Pacific Bank being credited as a depositor and | regard to any subsequent agreement between drawing on the Security Bank against the the cashiers of the two banks as to the holding checks; and although it was in accordance of the deposit by the Security Bank. The with that custom that Mr. Whitney, the cashier court ruled that the issues involved in such [231] of the Pacific Bank, sent the checks and drafts, second and third questions were immaterial; amounting to $10,967.95, to the Security Bank, and this court cannot hold otherwise, on the on Monday, May 22, 1882, to be cleared by it, facts set forth in the bill of exceptions. "Any drawing for the $11,008.20 at the time, and re- subsequent agreement" must have been made ceiving in return, on its own request, from the after the receiver had been actually appointed, Security Bank, a negotiable certificate of deposit and could not affect his rights. of that bank, payable to the order of Mr. Whitney on the return of the certificate properly indorsed; yet Mr. Whitney knew at the time of these transactions that the certificate of deposit for $10,000, given by him to the Security Bank nine days before, created an indebtedness of the Pacific Bank to the Security Bank for that amount, and was, though negotiable, presumably still held by that bank. It was in fact still held by it. The natural presumption was that, if the certificate were still held by the Security Bank, that bank would, as soon as it should learn that the Pacific Bank was closed to business, seek to retain out of the collections the amount of such certificate, and apply that amount to its payment.

The defendant objects that the rulings of the district court were made, and the verdict and judgment were rendered generally, on the plaintiff's declaration of three counts; and that the first count, which seeks to recover back the money deposited as an unlawful payment, is inconsistent with the second count, which seeks to recover on the certificate of deposit as a valid instrument.

It is a sufficient answer to this contention to say, that no objection was made to the declaration by way of demurrer or otherwise, at the trial or before, and no ruling on the subject was asked for at the trial, or was made the subject of an exception. No objection or exception was taken to the verdict, nor did the defendant request at the trial that the plaintiff should elect on which count he would ask a verdict; nor did the defendant request the court to ask the jury to state on which count of the declaration the verdict was rendered.

We see no inconsistency between the first and second counts of the declaration. They were in substance for the same cause of action; and the first count is clearly sufficient to support the verdict.

Judgment affirmed.

[233]

It is sufficient, under section 5242 of the Re-
vised Statutes, to invalidate such a transfer,
that it is made in contemplation of insolvency,
and either with a view to prevent the applica-
tion of the assets of the bank in the manner
prescribed by chapter 4 of title 62 of the Revised
Statutes, or with a view to the preference of
one creditor to another. Certainly, the transfer
in question was made in contemplation of in-
solvency, made as it was after the directors had
voted that the bank should go into liquidation,
and should be closed to business, and that a
receiver should be appointed; and it was made
with a view, on the part of the Pacific Bank
and of its cashier, who represented it and acted
for it in this transfer of its assets, to prevent
the application of its assets in the manner pre-
scribed by such chapter 4 of title 62, and with a C. LAWRENCE PERKINS ET AL., Execu-
view to prefer the Security Bank to other cred-
itors. The transaction, if allowed to stand,
could result in nothing else. The statute made
it void, although there was no such view on the
part of the Security Bank in receiving the
transfer of the assets, and although there was
no knowledge or suspicion at that time on the
part of the Security Bank that the Pacific Bank
was insolvent or contemplated insolvency, or
[232] was not doing business, or that its directors had
voted to close it, or that application was to be
made for a receiver; and although the transfer
took place before the application was actually
made to the comptroller for the appointment
of a receiver.

WILLIAM H. ROBERTSON, Collector, [233]
Plf in Err.,

There was no question of fact to be submitted to a jury. From the facts proved, the intent to prefer, on the part of the Pacific Bank, was a necessary conclusion; and it was correct in the district court to direct a verdict for the plaintiff. If any other verdict, on the facts proved, had been rendered, it would have been the duty of that court to set it aside.

Nor was there any error on the part of the district court in refusing to submit to the jury the second and third questions which the defendant requested the judge to submit to them. The bill of exceptions does not set forth what the "other evidence" given in the case was, in

v.

tors of CHARLES L. PERKINS, Deceased.

