Statement of the Case.

ship property to one Ross in trust to convert the same into money and pay creditors in the order named, first, M. J. Gray and the Union Bank of Greeley, Colorado, in full; second, Mrs. A. F. Sipperley, Mrs. E. J. Walling, and II. A. Lee, certain individual indebtedness, in full; third, their remaining creditors. John O. Smith, George Whiting, Charles F. Connor, and George S. Smith, composing the firm of Smith, Connor & Co., brought suit against A. F. Sipperley and H. S. Lee, in the District Court for the Third Judicial District of Utah Territory, and levied an attachment on the assigned property upon the ground that Sipperley & Co. had disposed thereof with intent to defraud their creditors. Thereupon the preferred. creditors, M. J. Gray, the Union Bank of Greeley, Colorado, Mrs. Sipperley, Mrs. Walling, and H. A. Lee, filed an intervening complaint in said suit, praying for a receiver, and that the assignment be declared valid and the indebtedness due them be ordered to be paid out of the proceeds of the property and for general relief; which intervening complaint was answered by the original plaintiffs, who prayed therein that the assignment be adjudged fraudulent and void. The cause was tried by the District Court of the Third Judicial District, a jury having been duly waived; the trial judge filed findings of fact and conclusions of law, and rendered judgment, adjudging the assignment fraudulent and void; dismissing the complaint of intervention; and directing the receiver (the assignee having in the meantime been appointed receiver) to pay plaintiffs in certain other suits consolidated with this and then

these plaintiffs.

The title of the cause in the District Court under which the findings of fact and conclusions of law appeared in the record, and also the judgment, was as follows: "John O. Smith et al., Plaintiffs, vs. A. F. Sipperley et al., Defendants, and M. J. Gray, Mrs. A. F. Sipperley, Mrs. E. J. Walling, H. A. Lee, and the Union Bank of Greeley, Colorado, Intervenors." The record did not contain the prayer for and allowance of appeal to the Supreme Court of Utah, but showed as at the June term, 1893, of that court, the following order: "John O. Smith et al. vs. A. F. Sipperley et al., Def'ts, and M. J. Gray

Statement of the Case.

et al., Intervenors & Appellants. This cause coming on regularly to be heard, was argued by Hon. John W. Judd in behalf of appellants, by Charles C. Dey, Esq., in reply, was submitted, and taken under advisement." The judgment of the District Court was thereafter affirmed. The opinion of the Supreme Court is given and is entitled, " John O. Smith et al., Respondents, vs. A. F. Sipperley et al., Appellants." Subsequently this order was entered: "John O. Smith et al. vs. A. F. Sipperley, Def'ts, and M. J. Gray et al., Intervenors & Appellants. In this cause counsel for appellants prays the allowance of an appeal from the judgment of this court, rendered therein, to the Supreme Court of the United States, and asks that the amount of a bond to be given thereon be now fixed, and it was ordered that such appeal, as prayed for, be and is hereby allowed, and the amount of a bond to be given thereon is fixed in the sum of five thousand dollars, and the amount of a bond for costs is fixed in the sum of five hundred (500) dollars."

The record disclosed a bond dated December 22, 1893, entitled "John O. Smith et al., Respondents, vs. A. F. Sipperley et al., Defendants, and M. J. Gray et al., Intervenors, Appellants," signed by Mrs. Sipperley, Mrs. Walling, H. A. Lee, and the Union Bank of Greeley, Colorado, as principals, running to John O. Smith, George Whiting, Charles P. Connor, and George S. Smith, composing the firm of Smith, Whiting, Connor & Co., in the penal sum of $5500, and reciting that, "Whereas the above-named Mistress A. F. Sipperley, Mistress E. J. Walling, H. A. Lee, and the Union Bank of Greeley, Colorado, have prosecuted an appeal to the Supreme Court of the United States," etc. This bond was approved by the Chief Justice of Utah, and filed on the day of its date. Citation was issued, dated January 4, 1894, and directed to John O. Smith, George Whiting, Charles P. Connor, George S. Smith, and their attorneys, reciting that Mrs. Sipperley, Mrs. Walling, H. A. Lee, and the Union Bank of Greeley, Colorado, had appealed, etc., service of which citation was admitted January 12, 1894. An assignment of errors in this court was also filed in that court January 12, entitled

Syllabus.

"John O. Smith et al. vs. A. F. Sipperley et al., and Mrs. A. F. Sipperley, Mrs. E. J. Walling, H. A. Lee, and the Union Bank of Greeley, Colorado, Intervenors & Appellants." No application for summons and severance as to M. J. Gray or any equivalent therefor appeared in the record, nor any order permitting severance; nor was any application made in this court for the issue of citation to A. F. Sipperley and II. S. Lee, or leave to perfect the appeal as to them; nor did they or Gray appear herein.

