the acts of both. The use of the word 'em- | the time during the selection, and no one else bezzle' in the indictment is surplusage. The charge is a larceny as described in the indictment." The defendants took an exception. The defendants then moved to quash the panel of petit jurors, on the ground, among others, that the jurors had not been selected and drawn in the mode required by the Revised Statute of the United States. On this motion evidence was heard, but the evidence was not made a part of the record by bill of exceptions or otherwise. The motion to quash was denied. Thereupon the defendants were arraigned, and pleaded not guilty. Bystanders were summoned to serve on the panel, and from them a jury was selected. No objection was made to the jury so selected. The result of the trial was a verdict of guilty on the first count. After the return of the verdict the accused moved in arrest of judgment upon the following grounds: That the grand jury was not selected or drawn according to the requirements of the statute in such cases made and provided; that the clerk of the court took no part in the selection of the names to be placed in the jury box, but the other jury commissioner of the court, after directing a deputy clerk to prepare lists and tickets of persons, placed all the tickets with names in the box himself; that from the tickets and names so placed in the box by the commissioner the grand jury was subsequently drawn; that the deputy clerk was not and is not a person authorized under the law to take part in the selection or drawing the grand and petit juries of the court; that he had not been theretofore appointed by the court for that purpose; that he was not shown to be of a different political affiliation from the jury commissioner theretofore appointed by the court; and that said names were not placed in the box alternately by the commissioner and the clerk. 21 Stat. at L. 43, chap. 52, U. S. Comp. Stat. 1901, p. 624. a The motion in arrest of judgment was overruled, the court making an order which contained the following recitals: "It appears the regular jury commissioner, Andres Crosas, and the deputy clerk, Frank Antonsanti, acted in doing so, the clerk of the court being absent on sick leave. There is no charge of corruption or that the selection was not by impartial persons. The general rule as to provisions of law for the selection of jurors is, that they are only directory. There appear to have been some irregularities, and not an exact compliance with the terms of the statute; but both the commissioner Crosas and the deputy clerk made the selection, and both were present all took part in it. It is not shown they are not of opposite politics, and this is to be presumed. There was no such material irregularity as vitiated the panel, but a substantial compliance with the statute upon the subject. The motion in arrest of judgment is overruled." Subsequently the defendant moved for a new trial upon various grounds. That motion was overruled, and this writ of error was brought. Messrs. Francis H. Dexter, Frederic D. McKenney, and John Spalding Flannery for plaintiff's in error. Assistant Attorney General Robb and Mr. Glenn E. Husted for defendant in error. Mr. Justice Harlan, after making the foregoing statement, delivered the opinion of the court: The first question is one of the jurisdiction of this court to re-examine the judg ment below, the government insisting that we are without jurisdiction. We are of opinion that this question is settled by Crowley v. United States, 194 U. S. 461, 462, 48 L. ed. 1075, 1077, 24 Sup. Ct. Rep. 731, which was a criminal prosecution for the violation of certain statutes of the United States relating to the postal service. By the act of April 12th, 1900 (31 Stat. at L. 85, chap. 191), establishing a civil government for Porto Rico, it was provided that, except as otherwise provided, the statutory laws of the United States shall have the same force and effect in Porto Rico as in the United States; also, that writs of error and appeals may be prosecuted from the final decisions of the district court of the United States for Porto Rico "in all cases where . . . an act of Congress is brought in question and the right claimed thereunder is denied." § 35. The same act provided that the United States court for Porto Rico shall have jurisdiction "of all cases cognizant in the circuit courts of the United States, and shall proceed therein in the same manner as a circuit court." § 34. In Crowley's Case the contention of the accused, based upon a plea in abatement, was that certain members of the jury finding the indictment were disqualified under the local law to serve as grand jurors, and that the statutes of the United States made it the duty of the district court to follow the local law in that respect. Referring to the above act, we said: "In this case that act was brought in question by the contention of the parties,-the contention of the accused being, in substance, that, pursuant to that act of Congress, the court below, in the mat which such court is held, and a well-known ter of the qualifications of grand jurors, | which commissioner shall be a citizen of should have been controlled by the provi- good standing, residing in the district in sions of the local law relating to jurors, in connection with the statutes of the United States relating to the organization of grand juries and the trial and disposition of criminal causes; and the court below deciding that, notwithstanding the Foraker act, the local act of January 31st, 1901, referred to in the plea, was not applicable to this prosecution, and that the grand jury finding the indictment, if a grand jury was necessary, was organized consistently with the laws of the United States under which the court proceeded. It thus appears that the accused claimed a right under the act of Congress and under the Revised Statutes of the United States, which, it is alleged, was denied to him in the