CRIMINAL LAW.

1. An affidavit, under section 878 of the Revised Statutes, by a person
indicted, setting forth that certain testimony is material to his defence
and that he is without means to pay the witnesses, and praying that
they may be summoned and paid by the United States, is not a
"pleading of a party," nor discovery or evidence obtained from a
party or witness by means of a judicial proceeding," which cannot, by
section 860, be given in evidence against him in a criminal proceeding.
Tucker v. United States, 164.

2. On a trial for murder of a woman by shooting, the jury were instructed
that if the defendant, at the time of the killing, although not insane,
was in such a condition, by reason of drunkenness, as to be incapable
of forming a specific intent to kill, or to do the act that he did do, the
grade of his crime would be reduced to manslaughter. Held, that he
had no ground of exception to a refusal to instruct that if at the time
of the killing he was so drunk as to render the formation of any
specific intent to take her life impossible of his part, and before being
drunk he entertained no malice towards her and no intention to take
her life, he could not be convicted of murder. Ib.

3. In Utah it is not necessary that an indictment for murder should charge
that the killing was unlawful. Davis v. Utah, 262.

4. An indictment which clearly and distinctly alleges facts showing a
murder by the unlawful killing of a human being with malice afore-
thought is good as an indictment for murder under the Utah statutes,
although it may not indicate upon its face, in terms, the degree of
that crime, and, thereby, the nature of the punishment which may be
inflicted. Ib.

5. The indictment in this case sufficiently charged the crime of mur-
der. Ib.

6. After the verdict of the jury that the defendant was guilty of murder in
the first degree, the court, the defendant being present, announced that
he had been convicted of murder in the first degree without any rec-
ommendation, and, as he elected to be shot, therefore it was ordered,
adjudged, and decreed that he be taken, etc., and shot until he was
dead. Held, that this was a full compliance with the requirements of
the statutes of Utah. Ib.

7. Whether or not a particular homicide is committed in repulsion of an
attack, and, if so, justifiably, are questions of fact, not necessarily
dependent upon the duration or quality of the reflection by which the
act may have been preceded. Hickory v. United States, 303.

8. Allen v. United States, 150 U. S. 151, followed in condemning the doc-
trine as impracticable, which tests the question whether a person on
trial for murder is entitled to excuse on the ground of self-defence, or
exceeded the limits of the exercise of that right, or acted upon unrea-
sonable grounds, or in the heat of passion, by the deliberation with
which a judge expounds the law to a jury, or the jury determines the

facts, or with which judgment is entered and carried into execu-
tion. Ib.

9. The provision in Rev. Stat. § 1024, that "when there are several charges
against any person for the same act or transaction, or for two or more
acts or transactions connected together, or for two or more acts or
transactions of the same class of crimes or offences, which may be
properly joined, instead of having several indictments, the whole may
be joined in one indictment, in separate counts, and if two or more
indictments are joined in such cases, the court may order them to be
consolidated," leaves the court to determine whether, in a given case,
a joinder of two or more offences in one indictment is consistent with
settled principles of criminal law, and also free to compel the prosecu-
tion to elect under which count it will proceed, when it appears from
the indictment or from the evidence, that the prisoner may be embar-
rassed in his defence, if that course be not pursued. Pointer v. United
States, 396.

10. When an indictment contains two counts charging the commission of
two murders, committed on the same day, in the same county and
district, and with the same kind of instrument, the court is justified in
forbearing at the beginning of the trial, and before the disclosure of
the facts, to compel an election by the prosecutor between the two
charges. Ib.

11. When, in the case of such joinder, it is developed in the course of the
trial that the accused was not confounded in his defence by the union
of the two offences in the same indictment, and that his substantial
rights will not be prejudiced by the refusal of the court to compel the
prosecutor to elect upon which of the two he will proceed, the court
is justified in such refusal. Ib.

