added the $17,000 cash received from the Central Company, making a total of $727,846.50, and interest from January 1, 1885, for which the cross-defendant is liable, together with costs." Pullman's Car Company v. Transportation Co., 171 U. S. 138, 161, 18 Sup. Ct. 808, 817, 43 L. Ed. 108. Upon the principles of that decision, the Tacoma Smelting & Refining Company had no valid claim to recover from its lessee the profits of the smelting business while the plant was being operated by the latter company, nor to recover anything except property which it parted with on the faith of the contract, or the value of any part thereof which could not be restored, and I hold that the rights of the parties were reciprocal; that is to say, the right of the lessor to recover its property, or compensation for it, is not stronger in equity than the right of the lessee to have compensation for the investments which it made in betterments on the faith of the ultra vires contract. In the eyes of the law the two corporations were equally in fault, and a court of equity will not permit either to appropriate and retain property of the other unconscionably. It is true that the minority stockholders who protested against the lease are entitled to special consideration, and their rights are not exactly the same as the rights of their company. But even they have no standing in a court of equity to unjustly insist upon profiting by a forfeiture. Equity does not favor forfeitures. The value of their interests involved is to be measured by the value of their stock, as it would be unaffected by the ultra vires contract, and they have no just claim for anything more. This court would not uphold the trustees of a corporation in giving away its property or in creating fictitious debts, whereby the assets might be dissipated; but, in view of the decisions of the Supreme Court of the United States referred to, the trustees of the Tacoma Smelting & Refining Company were not obliged to yield to the demands of the minority stockholders to repudiate all liability to pay for permanent and unmovable additions to the smelting plant which were necessary to the successful operation thereof. The adjustment which was made is, in my opinion, neither unfair nor unlawful. I say it is not unfair, because the promoters will get back less than they put in, deductions were made of estimated depreciation in value of the improvements by use thereof, and a set-off for rent was allowed, and the complainants have not suffered by it in the diminution in value of their stock. They will not receive as large a dividend as they would if the court would lend itself to aid in the confiscation of property created by others, but the amount of their dividend will not be less than the probable value of their stock in 1898 or now, if the ultra vires contract had not been made, unless the amount shall be further diminished by reason of expensive litigation for which they only can be held to be responsible. I have considered the propriety of retaining the case for final liquidation after the action still pending in the superior court shall have been terminated, but to do so will delay an appeal for an indefinite time, and, in my judgment, it is expedient for the parties to have a final decree entered, which may be appealed from at once. By reason of an intimation from the court at the time of denying the application for appointment of a receiver, the sale of the smelting plant was postponed, and the terms of the sale were modified. For this reason, I hold that the costs should be divided. Let a decree be entered dismissing the case on the merits, and awarding to the defendants one-half of their taxable costs. RADFORD v. UNITED STATES. (Circuit Court of Appeals, Second Circuit. March 8, 1904.) No. 55. 1. FEDERAL COURTS-APPEAL-RECORD-REDUCTION. On an appeal to the Circuit Court of Appeals, where there is no question raised as to the credibility of any witness, or as to the weight of his testimony, and it is not important that the court should know just how the testimony was given, the testimony should not be printed in question and answer in the appeal record, but should be presented in narrative form. 2. CRIMINAL LAW-INDICTMENT-MOTION TO QUASH-EVIDENCE BEFORE GRAND JURY. The denial of a motion to quash an indictment, on the ground that it was based on incompetent evidence of essential facts before the grand jury is a matter of discretion, and is not a proper subject of exception. 6. SAME-AFFIDAVITS. The affidavit in support of a motion to quash an indictment on the ground that it was founded on incompetent testimony was to the effect that no other or different evidence than that given by deponent, which was objected to, was produced, or taken before the grand jury, pertaining to the question in issue, and that deponent was present "in and about the grand jury during the entire session thereof," was insufficient to show that no other testimony was introduced. SAME-JUrors-Order OF CHALLENGE OBJECTIONS-WAIVER. Where, in a criminal prosecution in the federal courts, there was a dispute between counsel, while the jury was being impaneled, as to the order in which their respective peremptory challenges should be used, but neither counsel called the court's attention to it, and the United States attorney reserved one of his challenges until after talesmen had been drawn, it was not error to permit the government's attorney to exercise such challenge after defendant's challenges had been exhausted. 5. STATE STATUTES-APPLICATION. Code Cr. Proc. N. Y. § 385, providing the order in which jurors drawn for the trial of criminal cases shall be challenged, is not binding on the federal courts sitting in that state for the trial of criminal cases. 