court below. This court has, therefore, jurisdiction to inquire whether there is anything of substance in that claim." As the Porto Rican statutes contain no provisions relating to the selection, drawing, or impaneling of grand jurors, it was, as the accused contends in this case, the duty of the district court of the United States for Porto Rico, in criminal prosecutions for crimes against the United States, to keep in view § 800 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 623), which provides: "Jurors to serve in the courts of the United States, in each state respectively, shall have the same qualifications, subject to the provisions hereinafter contained, and be entitled to the same exemptions, as jurors of | the highest court of law in such state may have and be entitled to at the time when such jurors for service in the courts of the United States are summoned; and they shall be designated by ballot, lot, or otherwise, according to the mode of forming such juries then practised in such state court, so far as such mode may be practicable by the courts of the United States or the officers thereof. And for this purpose the said courts may, by rule or order, conform the designation and impaneling of juries, in substance, to the laws and usages relating to jurors in the state courts, from time to time in force in such state." It was also its duty, in such prosecutions, to conform to the act of Congress of June 30th, 1879 (21 Stat. at L. 43, chap. 52, U. S. Comp. Stat. 1901, p. 624), which provides that jurors to serve in the courts of the United States "shall be publicly drawn from a box containing, at the time of each drawing, the names of not less than three hundred persons, possessing the qualifications prescribed in § 800 of the Revised Statutes, which names shall have been placed therein by the clerk of such court and a commissioner, to be appointed by the judge thereof, serve in courts after the passage of this act shall be drawn in conformity herewith." When, therefore, the accused in this case, by their motion in arrest of judgment, claimed the benefit of the above statutes, the acts of Congress referred to were brought in question within the meaning of the act of April 12th, 1900, as interpreted in the Crowley Case; and the rights asserted by the accused under those statutes having been denied when the motion in arrest of judgment was overruled, the case could be brought here. The words "brought in question" in that act do not mean that the accused, in order to bring the final judgment here, must have disputed the validity of the acts of Congress which were alleged to have been violated to their prejudice. It was quite sufficient that they should assert rights under those acts, and that the rights so claimed were denied to them. Crowley v. United States, 194 U. S. 461, 462, 48 L. ed. 1075, 1077, 24 Sup. Ct. Rep. 731. The government, however, contends that the motion in arrest of judgment came too late, and in support of that view cites the following language from United States v. Gale, 109 U. S. 65, 69, 27 L. ed. 857, 858, 3 Sup. Ct. Rep. 1, 4: "Much more would it seem to be requisite that all ordinary objections, based upon the disqualification of particular jurors, or upon informalities in summoning or impaneling the jury, where no statute makes proceedings utterly void, should be taken in limine, either by challenge, by motion to quash, or by plea in abatement. Neglecting to do this, the defendant should be deemed to have waived the irregularity." Wharton, Crim. Pl. & Pr. §§ 344, 350, 426. But, in the same case, the court said what is pertinent to the present discussion: "There are cases, undoubtedly, which admit of a different consideration, and in which the objection to the grand jury may be taken at any time. These are where the whole proceeding of forming the panel is void, as where the jury is not a jury of the court or term in which the indictment is found; or has been selected by persons having no authority whatever to select them; or where they have not been cause of the laches of the defendant in not sooner taking possession of the property under a patent issued to his ancestor under the treaty of May 10, 1854 (10 Stat. at L. 1053), with the Shawnee Indians, although a de mand is made by a cross-petition that the title be quieted, and that plaintiffs be enjoined from setting up or making any claim to the property. [No. 200.] 1905. sworn; or where some other fundamental requisite has not been complied with." Here the objection to the grand jury was, in substance, that it was not such a body as could legally find an indictment. This view rests upon the ground that the names were placed in the box by a jury commissioner and by a deputy clerk, the latter, it is contended, having no authority to act at all in such a matter in place of the clerk, because the statute required the joint action of a commissioner and the clerk of the Submitted April 6, 1905. Decided May 1, court. If, therefore, the requirement that the grand jurors should be selected by the commissioner and the clerk was a funda-IN ERROR to the Supreme Court of the mental requisite, that is, if the deputy State of Kansas to review a judgment clerk, in the absence of the clerk, had no au- which affirmed a judgment of the District thority, under any circumstances, to act, Court of Wyandotte County, in that state, then the motion in arrest of judgment did in favor of plaintiffs in an action of ejectnot come too late. There are authorities ment. There are authorities ment. Reversed and remanded for further which give some support to the view that proceedings. this requirement is of substance, and not a mere "defect or imperfection in matter of form only." Rev. Stat. § 1025, U. S. Comp. Stat. 1901, p. 720; Hulse v. State, 35 Ohio St. 421. Whether this position be well taken or not we do not stop to consider; for, assuming that the motion in arrest of judgment was made in time, and assuming even that the court, as