12. All the panel of jurors were examined as to their qualifications, and
thirty-seven were found not liable to objection for cause. The de-
fendant was in court during this examination, was face to face with
the jurors so examined, and had an opportunity to participate in the
examination to such extent as was necessary for him to ascertain
whether any of them were liable to objection for cause, and was at
liberty to strike from the list of those thus found to be qualified the
names of the persons, not exceeding twenty, whom he did not wish to
serve on the jury. Held, that, the prisoner having been thus brought
face to face with the jury during these proceedings, the proceedings
were regular. Ib.

13. Lewis v. United States, 146 U. S. 376, adhered to and distinguished
from this case. Ib.

14. The mode of designating and empanelling jurors for the trial of cases
in the courts of the United States is within the control of those courts,
subject only to the restrictions prescribed by Congress, and to such
limitations as are recognized by settled principles of criminal law to
be essential in securing impartial juries for the trial of offences. Ib.

15. A prisoner on trial in a Federal court under indictment for murder is
not entitled as of right to have the government make its peremptory
challenges before he makes his, although it is within the discretion of
the court to direct it; and when the laws of the State in which the
trial takes place prescribe such a course, the court may pursue that
method or not as it pleases. Ib.

16. It is not indispensable to conviction for murder that the particular
motive for taking the life of a human being shall be established by
proof to the satisfaction of the jury. Ib.

17. When the record in a criminal case shows fully the crime for which
the prisoner was indicted and all the proceedings thereon, through
trial and verdict up to conviction and sentence, the failure in the sen-
tence to name the crime for which the prisoner is sentenced may be
supplied by reference to the rest of the record. Ib.

18. Whether a court of the United States, in the absence of authority con-
ferred by statute, has the power, after passing sentence in a criminal
case, to suspend its execution indefinitely, and until the court in its
discretion removes such suspension; Quære. Ib.

See HABEAS CORPUS.

CUSTOMS DUTIES.

1. If words used in a statute imposing duties on imports had at the time
of its passage a well-known signification in our trade and commerce,
different from their ordinary meaning among the people, the commer-
cial meaning must prevail, unless Congress has clearly manifested a
contrary intention; and it is only when no commercial meaning is
called for or proved, that the common meaning is to be adopted. Cad-
walader v. Zeh, 171.

2. The question whether small earthenware cups, saucers, mugs, and plates,
having on them letters of the alphabet and figures of animals or the
like, are "toys," within the meaning of Schedule N, and not "earthen-
ware," within Schedule B, of the act of March 3, 1883, c. 121, depends
upon the commercial meaning of the word "toys," if that differs from
the ordinary meaning. Ib.

3. Woven cotton cloth, the groundwork of which was uniform, and upon
which were figures or patterns, woven into it by means of a Jacquard
attachment contemporaneously with the weaving of the fabric, and
which was known as Madras mull, being imported into the United
States in 1886, became subject to the specific duties imposed by Sched-
ule I (paragraphs 319, 320, 321 in the customs enumeration) of the
tariff act of March 3, 1883, c. 121, 22 Stat. 488, estimated by the num-
ber of threads to the square inch, and not to the ad valorem duty
imposed by the same schedule on manufactures of cotton not specially
enumerated. Hedden v. Robertson, 520.

DAMAGES.

Judgment affirmed with additional damages under Rev. Stat.
Rule 23 of this court. Texas & Pacific Railway v. Volk, 73.

See EXCEPTION, 1;

PATENT FOR INVENTION, 3, 4, 5.

EJECTMENT.

1010 and

1. Certain loose parol statements and certain hearsay evidence is held to
be inadmissible in this action of ejectment, either to fix the boundaries
of the defendant's deed, or to show the character and extent of his
alleged adverse possession. Maxwell Land Grant Co. v. Dawson, 586.
2. When the defendant in an action of ejectment sets up title under
adverse possession, it is competent for him to show that it was gen-
erally known in the neighborhood that he was in possession of the
disputed premises, and was generally regarded as their owner. lb.
3. When the description in the deed through which a plaintiff in ejectment
claims covers a large estate, as a whole, excepting from the grant such
tracts, "parts of said estate," warranted not to exceed a stated num-
ber of acres, "which the parties of the first part have heretofore sold
and conveyed," the burden of proof is on the plaintiff to show that the
land in suit does not come within the exception. Ib.

