est of the public health was to hamper district attorneys, curtail the powers of grand juries or make them, with evidence in hand, halt in their investigation and await the action of the Department. To graft such an exception upon the criminal law would require a clear and unambigvous expression of the legislative will.

It was argued that the privilege of a preliminary hearing was granted so as to prevent malicious prosecutions. But, had such been its intention, the statute would have required that a hearing should be given to all persons charged with a violation of the act, and not merely to those from whom the sample was received. A further answer is, that as to this and every other offense the Fourth Amendment furnishes the citizen the nearest practicable safeguard against malicious accusations. He cannot be tried on an Information unless it is supported by the oath of some one having knowledge of facts showing the existence of probable cause. Nor can an indictment be found until after an examination of witnesses, under oath, by grand jurors,—the chosen instruments of the law to protect the citizen against unfounded prosecutions, whether they be instituted by the Government or prompted by private malice. There is nothing in the nature of the offense under the Pure Food Law, or in the language of the statute, which indicates that Congress intended to grant violators of this act a conditional immunity from prosecution, or to confer upon them a privilege not given every other person charged with a crime. The judgment is

Reversed.

UNITED STATES AT THE RELATION OF KINNEY

v. UNITED STATES FIDELITY AND GUARANTY COMPANY.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD

CIRCUIT.

No. 664. Motion to dismiss or affirm. Submitted December 4, 1911.Decided December 18, 1911.

Where the effect of the denial of plaintiff's motion for judgment is simply to postpone consideration of the subject until the trial, plaintiff's interests are not prejudiced and there cannot be reversible error. Occurrences at the trial cannot be considered if the record contains no bill of exceptions.

A paper in the record signed by the plaintiff is not a bill of exceptions although styled exceptions to charge of jury and purporting to be initialed by the trial judge. Origet v. United States, 125 U. S. 243. Even if a part of the record were treated as a bill of exceptions if all matters therein depend for their solution upon examination of evidence not in the record, this court will affirm, not having any means for determining whether reversible error arose from the action of the court.

186 Fed. Rep. 477, affirmed.

THE facts are stated in the opinion.

Mr. Thomas Stokes and Mr. Bayard Henry, for defendant in error in support of the motion.

Mr. Robert D. Kinney, relator in propria persona, in opposition thereto.

Memorandum opinion by direction of the court. By MR. CHIEF JUSTICE WHITE.

The trial court instructed a verdict for the defendant,

and the court below affirmed its action. The suit was to recover upon the bond of a Clerk of a Circuit Court. 186 Fed. Rep. 477. We think a motion to affirm must prevail.

All the errors relied upon complain of a refusal to grant a motion of the plaintiff for judgment because of the insufficiency of "an affidavit of defense" and of various rulings made at the trial. Although the motion for judgment was denied, its merits were not passed upon, since the effect of the ruling was simply to postpone consideration of the subject until the trial, and therefore the exception which was formally allowed was simply "to the refusal by the court to decide the issue of law raised by plaintiff's motion for judgment," etc. But afterwards the defendant filed formal pleas to the statement of plaintiff's claim and joined issue thereon. As the ruling left it open to raise the question presented by the motion, it follows that the mere order of postponement did not prejudice and cannot possibly constitute reversible error. As to the contentions which relate to occurrences at the trial, they cannot be considered, as the record contains no bill of exceptions. The paper in the record styled "Exceptions to the charge to jury," initialed "J. B. McP., trial judge," and signed by the plaintiff, is not a bill of exceptions (Origet v. United States, 125 U. S. 240, 243), but if it were to be treated as a bill of exceptions, as all the matters therein referred to depend for their solution upon an examination of the evidence which is not in the record, it follows that we have no means of determining whether reversible error arose from an action of the court on any of the subjects to which the paper refers. This being the case, it becomes our duty to affirm.

Affirmed.

222 U.S.

Argument for Appellant.

LEWERS AND COOKE, LIMITED, v. ATCHERLY.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF

HAWAII.

No. 69. Argued December 4, 1911.-Decided December 18, 1911.

Where one asks the aid of a court of chancery in executing a former decree, he takes the risk of opening such decree for reëxamination. Lawrence Manufacturing Co. v. Janesville Cotton Mills, 138 U. S. 532. Of two former decrees adjudicating title to real estate, the Supreme Court of Hawaii having found that the earlier was right and bound all interests and that the later was wrong, this court affirms, seeing no reason for not following the local court.

Great weight should be attributed to the decision of the court on the spot, especially when ancient law is involved, such as existed in Hawaii before the annexation.

This court sustains the rule laid down by the Supreme Court of Hawaii that decisions of the Board of Land Commissioners of 1845 could not be attacked except by direct appeal to the Supreme Court of Hawaii as provided by law.

A decree establishing a will may determine who is entitled to testator's property without determining that a particular property belonged to the inheritance.

Where a case has not passed to a final decree one buying pendente lite from a party thereto stands no better than the vendor. Mellen v. Moline Iron Works, 131 U. S. 352.

18 Hawaii, 625; 19 Hawaii, 47, affirmed.

THE facts are stated in the opinion.

Mr. David L. Withington, with whom Mr. William R. Castle, Mr. W. A. Greenwell and Mr. Alfred L. Castle were on the brief, for appellant:

It was error to overrule the discretion of the Court of Land Registration in declining to reopen the decree of 1858. The court then had jurisdiction, the case was decided on the merits, and, whether the decree was right or wrong, the decision is now stare decisis, and property rights have been built up on the faith of that decree. Darling v. Westmoreland, 52 N. H. 401. See also as to other matters in

Argument for Appellant.

222 U.S.

discretion of the court, Central Trust Co. v. Locomotive Works, 135 U. S. 207; Davis v. Braden, 10 Pet. 286; Early v. Rogers, 16 How. 599; Slicer v. Bank of Pittsburg, 16 How. 571; McAllister v. Kuhn, 96 U. S. 87; United States v. Estudillo, 1 Wall. 710; Rio Grande Irrigation and Colonization Co. v. Gildersleeve, 174 U. S. 602.

No abuse of discretion on the part of the Land Court has been shown. Appellants have a legal title to the land, since it will be presumed that a deed has been executed, as adverse possession was found by the Land Registration Court, Kaai v. Mahuka, 5 Hawaii, 354; Fauntleroy's Heirs v. Henderson, 51 Kentucky, 447.

The equitable title is in appellant. Before the Mahele, land tenures were in one sense feudal, but by the Great Mahele the King surrendered the allodial ownership of the land, reserving certain portions to the crown, certain portions to the King personally, and certain portions for the public use. Commissioners were appointed, upon whom were conferred all private and public powers over property belonging to the King, who were only authorized to ascertain the claimant's kind and amount of title and to award for or against that title. Thurston v. Bishop, 7 Hawaii, 421; Art. IV, c. IV, Kamehameha III, 107.

At the time of making this award, April 10, 1849, the guardian had the absolute control and management of the ward's property, with the power to dispose of the same without the necessity of any order of court, and his failure to present a claim to the Commissioners was binding on the infant. Kamehameha v. Kahookano, 2 Hawaii, 118; Laanui v. Puohu, 2 Hawaii, 161.

Even had the guardian done his duty, the proceedings would have been the same, excepting that the award and the patent would have been issued to the guardian for the ward. Kalakaua v. Keaweamahi, 4 Hawaii, 577; Lono v. Phillips, 5 Hawaii, 357, 359; Kaaihue v. Crabbe, 3 Hawaii, 768; Jones v. Meek, 2 Hawaii, 9.