matter of law, erred in its interpretation of the statute, still the accused cannot avail themselves here of that error, for the record does not show any exception taken to the overruling of the motion in arrest of judgment. By not excepting to the ruling of the court the accused must be held to have acquiesced in it, and to have waived the objection made to the grand jury. We perceive no reason why they could not have legally waived an objection based upon the grounds stated in the motion. See same case below, 66 Kan. 557, 72 Pac. 243. Statement by Mr. Justice Brown: This was an action of ejectment brought September 22, 1900, in the district court of Wyandotte county by defendants in error, who were plaintiffs below, to recover possession of certain lots of land in the city of Argentine. The case was tried upon an agreed statement of facts, substantially as follows: The land was patented December 28, 1859, to Susan Whitefeather, as the head of a family, consisting of herself and her son, George Washington, who were members of the Shawnee tribe of Indians. The patent was issued under the treaty of May 10, 1854 (Indian Treaties, p. 792 [10 Stat. at L. 1053]), with the Shawnees. Whitefeather died prior to July 10, 1862, and her son, George Washington, inherited the land. On November 27, 1867, he being then fourteen years of age, the probate court of Johnson county appointed Jonathan Gore as his guardian, though the land was in Wyandotte county. In these proceedings Washington is described as the minor heir of George and Judy Washington. Under such appointment the guardian sold the land to one Joel F. Kinney for $2,000, executing to him a guardian's deed, which was approved by the Secretary of the Interior May 21, 1869, and the title so acquired by Kinney passed by a series of conveyances to the plaintiff's Green. In these proceedings for a sale Gore described himself as guardian of George Washington, the minor heir of Susan Whitefeather, deceased. Washington remained a member of the Shawnee tribe until September 26, 1900, when he was made He took no a citizen of the United States. steps to impugn the validity of the guard ian's deed until June 25, 1895, when, ac- | which is assumed by the supreme court to cording to the agreed statement of facts, the be void. The plaintiffs did not show that defendant Dunbar took possession of the they were ever in possession of the land, land as his agent. Up to this time it had which appears to have been vacant and unremained vacant and unimproved. Plain- occupied until Dunbar took possession for tiff's recovered judgment, which was af- the defendant Washington, in June, 1895. firmed by the supreme court. 66 Kan. 557, The plaintiffs are not shown to have exer72 Pac. 243. cised acts of ownership, or even to have paid taxes. We do not understand the material Messrs. L. F. Bird and H. G. Pope for ity of the suggestion that the defendants plaintiffs in error. have lost their rights to the land by the No brief was filed for defendants in error. laches of George Washington, the Indian. Mr. Justice Brown delivered the opinion of the court: The deed of Jonathan Gore, guardian, to Joel F. Kinney, dated October 14, 1868, of property situated in Wyandotte county, was attacked upon the ground 1. That Gore was never appointed guardian of the defendant, George Washington, who was the son of Susan Whitefeather, but was appointed by the probate court of Johnson county as the guardian of George Washington, while another person, named Elizabeth Longtail, was, on July 9, 1862, appointed by the probate court of Wyandotte county the guardian of apparently another George Washington, the minor son of George and Judy Washington, who lived and owned land in that county. Indeed, the records are in a hopeless state of confusion. 2. Because the guardian's deed was executed and delivered five months before he had obtained authority from the probate court to make it. 3. Because the petition of the guardian to sell the land did not describe the property, and because it was void on its face. Laches is a defense often set up in courts of equity in bar of plaintiffs' claim, but here it is set up by the plaintiffs, as a weapon of attack, although the defendants are the only parties who are or have been in possession of the land. They have shown plaintiffs' title to be void, and that they have been in possession of the land for five years. They are entitled to stand upon their rights. As the deed was void, no affirmative action on the part of George Washington was necessary. Indeed, as plaintiffs took no action under the guardian's deed to Kinney for over thirty years, it would appear that they were guilty of greater and more inexcusable delay than the defendants. The only difficulty arises from the crosspetition of the defendants, incorporated with their answer, in which they demand that their title be quieted, and that plaintiffs be enjoined from setting up or making any claim to the property. If this were an original petition by defendants in possession, to remove a cloud from their title, it is entirely possible that the court might find that they had been guilty of such laches as would disentitle them to recover; but the petition of plaintiffs in the case is an ordi Not only did this not involve a Federal question, but, in its opinion, the court as-nary petition in ejectment, praying for possumed, for the purposes of the case, that the guardian's deed was void for want of jurisdiction, and placed its decision solely upon the ground that Washington had been guilty of such laches as would bar recovery. The only Federal question turns upon the right of George Washington, a Shawnee Indian, and one of that class of persons who are aptly described as "wards of the nation," to avail himself of the Whitefeather patent, notwithstanding his assumed laches in taking possession thereunder. We are much embarrassed by the failure of the defendants in error to file a brief. But we do not understand how