rather Mr. Walsh had a very bitter prejudice against Mr. Bliss. That was one reason, and one would be enough; but there was another, which was that as Mr. Bliss and I had antagonized each other upon this Kellogg case, and I was determined that this testimony, which I thought conclusive, should be fully developed before the grand jury, I did not deem it expedient that Mr. Bliss, who was apparently the friend of Mr. Kellogg (though probably disposed and willing to do his full duty), should be charged with the unpleasant office of bringing that man to justice.

Q. At the time Mr. Ker appeared and the indictment was found, what was the decision of the counsel as to the dates that should be placed in the Kellogg indictment and the offense that should be set forth in it?-A. As I had directed Mr. Ker to go before the grand jury, and had been instrumental throughout in obtaining Mr. Price as a witness, Mr. Ker very naturally looked to me for direction in reference to the indictment. We consulted upon the subject, and in, I think, our last consultation I told him how I thought the indictment should be prepared. I told him that the indictment should contain various counts, as many as he pleased, counting upon the post-office drafts that had been given by Mr. Price to Mr. Kellogg on or about the 18th of July, 1882, and which, according to Mr. Walsh's testimony, Mr. Kellogg had placed in his hands, as his, Kellogg's agent, to collect, and out of the proceeds to pay him, Kellogg, one-half, and to pay Mr. Brady the other half; and that the indictment should charge in these respective counts that Mr. Kellogg had received the one-half of those drafts on the respective days upon which the warrants that were issued upon the drafts were paid. And in order that there might be no misunderstanding between my junior and myself, and that the responsibility might rest where it belonged, I gave Mr. Ker a written statement as to how I wanted that indictment drawn. I dictated it and gave it to him, leav ing it discretionary with him as to how many indictments within a certain limit should be found, but specifically directing one or two, and the indictment is drawn, including the dates, according to my direction. A lawyer should never swear to his opinion, but, suspending for a moment the operation of the oath, I say that in my humble judgment, that is as good and solid an indictment as ever went into a court of justice.

Q. This [producing a paper] is the indictment, I believe?—A. I presume that is the indictment.

By Mr. STEWART:

The gist of the offense, as you directed the indictment to be drawn, was the receipt of the money?-A. Yes, sir.

Q. Not the delivery of the drafts, but the receipt of the money when the drafts were collected?-A. The delivery of the drafts by Mr. Price to Mr. Kellogg had taken place on the 18th of July, 1879. I was extremely anxious that an indictment should be found prior to the 18th of July, 1882, for the reason that on the 18th of July, 1882, the offense of agreeing to receive the money and of receiving the drafts would be barred by the statute of limitations; but, as no indictment was found prior to the 18th July, 1882, and we were dealing with the subject in the month of January, 1883, I directed the indictment to be found under that provision of the statute which says that whoever agrees to receive or receives money shall be guilty, &c., and therefore the date that was to be put into the indictment was the date upon which Mr. Kellogg received the money by the hand of his agent appointed to collect it. I regarded the delivery of the drafts as, in law, the delivery of any other

paper, a check or any other promise to pay money. The delivery of the paper in such cases is not the payment of the money; it is the transfer of the right or the possibility of getting the money at the time specified for you to get it in the paper delivered. Now, these drafts given by Mr. Price to Mr. Kellogg were drafts specifying that they were to be paid at certain dates and the payment was to be made out of the money derived from the fraud perpetrated on the Post-Office Department, probably in conjunction with Mr. Price and Mr. Kellogg, in increasing the pay upon certain routes. The drafts were drawn anterior to the date of the order of increase, I think, by two days, but they covered and specified the exact amount of the fraud which was to be perpetrated, and which was perpetrated two days after their date. Now, if you will look at the statute you will see that it provides for an agreement to receive and also for receiving money.

Q. What was the point on which the case went off?—A. I did not try the case.

Q. I thought you were present at the trial?-A. No, sir; I went into court some two or three weeks prior to the date of the trial. I was still in the cases and I went into court in response to a motion made by the defendant to have a day fixed for his trial. At that time we had been unable to find Mr. Walsh and could get no trace of him. We went into court and argued the motion. The court determined to fix a day for the trial. I thought the action of the court was not according to familiar precedent, in constraining the Government to go to trial when the Government stated it was not ready, and, immediately after the adjournment of court on that day, for reasons which I deemed sufficient, I withdrew from the case. Mr. Walsh was subsequently obtained, and the trial took place on the day fixed, but I was not present upon that trial. I withdrew from the case and from all the other star-route cases. By the CHAIRMAN:

Q. What is the section of the statute to which you refer?-A. The section to which I referred is section 1782, and is as follows:

No Senator, Representative or Delegate, after his election and during his continuauce in office, and no head of a Department, or other officer or clerk in the employ of the Government, shall receive, or agree to receive, any compensation whatever, directly or indirectly, for any service rendered or to be rendered to any person, either by himself or another, in relation to any proceeding, contract, claim, controversy, charge, &c., in which the United States is a party.

