The following is the petition for removal: "MORRELL C. KEITH, Plaintiff, v. EDWARD P. KELLAM and Cyrus K. Holliday, Defendants. "Petition for Removal to U. 8. Circuit Court. "And now comes the said defendants, Edward P. Kellam and Cyrus K. Holliday, by Rossington, Smith & Dallas, and John T. Morton, their attorneys, and represent and aver that in this action the matter in dispute exceeds, exclusive of costs and interest, the sum and value of five hundred dollars, and in fact exceeds, exclusive of interest and costs, the sum of two thousand dollars, and that in this suit there is a controversy which is wholly between citizens of different states, the said plaintiff being a citizen of the State of Nebraska and both of said defendants being citizens of the State of Kansas, and that the controversy can be fully determined as between them, the said plaintiff and said defendants. "These defendants therefore ask that this cause be removed into the Circuit Court of the United States in and for the District of Kansas to be held in said district; that this court accept this petition and the bond herewith filed, and proceed no further in this action, and that this cause be removed into said Circuit Court." The Chief Justice: Upon the authority of Stevens v. Nichols, 130 U. S. 230 [32: 914]: Jackson v. Allen, 132 U. S. 27 [33: 249]; n Confiance Compagnie v. Hall, 137 U. S. 61 [34: 573], and other cases, the decree in this case must be reversed, at the costs of appeilants in this court and in the Circuit Court, and the cause remanded to the Circuit Court with directions to remand it to the state cour THE NATIONAL EXCHANGE BANK of Baltimore, Maryland, Appt., v. W. H. PETERS, Receiver of the EXCHANG NATIONAL BANK of Norfolk, Virginia, ET AL. (See S. C. Reporter's ed. 370-573.) Repeal of law conferring jurisdiction—whe appeal dismissed-powers of this court limite 2. If a law conferring jurisdiction is repeale!. without any reservation as to pending cases, a.. such cases fall with the law. When the case does not come within either of the six classes of cases specified in section 5, of the Judiciary Act of March 3, 1891, and the appes from the judgment of the Circuit Court rendered Nov. 18, 1890, was not taken until after July 1891, the time limited by the joint resolution of Congress of March 3, 1891, it must be dismissed. The petition or complaint by which the suit was commenced alleges that "said plaintiff resided in the State of Nebraska," and "that said Edward P. Kellam resided in the city of Topeka, in said Shawnee county," but said complaint does not state the residence of said Cyrus K. Holliday, and does not allege the citizenship of the parties at the commencement of Submitted April 4, 1892. the suit. The Circuit Court, after the removal of the cause, permitted the complainant to recast bis bill or complaint, which he did, and be therein alleged the citizenship of the parties in the following language: "Morrell C. Keith, of North Platte, Nebraska, and a citizen of the State of Nebraska, brings this his bill against Edward P. Kellam, of Topeka, and a citizen of the State of Kansas, and Cyrus K. Holliday, of Topeka, and a citizen of the State of Kansas; and thereupon your orator complains and says, etc." The defendants put in separate answers. The answer of defendant Kellam admits the residence of the parties as charged in said bill, and the answer of the defendant Holliday admits the residence of complainant and of said defendant Kellam to be as stated in said bill of complaint. The complainant joined issue by replication, and at the June term of court, 1888, a decree was entered in favor of the complainant and against the defendants, setting aside the conveyance from Keith to Holliday, and also from Holliday to Kellam, and ordering the surrender and cancellation of all mortgages, notes, and other papers connected with the transaction, and decreeing that the same were and thenceforth should be null and void. From this decree the defendants appeal to this court. Messrs. W. H. Rossington, Chas. Blood Smith, Everett J. Dallas and John T. Morton for appellants. Messrs. A. B. Quinton, E. S. Quinton and A. Bergen for appellee. 3. Although the appellate powers of this count are given by the Constitution, they are nevertheless limited and regulated by acts of Congress [No. 1369.] 1892. Decided April 13 APPEAL from a decree of the Circuit Court trict of Virginia, dismissing a suit in equity National Bank and its late directors. On mo brought against the receiver of an insolvent tion to dismiss. Dismissed. of the United States for the Eastern Di The case is stated on the opinion. Messrs. William F. Frick, John Neely and G. M. Dillard in opposition. Messrs. R. M. Hughes and Alfred P. Thom, for appellees, in favor of motion. opinion of the court: Mr. Chief Justice Fuller delivered th This was a bill brought against the receiveof an insolvent national bank and its late di rectors, in the Circuit Court of the United States for the Eastern District of Virginia, to which a demurrer was sustained and the bill 1891, an appeal was allowed to this court, dismissed November 18, 1890. On August 20, bond for costs given and approved, and citation issued and served. The case comes before us on a motion to dismiss Section 4 of the Judiciary Act of March 3, 1891 (26 Stat. at L. 826, 827) provides: "That no appeal, whether by writ of error or other wise, shall hereafter be taken or allowed from any district court to the existing circuit courts, and no appellate jurisdiction shall here. after be exercised or allowed by said existing circuit courts, but all appeals by writ of error [or] otherwise, from said district courts shall Tonly be subject to review in the Supreme [571 572 JOHN F. BROWN, Plf. in Err., Court of the United States or in the Circuit | And here the appellate jurisdiction is not left v. THE COMMONWEALTH OF MASSA. (See S. C. Reporter's ed. 573-580.) Jurisdiction to review state decision-motion in arrest of judgment-Federal question. By section 5 it is provided that appeals or 1. of such cases. 