the defense of laches is pertinent to the case. The action is ejectment. The plaintiffs must recover on the strength of their own title, and not upon the weakness of the defendants'. The only title set up by the plaintiffs is that derived from the deed of Jonathan Gore, guardian of the defendant Washington, session of the land as against the defendants, for damages, and for an injunction pending trial. The case was tried by the court without a jury, as an ordinary action of ejectment, and recovery decreed in favor of the plaintiffs for possession of the property, with costs. No mention was made in the opinion or judgment of the cross-petition of the defendants. We do not see how the case can be treated other than as an ordinary action of ejectment. In the case of Cheesebrough v. Parker, 25 Kan. 566, it was held that where, under the practice in Kansas, an action is commenced for the recovery of real estate, the right of the plaintiff to demand a second trial under the statute is not taken away by the addition to the petition of a claim for mesne profits, nor by the fact that the defendants set up an equitable defense and claimed equitable relief in the answer. In delivering the opinion of the court, Mr. Justice Brewer, now of this court, observed: "Under a general denial" (in an action of ejectment) "every possible defense may be interposed. If, instead of such general denial, the defendant sets out in detail an equitable defense, this does not change the character of the action or abridge the rights of the plaintiff. It is a grand mistake to suppose that by setting up in an answer an equitable defense to an action for the recovery of real estate, either the plaintiffs' right to a jury trial, or a second trial, under the statute, can be abridged. Whatever effect such defense may have upon defendants' rights, the plaintiffs' are unchanged. They have commenced an action under the statute for the recovery of real property, and no rights given by such statute can be taken away by the character or form of the defense." The substance of the opinion is that an action of ejectment must be tried as at law, notwithstanding that an equitable claim or defense is set up by one of the parties. 1. 2. cision on non-Federal ground right or immunity claimed under Federal statute -effect of certificate of state court. The Supreme Court of the United States will not take jurisdiction of a writ of error directed to a state court, where the judgment of that court rests on two grounds, one of which does not involve a Federal question, or where it does not appear on which of the two grounds the judgment was based, and the non-Federal ground is sufficient in itself to sustain the judgment. The defense in an action against the maker of a promissory note given in consideration of a promise to have the cigars called for by a certain contract manufactured in Key West, that it was contemplated that such cigars were to be removed from the factory without compliance with the regulations prescribed by U. S. Rev. Stat. §§ 3390, 3393, 3397 (U. S. Comp. Stat. 1901, pp. 2218, 2220, 2222), does not amount to the special assertion of a right, title, privilege, or immunity under a Federal statute, within the meaning of § 709, authorizing writs of error from the Supreme Court of the United States to state courts, since defendant could derive no personal rights under those sections to enforce the repudiation of his note, even though, on grounds of public policy, it was illegal and void. 3. The certificate of the chief justice of the highest state court that the judgment of that court denied a title, right, privilege, or immunity specially set up and claimed under a Federal statute is not in itself sufficient to confer jurisdiction on the Supreme Court of the United States of a writ of error to that court. Had the plaintiffs taken possession of the land under their guardian's deed, and an action been brought by the Indian, they might perhaps have pleaded in defense laches or the statute of limitations; but as the property remained vacant and unimproved for over twenty years, we do not see why the defendants do not stand in a position to avail themselves of the fact that the plaintiff's' only title is derived from a void deed, especially in view of the fact that the defendant Washington shows a patent to the land to his mother, Susan Whitefeather, and that he is her only heir. The record presents the curious anomaly of a recovery by Submitted April 3, 1905. Decided May 1, plaintiffs, who have neither title nor prior possession, against defendants, who have both. Had the defendants, after taking possession, filed a bill to quiet their title and remove the cloud created by the guardian's deed, a different question would have been presented. The judgment of the Supreme Court of Kansas is, therefore, reversed, and the cause remanded to that court for further proceedings not inconsistent with this opinion. (198 U. S. 149) v. FRANK M. ARGUIMBAU, as Surviving IN [No. 523.] 1905. State of Florida to review a judgment IN ERROR to the Supreme Court of the which affirmed a judgment of the Circuit Court of Monroe County, in that state, sustaining demurrers to the pleas in an action against the maker of certain promissory notes. Dismissed for want of jurisdiction. Statement by Mr. Chief Justice Fuller: This was an action upon two promissory notes for $2,500 each, payable to Horace R. Kelly, indorsed to the Horace R. Kelly & Company, Limited, and by that company indorsed to the firm of which Arguimbau was survivor. Many pleas were interposed in defense, and, among them, several filed March 24, 1900, and several filed February 2, 1903. By the first of these pleas, defendant below, plaintiff in error here, averred "that on or about the 18th day of March, A. D. 1893, Horace R. Kelly, claiming to be a manufacturer of cigars, agreed with John Jay PhilError to state court-Federal question-de- brick, during his lifetime, that if he, the of Schroeder & Bon. |