See JURISDICTION, D, 1.

EQUITY.

1. The United States granted lands to the State of Wisconsin, to aid in
the construction of railroads. The State granted a portion of these
lands to a company, called in the opinion of the court The Omaha
Company, for the purpose of constructing a defined railroad. It also
granted another portion of these to another company, called in the
opinion of the court the Portage Company, for the purpose of con-
structing another and different, and to some extent competing rail-
road. The latter grant was conditioned upon the completion of the
road by the grantee within a specified period. Work was begun upon
the Portage road, but in 1873 the company became embarrassed, and
then broke down. In 1878 the legislature of Wisconsin extended the
time for the construction of the Portage Company's road three years.
In 1881 a contract was made with A. for its completion, under which
work was resumed with vigor and was diligently prosecuted, with
every prospect that the road would be completed within the extended
time. In 1882, before the expiration of that extension, the legislature
of that State passed an act revoking the grant to the Portage Com-
pany, and bestowing it upon the Omaha Company. As a result of
this the work which A. was diligently performing under his contract
was arrested; he was prevented through the direct and active efforts
VOL. CLI-46

of the Omaha Company from completing his performance of it; the
profits which he would have received from it were lost to him; and the
land grant was wrested from the Portage Company. A. then com-
menced an action at law against the Portage Company, in which a judg-
ment was recovered by his administratrix. Execution thereon being
returned nulla bona, a bill in equity was filed in the Circuit Court of the
United States by the administratrix against the Omaha Company, to
reach the land grant in its hands. The bill charged that the Omaha
Company had conspired with and bribed certain officials of the Portage
Company, who, through circumstances named in the bill, had become
sole stockholders in that company, to wrest the land grant from the
Portage Company, and to prevent A. from completing his contract.
It set forth sundry steps in the alleged conspiracy, and charged that
the legislature of Wisconsin had been induced by the conspirators
to pass the act forfeiting the land grant and bestowing it upon the
Omaha Company. The defendant demurred and the demurrer was
sustained by the Circuit Court. Held, (1) That the demurrer ad-
mitted that A. had suffered the wrongs complained of in consequence
of the interference of the Omaha Company; (2) That it must be
assumed as conceded by the demurrer that the officials of the Portage
Company had been bribed by the Omaha Company to betray their
trust, and that the legislature had been induced by false allegations
to revoke the grant to the Portage Company and to bestow it upon
the Omaha Company; (3) That as the breaking down of the Portage
Company and the ruin of its contractor was the natural and direct
result of all this, the contractor could resort to equity to enforce against
the land grant in the hands of the Omaha Company the judgment
which he had obtained at law against the Portage Company; (4)
That it must be presumed that the legislature, in transferring the
grant to the Omaha Company, did not intend to affect thereby the
rights of the Portage Company against the Omaha Company in
the courts; (5) That as there was nothing in the words of the grant to
the Omaha Company which expressly tied up the granted land, it
passed to that company subject to seizure and sale in satisfaction of
any of its obligations; (6) That the Omaha Company, by reason of its
conduct in this matter, became, as to the creditors of the Portage
Company, a trustee ex maleficio in respect of this property. Angle v.
Chicago, St. Paul, Minneapolis & Omaha Railway Co., 1.

2. A. commenced an action against B. in Utah, to recover possession of a
tract of mining land. C., desiring to purchase the disputed tract,
agreed with B. to purchase it, a part of the purchase money to be paid
at the signing of the agreement (which was done), and the balance to
be paid on delivery of the deed, after determination of the action in
favor of B., C. to go into possession at once, but not to remove any ores
until delivery of the deed. A., on his part, then sold the disputed
premises to C. By a subsequent agreement C. agreed to pay the con-