6. SAME CONSPIRACY-EVIDENCE-OBJECTIONS. Where, in a prosecution for conspiracy, the court held that certain evidence introduced was admissible as against one of the conspirators only, and called the government attorney's attention explicitly to the fact that it was inadmissible as against the others, the admission of such evidence was not subject to exception on the part of the other defendants. 7. SAME. In a prosecution for conspiracy to defraud the United States by the execution of straw bail, the introduction of affidavits of justification could not be objected to under Rev. St. § 860 [U. S. Comp. St. 1901, p. 661], prohibiting the introduction of evidence obtained from a party or witness by means of a judicial proceeding, by any of the conspirators except those who made the affidavits. 8. SAME-ELEMENTS OF OFFENSE-Loss. In a prosecution for conspiracy to defraud the United States by the execution of straw bail, it was not necessary that the government should prove that the accused did not appear on the day required, since the government was defrauded when the accused were released on the strength of a recognizance, apparently good, but worthless in fact. 15. See Courts, vol. 13, Cent. Dig. § 908. 129 F.-4 In Error to the District Court of the United States for the Western District of New York. This cause comes here upon a writ of error to review a judgment of the District Court, Western District of New York, convicting plaintiff in error of a violation of section 5440, Rev. St. U. S. [U. S. Comp. St. 1901, p. 3676], which reads as follows: "5440. If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not less than one thousand dollars and not more than ten thousand dollars, and to imprisonment not more than two years." The two indictments, which were duly consolidated by order of the court and tried together, charged four persons-Radford, Parrish, McLaren, and James-with entering into an unlawful agreement and combination and conspiring together to defraud the United States. The details of the conspiracy were as follows: Two Chinamen-Moy Dong Gin and Aye Yub-were under arrest charged with having unlawfully entered the United States, and were each held for trial before a United States commissioner. It was charged that the defendants agreed together that adjournments should be asked for and application made to admit to bail, and that upon the fixing of the bail Parrish and James should offer themselves as sureties. All four of them knew that the proposed sureties were not worth anything above just debts and liabilities, and therefore, in order to enable them ostensibly to justify by specifying and describing property as their own, it was agreed that Radford should convey to James and McLaren should convey to Parrish certain pieces of real estate specifically set forth in the indictment, which property was so conveyed for no other purpose than to be referred to in the sureties' justification. It was further charged that the properties so conveyed were not worth any sum above the amount of the incumbrances thereon, that this was well known to all of the accused, and that the whole scheme was one to defraud the United States by securing the release of the Chinamen upon recognizances apparently good, but in reality worthless, so that upon the failure of the Chinamen to appear for trial the government would be defrauded of the amount of the recognizances. The acts charged to have been done in furtherance of the conspiracy were the conveyance by Radford to James of three lots on St. Lawrence avenue, Buffalo, and three lots on Stone street, Tonawanda, and by McLaren to Parrish of a lot on Crowley avenue, Buffalo; also the giving of recognizances by James and Parrish, with affidavits of justification referring to the pieces of property so conveyed. The bail was accepted by the commissioners, and the Chinamen released. The latter failed to appear for trial, and the recognizances were duly estreated. The four accused persons were tried together. The jury found Radford and Parrish guilty, and acquitted McLaren and James. C. A. Dolson, for plaintiff in error. Before LACOMBE, TOWNSEND, and COXE, Circuit Judges. LACOMBE, Circuit Judge (after stating the facts as above). Before entering upon a discussion of the points raised by assignment of errors and here argued, we must call attention to the character of the record presented to this court. It consists of 580 printed pages and a supplement of 96 pages in typewriting containing exhibits. The appeal is by Radford only, and there was no motion to direct acquittal as to him, or, indeed, as to any of the others. In view of the issues involved, the testimony is most voluminous, and it has been presented to us without the slightest effort to assist the court by concentrating its attention to the parts material to the assignments of error. Apparently it was thought that the only labor required of counsel was to fasten together the stenographer's min utes and the exhibits, and have them certified by the clerk of the District Court. In a note at the end of this opinion will be found a fair illustration of the result of such practice. Had this wearisome succession of question and answer been presented in narrative form, it is altogether probable that the record would have shrunk to a quarter, at least, of its present size, and this court have been spared the labor of winnowing wheat from chaff. Of course, there are many occasions when it is quite important to know just how the testimony was given, what hesitation there may have been on the part of a witness, what contradictions, how much of his answer was suggested by a question, so that there may be proper appreciation of the weight to be given to his testimony. But on this appeal there is no question raised as to the credibility of any witness or as to the weight of his testimony. Concededly, at the close of the case, all