Argument for Plaintiff in Error.

from sitting as a juror to try a prisoner for unlawfully obtaining money from the treasury of the town or county. It has not been contended before us, that our statute forbidding the allowance of a motion in arrest of judgment for a cause exist ing before verdict, unless it affects the jurisdiction of the court, is unconstitutional, nor that the rule which confines proceedings upon motions in arrest to matters apparent upon the record is in conflict either with the Federal or State Constitution. We are of opinion that there was no error in the proceedings in the superior court." 150 Mass. 334, 343.

The superior court thereupon sentenced the defendant to imprisonment in the house of correction for two years and six months, and he sued out this writ of error.

By the practice in Massachusetts, where a bill of exceptions or an appeal in matter of law is taken to the Supreme Judicial Court, the question of law only goes to that court, and the record, unless ordered up by that court, remains in the court below; and therefore this writ of error was addressed to the superior court. Mass. Pub. Stat. c. 150, §§ 7, 12; c. 153, § 15; McGuire v. Commonwealth, 3 Wall. 382; Bryan v. Bates, 12 Allen, 201, 205; Commonwealth v. Scott, 123 Mass. 418.

Mr. R. D. Weston-Smith (with whom was Mr. H. W. Chaplin on the brief) for plaintiff in error.

The composition of the grand jury and the traverse jury exclusively from the inhabitants of the county and town of Nantucket made them necessarily a partial tribunal. Impartiality is of course never absolute, but always relative. Nevertheless it is a requirement, and it is for the courts and under the Fourteenth Amendment for this court to draw the line in any given case. The plaintiff in error was presented by a grand jury and tried by a trial jury, composed exclusively of the town and county corporations against which his alleged crime was directed. This was in violation of the first principles of justice. These grand and petit jurors were all disqualified.

The position of the selectmen as acting prosecutors under a

VOL. CXLIV-37

Argument for Plaintiff in Error.

vote of the town made them incompetent, under the Fourteenth Amendment, to prepare the preliminary list of jurors. It made them incompetent to compose, in their individual capacity, substantially the whole town meeting held to revise that list and make it final. Seven men who were prosecuting the plaintiff in error for the offences finally embodied in the indictment against him made up a list, from which, exclu-" sively, was drawn the grand jury which indicted him, and from which was made up the trial jury. The fruits of this action are seen in the fact that eighteen out of the twentythree grand jurors were persons who had voted for the prosecution which these prosecutors were promoting before them. A grand jury so made up was as to this defendant a mere travesty of a grand jury, and was a nullity. The objection to it was jurisdictional; McGregor v. Crane, 98 Mass. 530; Richardson v. Welcome, 6 Cush. 331; and as such may be taken at any stage. When an objection of this character goes to the roots of the administration of justice, it is never too late to take it. This objection was one of such gravity that it could not be waived. Hopt v. Utah, 110 U. S. 574; Hill v. People, 16 Michigan, 351; Williams v. Ohio, 12 Ohio St. 622; Cancemi v. People, 18 N. Y. 128; Harris v. People, 128 Illinois, 585; McGregor v. Crane, cited above; Richardson v. Welcome, cited above.

If any state statute stands in the way of the plaintiff in error upon this point, it is, when it operates upon objections so important as are now made, in conflict with the Fourteenth Amendment, as unduly clogging remedies. Callan v. Wilson, 127 U. S. 540.

Even if this new question of fact does not, within the strictest meaning of the word "go to jurisdiction," it involves so gross an impropriety, and an abuse of the forms of justice so extreme as, in a proper exercise of judicial discretion, to vitiate the whole proceeding. Hopt v. Utah, cited above; Edson v. Edson, 108 Mass. 590; Oakley v. Aspinwall, 3 N. Y.

547.

The fact that eighteen out of twenty-three grand jurors had joined in the vote for the prosecution which was being

Opinion of the Court.

carried on before them by the agents of their town, whom they had helped to constitute such, made them, substantially, prosecutors, and disqualified them. Their action violated the first principle of justice: that no man shall be prosecutor and judge at the same time. This objection is, like the objection last referred to, of so vital a character that it cannot be waived. It is jurisdictional, or quasi-jurisdictional, and may be raised at any stage of the cause.

Mr. Albert E. Pillsbury, Attorney General of the State of Massachusetts, for defendant in error.