(See S. C. Reporter's ed. 233-238.)

Practice in United States Court-allegations of
pleadings—when admitted—exception — duty
on steel rail crop-ends.

1. Under section 914 of the Revised Statutes of the
United States, the practice and pleading in a civil
cause, other than an equity or admiralty cause, in
as may be to the practice and pleadings in the
the circuit court are required to conform as near
courts of the State within which such circuit court
is held.

2. In an action in such circuit court, which was
held in the State of New York, allegations of the
complaint not denied by the answer are to be taken
as true.

the plaintiff duly made and filed protest, and duly
3. Allegations of the complaint in this case, that
appealed to the Secretary of the Treasury, and that
the suit was brought in time, not denied in the an-
swer, are to be taken as true. The word "duly"
means, in a proper way, or regularly, or according

to law.

4. Where, at the close of plaintiff's evidence, defendant moved the court to direct a verdict for the shown facts sufficient to entitle him to recover, and defendant, on the ground that the plaintiff had not the motion was denied and defendant excepted. held that, as the defendant did not then rest his case but proceeded to introduce evidence, the exception failed.

5 Bessemer steel rail crop-ends, cut off from ster]

rail, come within the definition of steel, under the
provision of schedule C, of section 2502 of the Re-
vised Statutes as amended, and are liable to a duty,
when imported, of 45 per cent ad valorem.
[No. 672.]

Argued Jan. 15, 16, 1889. Decided Jan. 28,1889.

IN ERROR to the Circuit Court of the United
States for the Southern District of New
York, to review a judgment for plaintiff, for
duties illegally exacted on an importation of
Bessemer steel rail crop-ends, from England,
in August, 1884. Reversed.

The facts are stated in the opinion.
Mr. G. A. Jenks, Solicitor-General, for
plaintiff in error.

Mr. J. Langdon Ward for defendant in

error.

Mr. Justice Blatchford delivered the opinion of the court:

the United States, the practice, pleadings, and
forms and modes of proceeding in this case, in
regard to the complaint and the answer, were
required to conform, as near as may be, to the
practice, pleadings, and forms and modes of
proceeding existing at the time in like causes
in the courts of record of the State of New
York. By section 481 of the New York Code
of Civil Procedure, it is required that the com-
plaint shall contain "a plain and concise state-
ment of the facts constituting each cause of
action." Section 500 requires that the answer
shall contain "a general or specific denial of
each material allegation of the complaint con-
troverted by the defendant, or of any knowl-
edge or information thereof sufficient to form
a belief." By section 522, "Each material al-
legation of the complaint, not controverted by
the answer," "must, for the purposes of the
action, be taken as true."

