upon this point. If the legislature of Oklahoma had prescribed the method of selection followed, that method would not have violated the Constitution or any law or treaty of the United States. If it did prescribe a different one, a departure from that was a violation of the territorial enactment alone. The acts of the legislature of Oklahoma are not laws of the United States within the meaning of Rev. Stat. § 753. If any laws have been violated it is the latter one. Therefore the petitioner is not entitled to release on this ground under Rev. Stat. §753. The Fifth Amendment, requiring the presentment or indictment of a grand jury, does not take up unto itself the local law as to how the grand jury should be made up, and raise the latter to a constitutional requirement. See Rawlins v. Georgia, 201 U. S. 638. It is unnecessary to consider whether the judge went beyond his powers under the circumstances. See Clawson v. United States, 114 U. S. 477. But it is proper to add that while the reason which we have given is logically the first to be considered by this court, we do not mean to give any countenance to the notion that if the law was disobeyed it affected the jurisdiction of the court. Ex parte Harding, 120 U. S. 782. In re Wilson, 140 U. S. 575.

The third ground on which the jurisdiction of the trial court is denied is, that, on August 4, 1901, the date of the commission of the crime, the place was within territory not embraced in any organized county, and was attached for judicial purposes to Canadian County. By the Oklahoma Organic Act, May 2, 1890, c. 182, § 9, 26 Stat. 85, 86, this is provided for, and by § 10 such offenses shall be tried in the county to which the territory "shall be attached.". It is argued that there had been no law passed changing the place of trial or affecting the order of the Supreme Court attaching the territory to Canadian County. But the very words quoted from § 10 look to the state of things at the time of trial. At that time Comanche County had been organized, and a term of court fixed for it by the order of the Supreme Court dated January 15, 1902. The meaning of this order, so far as the

power of the Supreme Court went, is plain. The statute gave the petitioner no vested right to be tried in Canadian County, and his trial in Comanche County conformed to its intent. See Post v. United States, 161 U. S. 583.

The fourth ground is, that, as the crime was committed on August 4, 1901, two days before the opening of the land for settlement, the place was still under the exclusive jurisdiction of the United States, and therefore the crime was punishable under Rev. Stat. § 5339 alone. The order of the President with regard to the conditions of settlement and entry are referred to as confirming the argument. But those orders were intended merely to carry out the acts of Congress governing the matter. There is no doubt that Congress was exercising. control so far as settlement was concerned. But there is equally little doubt that the title to the territory had passed, that it had become part of the Territory of Oklahoma, and, as such, no longer under the exclusive jurisdiction of the United States within Rev. Stat. § 5339. Act of May 2, 1890, c. 182, §§ 1, 4, 6, 26 Stat. 81; act of June 6, 1900, c. 813, 31 Stat. 677; act of March 3, 1901, c. 846, 31 Stat. 1093. See Bates v. Clark, 95 U. S. 204; Buster v. Wright, 135 Fed. Rep. 947, 952; Ex parte Moran, 144 Fed. Rep. 594, 602. Therefore the application of the territorial statute was not excluded and the murder was a violation of the territorial law.

Finally it is contended that the petitioner was compelled to be a witness against himself, contrary to the Fifth Amendment, because he was compelled to stand up and walk before the jury, and because, during a recess, the jury was stationed so as to observe his size and walk. If this was an error, as to which we express no opinion, it did not go to the jurisdiction of the court. Felts v. Murphy, 201 U. S. 123.

Rule discharged. Writs denied.

NORTHERN ASSURANCE COMPANY OF LONDON v. GRAND VIEW BUILDING ASSOCIATION.

ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA.

No. 40. Argued October 18, 19, 1906.-Decided November 5, 1906.

An adjudication in an action at law on a policy of insurance that the insured cannot recover on the policy as it then stood is not an adjudication that the contract cannot be reformed; and a court of another State does not fail to give full faith and credit to such a judgment because in an equity action it reforms the policy and gives judgment to the insured thereon as reformed.

Whether the obligation of the contract was impaired by a statute as construed is not open in this court if that objection was not taken below. 102 N. W. Rep. 246, affirmed.

THE facts are stated in the opinion.

Mr. Charles J. Greene, with whom Mr. Ralph W. Breckenridge was on the brief, for plaintiff in error.

Mr. Joseph R. Webster, with whom Mr. Halleck F. Rose and Mr. Wilmer B. Comstock were on the brief, for defendant in

error.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is a bill to reform a policy and to recover upon it as reformed. An action at law upon the same instrument, between the same parties, has come before this court heretofore. 183 U. S. 308. In that case it was held that the plaintiff could not recover. The question before us at the present time is whether the Supreme Court of Nebraska failed to give full faith and credit to the judgment in the former case by holding that it was no bar to the relief now sought. 102 N. W. Rep. 246.

The policy was conditioned to be void in case of other

insurance, unless otherwise provided by agreement indorsed or added; and it stated, in substance, that no officer or agent had power to waive the condition except by such indorsement or addition. There was other insurance and there was no indorsement. The plaintiff alleged a waiver and an estoppel. The jury found that the agent who issued the policy had been informed on behalf of the insured and knew of the outstanding insurance. But this court held that the attempt to establish a waiver was an attempt to contradict the very words of the written contract, which gave notice that the condition was insisted upon and could be got rid of in only one way, which no agent had power to change. The judgment based upon this decision is what is now relied upon as a bar. Metcalf v. Watertown, 153 U. S. 671, 676; Hancock National Bank v. Farnum, 176 U. S. 640, 645.

Whether sufficient grounds were shown for the relief which was granted is a matter with which we have nothing to do. But the state court was right in its answer to the question before us. The former decision of course is not an adjudication that the contract cannot be reformed. It was rendered in an action at law, and only decided that the contract could not be recovered upon as it stood, or be helped out by any doctrine of the common law. If it were to be a bar it would be so, not on the ground of the adjudication as such, but on the ground of election, expressed by the form in which the plaintiff saw fit to sue. As an adjudication it simply establishes one of the propositions on which the plaintiff relics; that it cannot recover upon the contract as it stands. The supposed election is the source of the effect attributed to the judgment. If that depended on matter in pais it might be a question at least, as was argued, whether such a case fell within either U. S. Const., Art. IV, § 1, or Rev. Stat. § 905. It may be doubted whether the election must not at least necessarily appear on the face of the record as matter of law in order to give the judgment a standing under Rev. Stat. § 905.

We pass such doubts, because we are of opinion that, however the election be stated, it is not made out. The plaintiff in the former action expressed on the record its reliance upon the facts upon which it now relies. It did not demand a judgment without regard to them and put them on one side, as was done in Washburn v. Great Western Insurance Co., 114 Massachusetts, 175, where this distinction was stated by Chief Justice Gray. Its choice of law was not an election but an hypothesis. It expressed the supposition that law was competent to give a remedy, as had been laid down by the Supreme Court of Nebraska and the Circuit Court of Appeals for the Circuit. Home Fire Insurance v. Wood, 50 Nebraska, 381, 386; Firemen's Fund Insurance Co. v. Norwood, 16 C. C. A. 136. So long as those decisions stood the plaintiff had no choice. It could not, or at least did not need to, demand reformation, if a court of law could affect the same result. It did demand the result, and showed by its pleadings that the path which it did choose was chosen simply because it was supposed to be an open way. Snow v. Alley, 156 Massachusetts, 193, 195.

A question argued as to the obligation of the contract having been impaired by a statute as construed, was not taken below and is not open here.

Decree affirmed.