is admissible; and its exclusion is not mere error but the denial of a
right secured under the Federal Constitution. Tinsley v. Treat, 20.
6. Removal for trial under § 1014, Rev. Stat.; procedure for.
A district judge of the United States on application to remove from the
district where defendant is arrested to that where the offense is triable
acts judicially and the provision of § 1014, Rev. Stat., that the pro-
ceedings are to be conducted agreeably to the usual mode of process
in the State against offenders has no application to the inquiry on ap-
plication for removal. Ib.
Whatever tends to diminish a plaintiff's cause of action or to defeat re-
covery in whole or in part amounts in law to a defense. Whitfield v.
Etna Life Ins. Co., 489.
See COURTS, 2;
INSURANCE, 2;
PRACTICE AND PROCEDURE, 8.
DEPARTMENT OF THE INTERIOR.
DINGLEY ACT.
See TERRITORY, 2.
DISTRICT OF COLUMBIA.
See CERTIORARI;
JURISDICTION, A 1;
TERRITORIES.
DUE PROCESS OF LAW.
See CONSTITUTIONAL LAW;
COURTS, 3;
JURISDICTION, A 6.
1. Election defined and differentiated from transfer.
Election is simply what its name imports; a choice shown by an overt act
between two inconsistent rights either of which may be asserted at the
will of the chooser alone. Transfer is different from election and re-
quires acts of a different import on the part of the owner and cor-
responding acts on the part of the transferee. Bierce v. Hutchins, 340.
2. Effect of attempting to exercise right to which party not entitled.
The fact that a party, through mistake, attempts to exercise a right to
which he is not entitled does not prevent his afterwards exercising one
which he had and still has unless barred by the previous attempt. Ib.
Statements of a witness, although based on hearsay, constitute evidence
in the cause unless seasonably objected to as hearsay. Schlemmer
v. Buffalo, R. & P. Ry. Co., 1.
JURISDICTION, A 6;
MARRIAGE;
EXEMPTIONS
See ACTIONS;
CONTRACTS, 3, 4;
CORPORATIONS, 1, 2.
1. Duty of courts after surrender has been made.
Although the surrender of a person demanded under an extradition treaty
has been made, it is the duty of the courts here to determine the legality
of the subsequent imprisonment which depends upon the treaties in
force between this and the surrendering governments. Johnson v.
Browne, 309.
2. Right of demanding country to try person for other than crime for which
extradited-Effect of treaty of 1842 with Great Britain.
While the treaty of 1842, with Great Britain, had no express limitation of
the right of the demanding country to try a person only for the crime
for which he was extradited, such a limitation is found in the manifest
scope and object of the treaty itself and it has been so construed by
this court. (United States v. Rauscher, 119 U. S. 407.) Ib.
3. Right of demanding country to punish person for offense other than that
for which extradited-Treaty of 1899 with Great Britain.
A person extradited under the treaty of 1899 with Great Britain cannot be
punished for an offense other than that for which his extradition has
been demanded even though prior to his extradition he had been con-
victed and sentenced therefor. Sections 5272, 5275, Rev. Stat., clearly
manifest the will of the political department of the government, that
a person extradited shall be tried only for the crime charged in the
warrant of extradition, and shall be allowed a reasonable time to de-
part out of the United States before he can be arrested and detained
for any other offense. Ib.
4. Effect of treaty of 1899 with Great Britain to repeal §§ 5272, 5275, Rev.
Stat.
Repeals by implication are never favored, and a later treaty will not be
regarded as repealing, by implication, an earlier statute unless the
two are so absolutely incompatible that the statute cannot be en-
forced without antagonizing the treaty, and so held that the treaty
with Great Britain of 1899 did not repeal §§ 5272, 5275, Rev. Stat. Ib.
5. Construction of treaties; good faith to be observed in.
While the escape of criminals is to be deprecated, treaties of extradition
should be construed in accordance with the highest good faith, and a
treaty should not be so construed as to obtain the extradition of a
person for one offense and punish him for another, especially when the
latter offense is one for which the surrendering government has refused
to surrender him on the ground that it was not covered by the treaty.
Ib.
See PRACTICE AND PROCEDURE, 7.
FEDERAL POWERS.
See CONSTITUTIONAL LAW, 9.
FEDERAL QUESTION.
See APPEAL AND Error;
CONSTITUTIONAL LAW, 3;
JURISDICTION.
FIFTH AMENDMENT.
See CONSTITUTIONAL LAW, 10.
FINDINGS OF FACT.
See PRACTICE AND PROCEDURE, 7.
See CONSTITUTIONAL Law, 6;
PERSONAL RIghts;
STATES, 2.
See MORTGAGES AND DEEDS OF Trust;
FOREIGN CORPORATIONS.
See JURISDICTION, A 8; B 2;
PROCESS;
STATES, 6.
FOURTEENTH AMENDMENT.
See CONSTITUTIONAL Law;
COURTS, 3.
FULL FAITH AND CREDIT.
See CONSTITUTIONAL LAW, 11, 12;
JUDGMENTS AND DECREES, 5.
GOVERNMENTAL POWER.
See CONSTITUTIONAL LAW, 9;
CONTRACTS, 4;
STATES, 1, 2.
GOVERNMENT INSTRUMENTALITIES.
See TAXES AND TAXATION, 2, 3, 4.
GRANTS.
See CONTRACTS, 4.
GREAT BRITAIN.
See EXTRADITION, 2, 3;
TREATIES.
HABEAS CORPUS.
See COURTS, 3.
HEARSAY EVIDENCE.
See EVIDENCE.
HOMESTEADS.
See PUBLIC LANDS, 1, 2.
HOMICIDE.
See CRIMINAL LAW, 1.
IMPAIRMENT OF CONTRACT OBLIGATION.
See CONSTITUTIONAL LAW, 5;
1. Allotments-Secretary of Interior to determine who are members of tribe-
Mandamus will not lie to control his decision.
While the promise of the United States to allot 160 acres to each member
of the Wichita band of Indians under the act of March 2, 1895, 28
Stat. 876, 895, may confer a right on every actual member of the band,
the primary decision as to who the members are must come from the
Secretary of the Interior; and, in the absence of any indication in the
act to allow an appeal to the courts for applicants who are dissatisfied,
mandamus will not issue to require the Secretary to approve the selec-
tion of one claiming to be an adopted member of the tribe but whose
application the Secretary has denied. West v. Hitchcock, 80.
2. Control by Department of Interior over adoption of whites into tribes.
In view of long established practice of the Department of the Interior, and
the undoubted power of Congress over the Indians, this court will
hesitate to construe the language of §§ 441, 463, Rev. Stat., as not
giving the Department of the Interior control over the adoption of
whites into the Indian tribes. Ib.
3. Jurisdiction of Secretary of Interior to determine right to select land.
Where the Secretary of the Interior has authority to pass on the right of
one claiming to be a member of a band of Indians to select land under
an agreement ratified by an act of Congress, his jurisdiction does not
depend upon his decision being right. Ib.
INDICTMENT.
See CRIMINAL LAW, 5;
JURISDICTION, A 5, 6.
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