This indictment was prepared under that alternative provision of the statute which forbids the receiving of money for the purposes specified there either directly or indirectly; and the charge was that he had received the money on the day the money was paid.

Q. Was there any motion made while you were in the case to quash this indictment or to dismiss the suit?-A. Yes, sir.

Q. Did that involve the question as to these drafts?-A. It did involve them to some extent. There were a variety of motions made. I think that Mr. Ker and I spent nearly the entire month of July, 1883, in attendance upon the court, not every day, but every four or five days, in the argument of some motion or other made for the purpose of getting rid of this indictment.

Mr. BLISS. The chief motions came on toward the end of June.

The WITNESS. Yes, they come on in the end of June. Almost every possible motion that could be made against an indictment was made for the purpose of getting rid of this indictment, and they were argued very fully and very elaborately within the period I have indicated and

were uniformly overruled. After the court had overruled all these motions made within the time that I have mentioned, the latter part of June and July, if my recollection is right, the court fixed the case for trial on the second Monday of December.

Mr. KER. We notified them that it would be called up in October, but it was finally fixed for December.

The WITNESS. Yes, fixed for some time in December; and at that time some suggestion was made as to the insufficiency of the indictment on account of these allegations as to dates. I have not a very distinct recollection of that, but it is my remembrance that the court then indicated its opinion that the dates were correctly set forth under this act, and that the charge in the indictment was not a charge having reference to the 18th of July, 1882, when the drafts were delivered, but was a charge having relation to the dates on which the money was paid. Mr. KER. Yes.

By the CHAIRMAN:

Q. Assuming that Mr. Price appeared at that trial, and testified to matters which he had previously indicated in his affidavit that he would testify to, was the indictment so framed as to make his testimony admissible as a part of the res guesta of that case?—A. Mr. Chairman, you are asking me a question of law, not of fact.

Q. Yes. It seems that this case was disposed of after the hearing of Mr. Price's testimony; for the reason that that testimony did not fit the allegations in the indictment, and I want to know how that was.-A. Mr. Price's testimony, in my view of it (allow me to say that I have great respect for any opinion Judge Wylie may give), was testimony which did not go to the direct charge in the indictment of the payment of money to Mr. Kellogg, but was preliminary to that direct testimony, and was needed, in connection with Mr. Walsh's evidence, to make it a complete case. Mr. Price delivered the drafts to Mr. Kellogg on the 18th of July, 1882, and, as Mr. Price testified, those drafts were delivered in consideration of Mr. Kellogg's doing what the act of Congress that I have read, section 1782, denounces as a crime. Now, those drafts were not payments to Mr. Kellogg, but Mr. Kellogg took those drafts (Mr. Price having proved that he so received them) to Mr. Walsh and gave them to Walsh to collect for him, and when Mr. Walsh collected those drafts as Mr. Kellog's agent and received the money and paid it to Mr. Kellogg, that was the time and that was the transaction in which the actual criminality was involved. Of that Mr. Price was necessarily not cognizant; although he of course knew when the drafts would be paid at the time he delivered them.

Mr. STEWART. I see in looking at the indictment that in at least one count (I don't know how many counts there were in the indictment) or offense is charged in this way:

To wit, on the said nineteenth day of April, in the year of our Lord one thousand eight hundred and eighty, at the county and District aforesaid, and within the jurisdiction of the said court, did unlawfully take and receive from the said James B. Price the sum of one thousand five hundred dollars lawful money of the United States of America, of the value of one thousand five hundred dollars, of the money of the said James B. Price, as and for a fee, reward, and compensation in consideration of and payment for the said service rendered by him the said William Pitt Kellogg to him the said James B. Price, &c., &c.

Now, it appears that Price testified, not that he paid Kellogg the money, but that he had delivered him these drafts; and upon that Mr. Wilson seems to have moved to strike out the testimony, I suppose upon the ground that it did not sustain the allegation in the indictment.

The WITNESS. The testimony of Mr. Price did not go to the fact there read by you. The testimony of Mr. Price went to the fact that he had delivered a draft to Mr. Kellogg, or on a check, pretty much the same sort of a thing; for Price had control over the fund until the draft was paid. It was his money; he could have controlled it; he could have revoked those drafts or orders. Now, Mr. Kellogg takes the draft and gives it to Mr. Walsh. It is a draft upon Price's money, and Walsh gets that portion of Mr. Price's money which this draft authorized him to get, and gives it to Mr. Kellogg; therefore Mr. Kellogg received that money on the written instruction or order of Mr. Price at that date.