This is an action originally brought in the The allegation of the complaint in this case Superior Court of the City of New York, and is, that the plaintiff "duly made and filed due removed by certiorari, by the defendant, into and timely protest in writing," and "duly apthe Circuit Court of the United States for the pealed to the Secretary of the Treasury," and [234] Southern District of New York. It was brought "that ninety days have not elapsed since the by Charles L. Perkins against William H. Rob- decision of the Secretary of the Treasury on the ertson, Collector of the Port of New York, to aforesaid appeal.' As none of these allegations recover $1,460 as duties illegally exacted on an were denied in the manner required by section importation of Bessemer steel rail crop-ends, 500 of the Code, they were, by section 522, to from England, in August, 1884. The defend- be taken as true; and no issue was joined upon ant exacted duties on the articles at the rate of any one of them. This is the ruling in regard 45 per centum ad valorem, amounting to $2,628. to these provisions by the Court of Appeals of The plaintiff claimed that the lawful rate of the State of New York. In Lorillard v. Clyde, duty was only 20 per centum ad valorem, or 86 N. Y. 384, the complaint alleged that, in $1,168. The complaint contained the allega- pursuance of a certain agreement, a corporation that the plaintiff duly made and filed tion "was duly organized under the laws of due and timely protest in writing against the this State," It was contended, on a demurrer said erroneous and illegal assessment and exac- to the complaint, that the agreement was illegal, tion of the said duty; that the plaintiff was because it provided that the parties thereto, compelled to pay the $1,460 in order to obtain consisting of five persons only, should form a possession of the merchandise; that he duly ap- corporation, whereas the statute contemplated pealed to the Secretary of the Treasury from that at least seven persons should unite in order the decision of the defendant ascertaining and to form a corporation. But the court held that liquidating the duties; and that ninety days the allegation that a corporation was duly orhad not elapsed, at the commencement of the ganized under the laws of this State," pursuant suit, since the decision of the Secretary of the to the agreement, imported that the requisite Treasury on such appeal. The answer of number of persous united for that purpose; the defendant did not deny the allegations of that it must be assumed that the corporation the complaint as to protest and appeal and the was regularly organized; and that it was undecision of the Secretary of the Treasury. The necessary for the plaintiff to show in his comjury found a verdict for the plaintiff. The par-plaint the precise steps taken to accomplish that ties consented in open court that the amount result. The word "duly" means, in a proper of the verdict might be adjusted at the custom way, or regularly, or according to law. house, under the direction of the court. The also Tuttle v. People, 36 N. Y. 431, 436, and amount was adjusted as of the date of the ver- cases there cited; Fryatt v. Lindo, 3 Edw. Ch. dict; and for that amount, with interest and 239; People v. Walker, 23 Barb. 304; People v. costs, in all $1,742.23, judgment was rendered New York, 28 Barb. 240; Burns v. People, 59 for the plaintiff. To review that judgment the Barb. 531; Gibson v. People, 5 Hun, 542. defendant has brought a writ of error.

At the close of the plaintiff's evidence, the counsel for the defendant moved the court to direct a verdict for the defendant, on the grounds, among others: (1) that the protest which was put in evidence by the plaintiff was served and filed before liquidation, and was, therefore, premature; (2) that no proof was offered or given that there was any appeal to the Secretary of the Treasury, or any decision on such appeal, and no proof of the date of such decision, to show that the suit was brought in time. The motion was denied, and the defendant excepted to the ruling.

Under section 914 of the Revised Statutes of

66

See

The plaintiff claimed, by his protest and at the trial, that the articles in question were liable to a duty of only 20 per centum ad valorem, under the provision of schedule C of section 2502 of the Revised Statutes, as amended by section 6 of the Act of March 3, 1883, chap. 121 (22 Stat. at L. 501), which imposes a duty of 20 per centum ad valorem on "mineral substances in a crude state and metals un wrought, not specially enumerated or provided for in this Act.' collector had imposed a duty of 45 per centum ad valorem on the articles, under the following provision of the same schedule C (22 Stat. at L. 500): "Steel, not specially enumerated or provided for in this Act, forty-five per centum ad

The

[235]

[236]

[237]

valorem: Provided, That all metal produced
from iron or its ores, which is cast and mallea-
ble, of whatever description or form, without
regard to the percentage of carbon contained
therein, whether produced by cementation, or
converted, cast, or made from iron or its ores,
by the crucible, Bessemer, pneumatic, Thomas-
Gilchrist, basic, Siemens-Martin, or open-hearth
process, or by the equivalent of either, or by
the combination of two or more of the proc-
esses, or their equivalents, or by any fusion or
other process which produces from iron or its
ores a metal either granular or fibrous in struct-
ure, which is cast and malleable, excepting
what is known as malleable iron castings, shall
be classed and denominated as steel."

At the close of the plaintiff's evidence, the
defendant moved the court to direct a verdict
for the defendant, on the further ground that
the plaintiff had not shown facts sufficient to
entitle him to recover. The motion was de-
nied by the court, and the defendant excepted
to the ruling. But, as the defendant did not
then rest his case, but afterwards proceeded to
introduce evidence, the exception fails. Acci-
dent Ins. Co. v. Crandal, 120 U. S. 527 [30:
740].

itself, made at the same time with the making
of the rail, they should return a verdict for the
defendant. The defendant excepted to that
part of the charge which stated that the only
question for the jury was whether the article
was wrought or unwrought metal; and also to [238]
that part which stated that if the article was a
mere excess of material in making steel rails,
it was not wrought metal in the sense of the
statute.