such questions were to be left to the jury, and they were so left. Counsel should appreciate that, although their first duty is to their client to see to it that everything material to that client's case, however trivial, is laid before the reviewing court, they also, as members of the bar practicing before that court, owe it a duty. We need not expatiate further on this point. It is thought—as it is hoped that those who read the footnote and these criticisms will hereafter be more careful to discharge their full duty as counselors of this court. Of the 25 errors assigned a few only have been presented in argument. These only need be discussed here. It is assigned as error that the court denied a motion to quash the indictments, which was based on the proposition that the grand jury acted upon incompetent evidence of the essential facts on which the charge was predicated, it appearing that a clerk in the office of the county clerk of Erie county (whose office is in Buffalo) attended before the grand jury in Lockport, and testified that upon a search of the records made by him he found certain deeds, mortgages, and judgments on file. It would be a sufficient answer to this assignment to call attention to the well-settled rule that such a motion is ordinarily addressed to the discretion of the trial court. The reason for entertaining motions to quash on grounds such as that above indicated is well set out in U. S. v. Farrington (D. C.) 5 Fed. 343: "No person should be subjected to the expense, vexation, and contumely of a trial for a criminal offense unless the charge has been investigated, and a reasonable foundation laid for an indictment or information." After conviction this reason no longer exists, because an intelligent and impartial jury of his peers, after a careful investigation, at which he has been represented by counsel, with full power to cross-examine, to introduce evidence, to tell his own story if he so choose, and to plead his cause, has reached the conclusion not only that there was a reasonable foundation for the charge, but that the charge was true. "The motion to quash was clearly determinable as a matter of discretion. It was preliminary in its character, and the denial of the motion could not finally decide any right of the defendant. The rule laid down by the elementary writers is that a motion to quash is directed to the sound discretion of the court, and, if refused, is not a proper subject of exception." U. S. v. Rosenberg, 7 Wall. 580, 19 L. Ed. 263. But, if this were not so, the motion to quash would be held to be wholly without merit. By reason of the circumstance that the one affidavit on which it was made was among the typewritten exhibits, it did not come to our attention on the argument, and for the future guidance of counsel in other causes it should now be referred to. The clerk from the county clerk's office, after setting forth what he testified to as to the records he had found on file, avers that no record or document from that office was taken to the grand jury, and that none were exhibited to him when he gave his testimony. The remaining portion of his affidavit is as follows: "That no other or different testimony or evidence [than his own] was produced or taken before said grand jury pertaining to the deeds, mortgages, or judgments appearing in the name of or against the said Ernest L. Parrish, as deponent verily believes; and the reason for his belief is that deponent was the only person from the said Erie county clerk's office before said grand jury; that deponent was present in and about the grand jury during the entire session of the said grand jury at the city of Lockport, as aforesaid; that deponent saw no books, records, or documents from said Erie county clerk's office before said grand jury at Lockport." The expression, "present in the grand jury during the entire session," is of dubious meaning, but, if it stood alone, it might be construed as averring that he was in the grand jury room from the beginning to the end of every one of their meetings when this case was considered. But the affiant manifestly makes no such claim. He swears only that he "was present in and about the grand jury.' How a person who is "about" a grand jury thereby becomes qualified to state everything which that body did and did not do is not apparent. How does he know that the grand jury did not have before them duly authenticated copies of every deed, mortgage, and judgment to which he testified? How does he know what other evidence they may have had of the transactions on which the charge was based? The belief of a person "present about a grand jury" is unimportant, and his assertion as to what took place in the grand jury room (except when he happened to be in it) is devoid of all weight. A motion to quash the indictments on such an affidavit as the one found among the exhibits was preposterous, and the effort to review the ruling of the trial judge thereon is frivolous. Error is assigned in that the court permitted the United States. attorney to excuse a particular juryman against objection. The record is not quite clear as to what occurred. It appears that after examinations on the voir dire, and the exercise of all defendants' peremptory challenges, there were less than 12 men in the box, and the panel was exhausted. Talesmen were summoned and examined, the box was filled, and defendants' counsel announced that they were content with the jury. There is nothing to show that the government had made a like announcement. Thereupon the United States attorney proceeded to ask some questions of one of the jurymen. Whether or not he was one of those who entered the box after defendants had exhausted their challenges does not appear. Objection was made that the prosecuting officer was "bound to exhaust |