that the names title be quieted, and that plaintiffs be enwere placed in the box by a jury commis

joined from setting up or making any claim sioner and by a deputy clerk, the latter, it

to the property. is contended, having no authority to act at all in such a matter in place of the clerk,

[No. 200.] because the statute required the joint action of a commissioner and the clerk of the Submitted April 6, 1905. Decided May 1,

1905. court. If, therefore, the requirement that the grand jurors should be selected by the commissioner and the clerk was a funda- INERROR to the Supreme Court of the mental requisite, that is, if the deputy

State of Kansas to review a judgment clerk, in the absence of the clerk, had no au- which affirmed a judgment of the District thority, under any circumstances, to act, Court of Wyandotte County, in that state, then the inotion in arrest of judgment did in favor of plaintiff's in an action of ejectnot come too late. There are authorities ment. Reversed and remanded for further which give some support to the view that proceedings. this requirement is of substance, and not a See same case below, 66 Kan. 557, 72 Pac. mere “defect or imperfection in matter of 243. form only." Rev. Stat. § 1025, U. S. Comp. Stat. 1901, p. 720; Hulse v. State, 35 Ohio

Statement by Mr. Justice Brown: St. 421. Whether this position be well This was an action of ejectment brought taken or not we do not stop to consider; September 22, 1900, in the district court of for, assuming that the motion in arrest of Wyandotte county by defendants in error, judgment was made in time, and assuming who were plaintiffs below, to recover poseven that the court, as matter of law, erred session of certain lots of land in the city of in its interpretation of the statute, still the Argentine. The case was tried upon an accused cannot avail themselves here of that agreed statement of facts, substantially as error, for the record does not show any ex- follows: ception taken to the overruling of the mo- The land was patented December 28, 1859, tion in arrest of judgment. By not except to Susan Whitefeather, as the head of a ing to the ruling of the court the accused family, consisting of herself and her son, must be held to have acquiesced in it, and George Washington, who were members of to have waived the objection made to the the Shawnee tribe of Indians. The patent grand jury. We perceive no reason why was issued under the treaty of May 10, they could not have legally waived an ob- 1854 (Indian Treaties, p. 792 [10 Stat. at jection based upon the grounds stated in L. 1053]), with the Shawnees. Whitefeaththe motion.

er died prior to July 10, 1862, and her son, This disposes of the case; for the assign- George Washington, inherited the land. On ments of error present no other question November 27, 1867, he being then fourteen that needs to be noticed. Besides, counsel years of age, the probate court of Johnson for the accused have properly confined their county appointed Jonathan Gore as his discussion of the case to the question of the guardian, though the land was in Wyanjurisdiction of this court, and to the ac- dotte county. In these proceedings Washtion of the court below in overruling the ington is described as the minor heir of motion in arrest of judgment. The judg. George and Judy Washington. Under such ment is affirmed.

appointment the guardian sold the land to one Joel F. Kinney for $2,000, executing to

him a guardian's deed, which was approved (198 U. S. 166)

by the Secretary of the Interior May 21, R. R. DUNBAR et al., Plffs. in Err.,

1869, and the title so acquired by Kinney passed by a series of conveyances to the

plaintiffs Green. In these proceedings for LUCRETIA L. GREEN et al.

a sale Gore described himself as guardian Ejectment plaintiff must

of George Washington, the minor heir of recorer

Susan Whitefeather, deceased. Washington strength of his own title-effect of cross

remained a member of the Shawnee tribe petition.

until September 26, 1900, when he was made Plaintiffs in ejectment who have neither a valid a citizen of the United States. He took no

title nor prior possession cannot recover be-' steps to impugn the validity of the guard.

V.

on

ian's deed until June 25, 1895, when, ac- , which is assumed by the supreme court to cording to the agreed statement of facts, the be void. The plaintiffs did not show that defendant Dunbar took possession of the they were ever in possession of the land, land as his agent. Up to this time it had which appears to have been vacant and unremained vacant and unimproved. Plain- occupied until Dunbar took possession for tiffs recovered judgment, which was af- the defendant Washington, in June, 1895. firmed by the supreme court. 66 Kan. 557, The plaintiffs are not shown to have exer72 Pac. 243.

cised acts of ownership, or even to have paid

taxes. We do not understand the materialMessrs. L. F. Bird and H. G. Pope for ity of the suggestion that the defendants plaintiffs in error.

have lost their rights to the land by the No brief was filed for defendants in error. laches of George Washington, the Indian.