We are of opinion that the court erred in its dis-
position of the case, and its charge to the jury.
The motion to direct a verdict for the defend.
ant, on the ground that the article was not metal
unwrought, not specially enumerated or pro-
vided for in the statute, but was steel, specially
enumerated and provided for in the same stat-
ute, in a clause other than that regarding met-
als unwrought, ought to have been granted.
The article fell within the definition of steel,
given in the statute. The testimony showed
that it was metal produced from iron or its ores;
by the Bessemer process, within the definition
of the articles which the statute stated should
"be classed and denominated as steel." It was
none the less steel because it was an excess of
material, as the result of making steel rails, cut
off from the steel rail, and not suitable for use
in itself, without being remelted or reheated.
The charge of the court on this subject was
subject to the exception and objection made to

It results from these views, that the judgment below must be reversed, and the case be remanded to the Circuit Court with a direction to grant a new trial.

FRANK ELY, Appt.,

The plaintiff introduced evidence for the
purpose of showing that the article in question
fell under the denomination of "metal un-
wrought," not specially enumerated or provid-
ed for in the Act; and the defendant intro-it.
duced evidence to show the contrary. It ap-
peared by the evidence of the plaintiff, that the
crop-end of a Bessemer steel rail, such as the
article in question, was the imperfect end of a
rail, which was cut off to bring the remainder
down to a solid rail of regular length; that the
end thus cut off was of the same texture and
fabric with the rail which remained after such
end was cut off, and was made in the same THE NEW MEXICO AND ARIZONA
manner; and that the crop-end so cut off was
Bessemer steel. It also appeared that such ends,
when imported, were sold as an article of mer-
chandise in this country, and were sometimes
remelted in furnaces; and that they were some-
times used, after importation, for manufactur-
ing other articles by reheating them, without
their being remelted, and had a value as a man-
ufactured article, other than for the purpose of
remelting.

At the close of the testimony on both sides the defendant moved the court to direct a verdict for him, on the grounds that the plaintiff had not produced sufficient evidence to make a case; that there was no evidence that the imported articles were unwrought metal; and that they were steel, which was specially provided for in the statute. The motion was denied by the court, and the defendant excepted to the ruling.

The court charged the jury that the only question was whether the article was wrought or unwrought metal; that the word "wrought" meant wrought into something suitable for use,

and not merely wrought in some manner, by
being manufactured or treated; that, if the
article was a mere excess of material, left after
the making of steel rails, it was not wrought
metal, within the sense of the statute; that, if it
was something left over in excess of the mate-
rial, the jury were to return a verdict for the
plaintiff; but, if it was an article fit for use in

V.

RAILROAD COMPANY ET AL.

(See S. C. Reporter's ed. 291-294.)

Arizona Statute-action to quiet title-com-
plaint.

equitable relief may be granted in the same action
1. Under the Statutes of Arizona, both legal and
and may be administered through the intervention
of a jury or by the court itself, according to the
nature of the remedy sought.

any person owning real property, whether in pos
2. By the Act of the Territory of 1881, chap. 59,
session or not, in which any other person claims an
adverse title or interest, may bring an action
against him to determine the adverse claim and to
quiet the plaintiff's title.

3. An allegation in the complaint, in ordinary
and concise terms, of the ultimate facts that the
plaintiff is the owner in fee, is sufficient, without
setting out matters of evidence, and an allegation
that the defendant claims an adverse estate or in-
terest is sufficient, without further defining it, to

authorize the court to grant equitable relief.
Submitted Jan. 14, 1889. Decided Jan. 28, 1889.
[No. 1133.]

APPEAL from a judgment of the Supreme
Court of the Territory of Arizona, sus-
taining a demurrer to the complaint, and dis-
missing an action to enjoin defendants from
asserting any claim, adverse to plaintiff, to the
lands in question. Reversed.