MR. JUSTICE GRAY, after stating the case as above, delivered the opinion of the court.

In order to give this court jurisdiction, under section 709 of the Revised Statutes, to review on writ of error a decision of the highest court of a State against a title, right, privilege or immunity claimed under the Constitution of the United States, it must, as observed by Chief Justice Waite in Spies v. Illinois, "appear on the record that such title, right, privilege or immunity was 'specially set up or claimed' at the proper time in the proper way." 123 U. S. 131, 181.

In the case at bar, the only ground, on which it has been argued that the judgment of the Supreme Judicial Court of Massachusetts should be reversed, is that the plaintiff in error has been deprived of his liberty without due process of law, in violation of the Fourteenth Amendment to the Constitution of the United States, because the grand jury by which he was indicted, and the traverse jury by which he was tried and convicted, were wholly composed of inhabitants of the town and county of Nantucket, which the indictment charged him with intending to defraud; and because the selectmen of the town, who prepared the jury list, and took the principal part in drawing the jurors, were at the same time actively promoting this prosecution.

No objection that the proceedings were in violation of the Constitution of the United States was taken in any form,

Opinion of the Court.

either expressly, or by any possible inference or implication, before verdict.

Nor was any such objection duly presented afterwards. In Massachusetts, as elsewhere, the errors suggested could not be availed of by motion in arrest of judgment, unless appearing on the face of the record. Commonwealth v. Edwards, 12 Cush. 187; Carter v. Bennett, 15 How. 354. And by the statutes of the State, the defendant was not entitled, after verdict, to object to the qualifications of the jurors, or to any irregularity in drawing them; nor could he move in arrest of judgment for any cause existing before verdict, and not affecting the jurisdiction of the court. Mass. Pub. Stat. c. 170, §§ 39, 40; c. 214, § 27. The objections taken did not affect the jurisdiction of the court in which the plaintiff in error was indicted and convicted, but only the regularity of the proceedings in obtaining the grand and traverse jurors. Ex parte Harding, 120 U. S. 782. The anomalous "exception to the jurisdiction," filed after verdict, was held, and rightly held, by the state court to be nothing but a motion in arrest of judgment under another name.

The judgment of the highest court of the State was put upon the ground that these objections were not open after verdict, independently of the opinion of that court that the objections had no merits. As that ground was sufficient to support the judgment, no federal question is involved, and this court has no jurisdiction. The case cannot be distinguished in principle from Baldwin v. Kansas, 129 U. S. 52.

Writ of error dismissed for want of jurisdiction.

Argument for Appellant.

WINDETT v. UNION MUTUAL LIFE INSURANCE COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.

No. 253. Argued March 31, April 1, 1892. — Decided April 18, 1892.

If a mortgagor, who has agreed by the terms of the mortgage that he will pay all taxes, and that the mortgagee, in case of sale for breach of condition, shall be allowed all moneys advanced for taxes, or other liens or assessments, with interest, neglects to pay taxes duly assessed, and the land is duly sold for the non-payment of such taxes, and the validity of the deed made to the purchaser is doubtful, the mortgagee, upon a bill for foreclosure, is entitled to be allowed a sum paid by him to buy up the tax titles, exceeding the amount of unpaid taxes and interest by a very small part only of the penalties accrued.

An agreement to pay an attorney at law a retainer for professional services which are never performed is not to be implied.

IN EQUITY, to foreclose a mortgage. The mortgagor having failed to pay the taxes on the mortgaged premises, they were sold for taxes. The mortgagee bought in the tax titles from the purchaser, and filed this bill to foreclose the mortgage. The mortgagor set up in reduction of the mortgage debt a claim for retainers as attorney at law of the mortgagee for services never performed, and further contested the allowance of the amount paid by the mortgagee to acquire the tax titles, on the ground that the sales were void, by reason of non-compliance with the provisions of the Statutes of Illinois in this respect. The master allowed the sum paid for the acquisition of the tax titles, and disallowed the amounts claimed for retainer, allowing only amounts for services actually performed. From the decree rendered on that basis the defendant appealed.

Mr. Arthur W. Windett in person for appellant.

I. The tax titles, sales and deeds were unlawful, null and void for want of the statutory notice to the occupants of the property in possession. Gage v. Bani, 141 U. S. 344.