By the CHAIRMAN:

Q. Then Price's testimony was relevant to prove simply the antecedent facts?-A. The antecedent facts.

Q. Then how do you account for the failure of the case after the delivery of Mr. Price's testimony?—A. I did not try the case, Mr. Chair

man.

Q. I am aware of that fact; but can you account for the failure?— A. You are, gentlemen, all better lawyers than I am, and

The CHAIRMAN (interposing). Not at all. The Government selected you as its representative on account of your ability in that kind of business, and we desire to be enlightened.

The WITNESS. I am much obliged to you.

Q. Was there anything wanting in the indictment or any want of preparation by the Government which, in your judgment, caused a failure of justice at that particular place?-A. According to my best judgment, there was not. I am myself unable to account for the result of the case. I have not examined Judge Wylie's opinion. The indictment, as I have stated to you, Mr. Chairman, was prepared under my direction, and I have no doubt that Mr. Ker in the trial of the case did his duty in presenting it to the court. I do not know what he did do, but he is a faithful and a capable lawyer. A copy of one of the Price drafts, to which I have referred as having been handed by Price to Kellogg, has just been placed in my hands, and this is how it reads: $3,000.]

WASHINGTON, D. C., July 16, 1879.

The Auditor of the Treasury for the Post-Office Department

Will please pay to myself or order the sum of three thousand dollars and cents out of any moneys due me on route No. 31148, San Antonio to Corpus Christi, in the State of Texas, for the quarter ending March 31, 1880.

I certify that this is the only draft drawn on said route for said quarter.

Witness:

J. B. PRICE,

Contractor.

A. N. ZEVELY.

J. M. EDMUNDS,

Postmaster at Washington, Dist. of Col.

Drafts must be witnessed by a postmaster and one other responsible party. Drafts must be properly indorsed by the payee and all subsequent holders, with their post-office addresses, before they will be placed on file.

Drafts will be filed subject to fines, deductions, collections, the amount due the subcontractor, in accordance with the act of Congress approved May 17, 1878, and any claim or demand the Post-office Department may have against the contractor.

Then there are upon this paper two stamps, one reading:

Auditor's office, P. O. D., Oct. 23, 1879, pay division.

Now, this draft was drawn before the order was passed making the expedition on the route designated in the draft, for payment out of the amount that would become due at the date mentioned in the draft, that quarter, on account of the expedition, and was indorsed by Mr. Price; and, according to Mr. Price's statement, was, on the 18th of July, 1879, delivered to Mr. Kellogg, and, according to Mr. Walsh's statement, Mr. Kellogg delivered it to him and directed him to collect the money when it became due and to pay to him, Kellogg, $1,500 of it, and to pay to Mr. Brady $1,500 of it; and, according to my theory, when this draft was delivered by Mr. Kellogg to Mr. Walsh he became the agent of both Kellogg and Price; of the latter by reason of Mr. Price's indorsements on the back, to execute the written order in the draft, supplemented by the verbal order he received from Mr. Kellogg as the holder of the draft.

Q. Then the date of the offense in this indictment which went to trial was the payment of the money, and not the passage of the draft?—A. Yes, sir; the payment of the money and not the passage of the draft.

Q. Then, why was not that issue tried in the case?-A. That is more than I can tell you, Mr. Chairman. I did not try the case.

Q. There was no controversy in the case and no pleading that raised the question as to the passage of the drafts, but the question was as to the receipt of the money?-A. Yes, sir.

Q. Then the testimony of Price was only a part of the case, and a very small part of it, and did not really go to the merits of the case?-A. I myself had so regarded it.

Q. Was that the opinion of the Attorney-General when he decided to accept Mr. Price's testimony?-A. I so understood it, sir.

Q. At the time you had the consultation on that subject with the Attorney-General the statute of limitations had then run, had it not as to the passage of the drafts?-A. Unquestionably; the statute of limitations, as to the passage of the drafts, had barred indictment on that ground on the 8th of July, 1882.

Q. The only matter, then, to be decided, so far as the legal effect of this evidence was concerned, was as to whether the payment of the money was not indictable, as well as the passage of the drafts?—A. That was my judgment, sir.

Q. I think that was the judgment of the Attorney-Guneral?-A. I so understood it to be.

Q. Now, will you explain why it was that with your full knowledge of this case, and with your knowledge of this indictment, you did not continue in the case until the trial?-A. For reasons I deemed sufficient.

By Mr. FYAN:

Q. I understood you to say that when the court fixed a particular day upon which this case should be called, you felt that that was not the usual course of proceeding in such cases, and I understood you to give that as your reason for withdrawing.-A. On the day the court as signed a day for the trial of this case, after the counsel for the Govern ment, including the Attorney-General, who was present in court, had opposed the motion to fix a day, because our witnesses were not here and the Government was not ready, I deemed it expedient, for reasons which I thought ought to control me, to retire from the case.