Statement by Mr. Justice Gray:
This was a complaint, filed in a District

[291)

[292]

Court of the Territory of Arizona and County | complaint made out no case for equitable relief,
of Pima, by Frank Ely against the New Mexi- and therefore could not be be maintained un-
co and Arizona Railroad Company and several der the opinions of this court in Holland v.
individuals, alleging that the "plaintiff is the Challen, 110 U. S. 15, 25 [28: 52, 56], and Frost
owner in fee of all that piece or parcel of land v. Spitley, 121 U. S. 552, 557 [30: 1010, 1012].
granted by the Mexican authorities to Leon See also More v. Steinbach, 127 U. S. 70 [32:
Herreros on May 15, 1825," called the Rancho 51]. But each of those cases came from a Cir-
San José de Sonoita, situated in the Sonoita cuit Court of the United States, in which the
Valley in the county aforesaid, and more par- distinction between actions at law and suits in
ticularly described and bounded in the com- equity is preserved. The present action, aris-
plaint, according to the calls of a survey made ing under territorial statutes, is governed by
by the Government of Spain in June, 1821; and different considerations.
that the "defendants, and each of them, claim
an estate or interest in and to the above de-
scribed land and premises adverse to this plaint-action for the enforcement or protection of
iff; that the said claim of the said defendants
and each of them is without any right whatso-
ever; and the said defendants have not, nor
have any or 'either of them any estate, right,
title or interest whatever in said lands and
premises or any part thereof. Wherefore, the
plaintiff prays:

[315]

similar statutes, from one of which the present
Statute of Arizona would seem to have been
taken. Payne v. Treadwell, 16 Cal. 220, 242-
247; Statham v. Dusy, 11 Pac. Rep. 606; Heeser
v. Miller 19 Pac. Rep. 375; Jeffersonville, M. &
I. R. Co. v. Oyler, 60 Ind. 383, 392; Trittipo v.
Morgan, 99 Ind. 269.

The result is, that the complaint in this case
is sufficient to authorize the court to determine
the claim of the defendants and the title of the
plaintiff, and also, if the facts proved at the
hearing shall justify it, to grant an injunction
or other equitable relief.

Judgment reversed, and case remanded to the Supreme Court of Arizona, with directions to overrule the demurrer to the complaint, and to take such further proceedings as may be consistent with this opinion.

JOSIAH MORRIS, Appt.,

v.

JAMES N. GILMER.

(See S. C. Reporter's ed. 315-329.)

Reported below, 35 Fed. Rep. 682.
The facts are stated in the opinion.
Messrs. Henry C. Tompkins, Alexander
T. London, Samuel F. Rice and Daniel
S. Troy, for appellant:

This suit is not one of which the circuit court should have retained jurisdiction; appellee at the time of the filing of the bill, was not in reality a citizen of Tennessee. This objection may be taken at any time, even though no plea be filed.

Barney v. Baltimore, 73 U. S. 6 Wall. 280 (18: 825); Williams v. Nottawa, 104 U.S. 209 (26:719); Hawes v. Oakland, 104 U.S. 450 (26:827; Hayden V. Manning, 106 U. S. 586 (27: 306); Manhattan Life Ins. Co. v. Broughton, 109 U.S. 121 (27:878); Farmington v. Pillsbury, 114 U. S. 138 (29: 114); Robinson v. Anderson, 121 U. S. 522 (30: 1021); Detroit v. Dean, 106 U. S. 537 (27: 300).

There can be no new domicil acquired, in any event, until there is an absolute abandonment of the old one.

De Bonneval v. De Bonneval, 1 Curteis, Eccl. 856; Somerville v. Somerville, 5 Ves. Jr. 750; White v. Brown, 1 Wall. Jr. 262; Ennis v. Smith, 55 U. S. 14 How. 400 (14: 472).

In order to consitute a domicil in another

Jurisdiction of circuit court-duty to dismiss-State it is necessary that the party removing must
depositions change of domicil for the purpose
of suit-change of citizenship-chat consti-
tutes evidence-duty of court.