Appellees moved to dismiss or affirm.

Mr. C. H. Armes for the motion.

Mr. J. W. Judd opposing.

THE CHIEF JUSTICE: The motion to dismiss is sustained upon the authority of Masterson v. Herndon, 10 Wall. 416; Hardee v. Wilson, 146 U. S. 179; Inglehart v. Stansbury, 151 U. S. 68; Davis v. Mercantile Trust Co., 152 U. S. 590.

Appeal dismissed.

NEW YORK v. ENO.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR

THE SOUTHERN DISTRICT OF NEW YORK.

No. 602. Argued and submitted October 17, 1894.

- Decided October 29, 1894.

Whether an offence described in an indictment in a state court is an offence against the laws of that State and punishable thereunder, or whether it is made by Federal statutes an offence against the United States, exclusively cognizable by their courts, and whether the same act may be an offence against both national and state governments, punishable in the tribunals of each, without infringing upon the constitutional guaranty against being twice put in jeopardy of limb for the same offence, are questions which a state court of original jurisdiction is competent to decide in the first instance; and, (its obligation to render such decision as will give full effect to the supreme law of the land, and protect any right secured by it to the accused, being the same that rests upon the courts of the United States,) the latter, if applied to for a writ of habeas corpus in

Opinion of the Court.

such case, should decline to issue it unless it also appears that the case is one of urgency.

Ex parte Royall, 117 U. S. 241, followed, and distinguished from In re Loney, 134 U. S. 372.

The proper time, in such case, to invoke the jurisdiction of this court is after the claim of the accused of immunity from prosecution in the state court has been passed upon by the highest court of the State adversely to him.

THE case is stated in the opinion.

Mr. John D. Lindsay for appellants. Mr. John R. Fellows was with him on the brief.

Mr. George Bliss for appellee.

MR. JUSTICE HARLAN delivered the opinion of the court.

The appellee presented to the court below his petition for a writ of habeas corpus, alleging that he was restrained of his liberty by the warden of the city prison in New York city; that he had not been committed and was not detained by virtue of any judgment, decree, final order, or process; that the cause or pretence of such restraint was certain bench warrants issued upon indictments against him in the Court of General Sessions of the Peace of the city and county of New York; and that those indictments, copies of which are exhibited with the petition, charge him with the commission of certain offences over which that court "has not and never has had jurisdiction." The relief asked was that the petitioner be discharged from the custody of the state authorities.

The indictments referred to were five in number and were based upon the Penal Code of New York, which, among other things, declares any person guilty of forgery in the second degree and punishable by imprisonment for a term not exceed ing ten years who, with intent to defraud, forges an entry made in any book of records or accounts kept by a corporation doing business within the State, or in any account kept by such a corporation, whereby any pecuniary obligation, claim, or credit is or purports to be created, increased, diminished,

Opinion of the Court.

discharged or in any manner affected; and any person guilty of forgery in the third degree and punishable by imprisonment for not more than five years, who, with intent to defraud or conceal any larceny or misappropriation of any money or property, alters, erases, obliterates, or destroys an account, book of accounts, record or writing, belonging to, or appertaining to the business of a corporation, association, public office or officer, partnership or individual; or makes a false entry in any such account or book of accounts; or wilfully omits to make true entry of any material particular in any such account or book of accounts, made, written, or kept by him or under his direction. Penal Code, New York, $$ 511, 515, 524, 525.

In some of the indictments the offence is charged to have been committed by Eno in 1883; in the others, in the year 1884.

Each indictment alleges that the offence described was committed by the accused while he was president of the Second National Bank in the city of New York. It also appears from the indictments that the alleged forgeries consisted in the making of certain false entries in the books and accounts of that bank with intent to defraud and to conceal the misappropriation of its moneys.

By the Revised Statutes of the United States it is provided: "SEC. 563. The District Courts shall have jurisdiction as follows: First. Of all crimes and offences cognizable under the authority of the United States, committed within their respective districts, or upon the high seas, the punishment of which is not capital, except in the cases mentioned in section fifty-four hundred and twelve, Title 'CRIMES.""

"SEC. 629. The Circuit Courts have original jurisdiction as follows: Twentieth. Exclusive cognizance of all crimes and offences cognizable under the authority of the United States, except where it is or may be otherwise provided by law, and concurrent jurisdiction with the District Courts of crimes and offences cognizable therein."

"SEC. 711. The jurisdiction vested in the courts of the United States in the cases and proceedings hereinafter men