Laches is a defense often set up in courts of Mr. Justice Brown delivered the opinion equity in bar of plaintiffs' claim, but here of the court:

it is set up by the plaintiffs, as a weapon of The deed of Jonathan Gore, guardian, to attack, although the defendants are the Joel F. Kinney, dated October 14, 1868, of only parties who are or have been in posproperty situated in Wyandotte county, was session of the land. They have shown plainattacked upon the ground

tiff's' title to be void, and that they have 1. That Gore was never appointed guard- been in possession of the land for five years. ian of the defendant, George Washington, They are entitled to stand upon their rights. who was the son of Susan Whitefeather, As the deed was void, no affirmative action but was appointed by the probate court of on the part of George Washington was necJohnson county as the guardian of George essary. Indeed, as plaintiffs took no acWashington, while another person, named tion under the guardian's deed to Kinney for Elizabeth Longtail, was, on July 9, 1862, over thirty years, it would appear that they appointed by the probate court of Wyan- were guilty of greater and more inexcusable dotte county the guardian of apparently an- delay than the defendants. other George Washington, the minor son of The only difficulty arises from the crossGeorge and Judy Washington, who lived and petition of the defendants, incorporated with owned land in that county. Indeed, the their answer, in which they demand that records are in a hopeless state of confusion. their title be quieted, and that plaintiffs be

2. Because the guardian's deed was ex- enjoined from setting up or making any ecuted and delivered five months before he claim to the property. If this were an orighad obtained authority from the probate inal petition by defendants in possession, to court to make it.

remove a cloud from their title, it is en3. Because the petition of the guardian tirely possible that the court might find that to sell the land did not describe the prop- they had been guilty of such laches as erty, and because it was void on its face. would disentitle them to recover; but the

Not only did this not involve a Federal petition of plaintiffs in the case is an ordiquestion, but, in its opinion, the court as-nary petition in ejectment, praying for possumed, for the purposes of the case, that session of the land as against the defendthe guardian's deed was void for want of ants, for damages, and for an injunction jurisdiction, and placed its decision solely pending trial. The case was tried by the upon the ground that Washington had been court without a jury, as an ordinary action guilty of such laches as would bar recov. of ejectment, and recovery decreed in fa

vor of the plaintiff's for possession of the The only Federal question turns upon the property, with costs. No mention was made right of George Washington, a Shawnee In- in the opinion or judgment of the cross-pedian, and one of that class of persons who tition of the defendants. are aptly described as "wards of the na- We do not see how the case can be treattion,” to avail himself of the Whitefeathered other than as an ordinary action of patent, notwithstanding his assumed laches ejectment. In the case of Cheesebrough v. in taking possession thereunder. We are Parker, 25 Kan. 566, it was held that where, much embarrassed by the failure of the de- under the practice in Kansas, an action is fendants in error to file a brief. But we do commenced for the recovery of real estate, not understand how the defense of laches the right of the plaintiff to demand a secis pertinent to the case. The action is ond trial under the statute is not taken ejectment. The plaintiffs must recover on away by the addition to the petition of a the strength of their own title, and not claim for mesne profits, nor by the fact upon the weakness of the defendants'. The that the defendants set up an equitable deonly title set up by the plaintiffs is that fense and claimed equitable relief in the derived from the deed of Jonathan Gore, answer. In delivering the opinion of the guardian of the defendant Washington,' court, Mr. Justice Brewer, now of this

ery.