8. Such fact may be brought to the attention of
the court by affidavits or depositions taken in the
cause, and it is not necessary that the want of
jurisdiction should appear from the record.
4. A citizen of the United States can instantly
transfer his citizenship from one State to another,
and his right to sue in the Courts of the United
States is none the less because his change of domicil
was induced by the purpose, whether avowed or not,
of invoking, for the protection of his rights, the
Jurisdiction of a federal court.

5. In order to effect such a change of domicil as
constitutes a change of citizenship, there must be
actual residence in the place, with the intention that
it is to be a principal and permanent residence.

have the intention, at the time of or after the removal, to remain permanently or for an indefinite period in the State to which he has removed.

Gardner v. Sharp, 4 Wash. C.C. 609; Mitchell V. U. S. 88 U. S. 21 Wall. 350 (22: 584); Case v. Clarke, 5 Mason, 70; Cooper v. Galbraith, 3 Wash. C. C. 546.

The rule is also well established that the native domicil, or domicil of origin, easily re

verts.

Guier v. O'Daniel, 1 Am. Lead. Cas. 745, 4th ed.; Craigie v. Lewin, 3 Curt. Eccl. 435; The Venus, 12 U. S. 8 Cranch, 253 (3:553); State v. Hallett, 8 Ala. 159; Merrill v. Morrissett, 76 Ala. 433.

sive on the parties; and unless words of qualiIf the bill is dismissed generally, it is conclufication accompany the decree, it is to be presumed to be rendered on the merits.

Freeman, Judgm. § 270; Durant v. Essex Co. 74 U. S. 7 Wall. 109 (19: 156); Case v. Beauregard, 101 U. S. 692 (25:1005); Alley v. Nott, 111 U. S. 472 (28: 491); Lyon v. Perin & G. Mfg. Co. 125 U. S. 698 (31: 839); Bigelow v. Winsor, 1 Gray, 299, Tankersly v. Pettis, 71 Ala. 179; Borrowscale v. Tuttle, 5 Allen, 377.

In a court of equity there is always an issue on staleness, lapse of time and laches, whether they are pleaded or made matter of defense by way of demurrer; and it is incumbent upon the complainant, when he asks relief after the lapse of much time, to explain the delay.

8. Upon the evidence in this case, hell, that the plaintiff had no purpose to acquire a domicil or settled home in Tennessee, and that his sole object in removing to that State was to place himself in a situation to invoke the jurisdiction of the Circuit Court of the United States, with the intention to leave that State as soon as he could do so without defeating the jurisdiction of the federal court, and that he was, therefore, a mere sojourner in the State when the suit was brought. 7. If the removal be for the purpose of committing a fraud upon the law, and to enable the party to avail himself of the jurisdiction of the federal courts, and that fact be made out by his acts, the court must pronounce that his removal was not Speidel v. Henrici, 120 U. S. 387 (30: 719); with a bona fide intention of changing his domicil, Piatt v. Vattier, 34 U. S. 9 Pet. 405 (9:173); however frequent and public his declarations to the McKnight v. Taylor, 42 U.S. 1 How. 161 (11:86); contrary may have been. Bowman v. Wathen, 42 U. S. 1 How. 189 (11:97); [No. 1150.] Submitted Jan. 2, 1889. Wagner v. Baird, 48 U. S. 7 How. 234 (12: 681); Decided Jan. 28, 1889. Badger v. Badger, 69 U. S. 2 Wall. 87 (17:836); PPEAL from a decree of the Circuit Court Hume v. Beale, 84 U. S. 17 Wall. 336 (21: 602); of the United States for the Middle Dis-Marsh v. Whitmore, 88 U. S. 21 Wall. 178 (22: trict of Alabama, in favor of plaintiff in an ac- 482); Sullivan v. Portland & K. R. Co. 94 U. S. tion to require defendant to account for and 806 (24: 324); Godden v. Kimmell, 99 U. S. 201 pay over dividends and to transfer shares of|(25:431); Johnson v. Johnson, 5 Ala. 90; James stock to the plaintiff. Reversed, v. James, 55 Ala. 533; Nettles v. Nettles, 67 Ala

AP