court, observed: “Under a general denial" cision on non-Federal ground-right or (in an action of ejectment) "every possible immunity claimed under Federal statute defense may be interposed. If, instead of -effect of certificate of state court. such general denial, the defendant sets out in detail an equitable defense, this does not 1. The Supreme Court of the United States change the character of the action or

will not take jurisdiction of a writ of error

directed to a state court, where the judgment abridge the rights of the plaintiff. It is a

of that court rests on two grounds, one of grand mistake to suppose that by setting which does not involve a Federal question, up in an answer an equitable defense to an or where it does not appear on which of the action for the recovery of real estate, either two grounds the judgment was based, and the the plaintiffs' right to a jury trial, or a

non-Federal ground is sufficient in itself to second trial, under the statute, can be 2. The defense in an action against the maker

sustain the judgment. abridged. Whatever effect such defense may

of a promissory note given in consideration have upon defendants' rights, the plaintiffs' of a promise to have the cigars called for by are unchanged. They have commenced an a certain contract manufactured in Key West, action under the statute for the recovery of

that it was contemplated that such cigars

were to be removed from the factory withreal property, and no rights given by such

out compliance with the regulations prestatute can be taken away by the character

scribed by U. S. Rev. Stat. $$ 3390, 3393, or form of the defense.” The substance of 3397 (U. S. Comp. Stat. 1901, pp. 2218, 2220, the opinion is that an action of ejectment 2222), does not amount to the special assermust be tried as at law, notwithstanding

tion of a right, title, privilege, or immunity that an equitable claim or defense is set up

under a Federal statute, within the meaning

of § 709, authorizing writs of error from the by one of the parties.

Supreme Court of the United States to state Had the plaintiffs taken possession of the courts, since defendant could derive no perland under their guardian's deed, and an ac

sonal rights under those sections to enforce tion been brought by the Indian, they might

the repudiation of his note, even though, on

grounds of public policy, it was illegal and perhaps have pleaded in defense laches or

void. the statute of limitations; but as the prop-3. The certificate of the chief justice of the erty remained vacant and unimproved for highest state court that the judgment of that over twenty years, we do not see why the court denied a title, right, privilege, or imdefendants do not stand in a position to

munity specially set up and claimed under

a Federal statute is not in itself suficient to avail themselves of the fact that the plain

confer jurisdiction on the Supreme Court of tiff's' only title is derived from a void deed,

the United States of a writ of error to that especially in view of the fact that the de

court. fendant Washington shows a patent to the land to his mother, Susan Whitefeather, and

[No. 523.] that he is her only heir. The record presents the curious anomaly of a recovery by Submitted April 3, 1905. Decided May 1, plaintiff's, who have neither title nor prior

1905. possession, against defendants, who have both.

N ERROR to the Supreme Court of the Had the defendants, after taking posses- State of Florida to review a judgment sion, filed a bill to quiet their title and re-which affirmed a judgment of the Circuit move the cloud created by the guardian's Court of Monroe County, in that state, susdeed, a different question would have been taining demurrers to the pleas in an action presented.

against the maker of certain promissory The judgment of the Supreme Court of notes. Dismissed for want of jurisdiction. Kansas is, therefore, reversed, and the cause remanded to that court for further proceed- Statement by Mr. Chief Justice Fuller: ings not inconsistent with this opinion. This was an action upon two promissory

notes for $2,500 each, payable to Horace R. (198 U. S. 149)

Kelly, indorsed to the Horace R. Kelly & GEORGE W. ALLEN, Administrator of the Company, Limited, and by that company in

Estate of John J. Philbrick, Deceased, dorsed to the firm of which Arguimbau was Piff. in Err.,

survivor. V.

Many pleas were interposed in defense, FRANK M. ARGUIMBAU, as Surviving and, among them, several filed March 24,

Partner of the Copartnership Composed of 1900, and several filed February 2, 1903. Frederick A. Schroeder, Edwin A. Schroed- | By the first of these pleas, defendant below, er, and Frank M. Arguimbau, Doing plaintiff in error here, averred “that on or Business under the Firm Name and Style about the 18th day of March, A. D. 1893, of Schroeder & Bon.

Horace R. Kelly, claiming to be a manufac

turer of cigars, agreed with John Jay PhilError to state court-Federal question-de-brick, during his lifetime, that if he, the

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