3. In order to give this court Jurisdiction to re view 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 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. Errors cannot be availed of by motion in arrest of judgment, unless appearing on the face of the record. Where the judgment of the highest court of the State was put upon the ground that the objections taken were not open atter verdict, independently of the opinion of that court that the objections had no merits, and that ground was sufficient to support the judgment, no Federal question is involved, and this court has no jurisdiction. [No. Argued April 6, 1892. ERROR to the 839.] Decided April 18, 1892. review the cou Superior Court of the See same case below, 147 Mass. 585, 1 L. R. A. 620. In view of the general rule that if a law con I ferring jurisdiction is repealed, without any reservation as to pending cases, all such cases viction and sentence of Brown, plaintiff in erfall with the law (Baltimore & P. R. Co. v. ror, for forging a discharge for money payable Grant, 98 U. S. 398 [25: 331]: Gurnee v. Pat by the county or town of Nantucket. Disrick County, 137 U. S. 141, [34: 601]), a joint missed for want of jurisdiction. resolution was passed on March 3, 1891, providing "that nothing in said Act shall be held | or construed in any wise to impair the jurisdiction of the Supreme Court or any Circuit Court of the United States in any case now pending before it;" and it was added, "or in respect of any case wherein the writ of error or the appeal shall have been sued out or taken to any of said courts before the first day of July, anno Domini, eighteen hundred and ninety-one." 26 Stat. at L. 1115, 1116. Statement by Mr. Justice Gray: An indictment was found by the grand jury in the superior court for the county of Nantucket and Commonwealth of Massachusetts, on chap. 204, §§ 1, 2, of the Public Statutes of Massachusetts, containing twenty-four counts, each of which was for forging, or for uttering, a discharge for money payable by the county of Nantucket, or by the town of Nantucket, with intent to defraud the county, or the town. The town and county of Nantucket are geographically identical, the selectmen of the town have the powers of county commissioners; the town may raise money to pay the ex The case in hand did not come within either of the six classes of cases specified in section five; and as the appeal was not taken until after July 1, 1891, it must be dismissed. Wanton v. De Wolf, 142 U. S. 138 (35:965], When the decree was entered, appellants had two years thereafter in which to take an appeal to this court. The Act and resolution of March 3, 1891, declared that the right must be exercised prior to July 1, 1891. Although the appellate powers of this court are given by the Constitution, they are nevertheless limited and regulated by acts of Congress, Durousseau v. United States, 10 U. S. 6 Cranch, 307, 314 [3: 573 282, 21. In that case it was held that the afirmative description of jurisdiction implied struction of state laws, see notes to Commercial Bank a negative on the exercise of such appellate of Cincinnati v. Buckingham, 12:169, and to Hart power as is not comprehended within it."v. Lamphire, 7: 679. NOTE. As to jurisdiction in the United States Supreme Court, where Federal question arises, or where are drawn in question statutes, Treaty or Constitu tion, see notes to Martin v. Hunter, 4:97; Matthews v. Zane, 2: 654, and Williams v. Norris, 6: 571. to declare state law roid as in conflict with state conAs to jurisdiction of Umted States Supreme Court stitution; to revise decrees of state courts as to con 74] 575) peuses of the county: and the treasurer of the town is county treasurer. Mass. Pub. Stat. chap. 22, 29; chap. 23, 4. By the general Jury Act of Massachusetts, in every town, lists of persons qualified to serve as jurors are prepared annually by the selectmen, and are subject to revision by the town in town meeting; and all grand jurors and traverse jurors are drawn by lot from the names on such lists. Mass. Pub. Stat. chap. 170, 6-22. That Act contains the following provisions: 64 SEC. 38. In indictments and penal actions for the recovery of a sum of money or other thing forfeited, it shall not be a cause of challenge to a juror that he is liable to pay taxes in a county, city or town, which may be benefited by such recovery, SEC. 39. If a party knows of an objection to a juror in season to propose it before the trial, and omits to do so, he shall not afterwards be allowed to make the same objection, unless by leave of the court. ing the same objections to the grand and traverse juries; and further alleging that before the finding of the indictment the selectmen had been directed, by a vote of the town at a meeting duly warned, to prosecute the defendant for the offenses described in the indictment, and pursuant to that vote employed counsel, and a majority of them, with the approval of the others, made a complaint against the defendant for those offenses before a trial justice, who was himself an inhabitant and voter of the town, and had taken part in the town meeting and in its vote, and had there declared that the defendant was guilty, and. before the making of the complaint, had advised and counseled with the selectmen as to the furtherance of the prosecution that the selectmen prosecuted the complaint, and obtained an order from the justice requiring the defendant to recognize for his appearance before the superior court, and prepared evidence and sought out witnesses to be produced against him before the grand jury; that while engaged in furthering such prosecution the selectmen prepared the list from which were drawn the grand and traverse jurors who found and tried the indictment against the defendant; that at the town meeting at which "SEC. 40. Noirregularity in a writ of venire The defendant pleaded in abatement to the array of the grand jury, and afterwards to the array of the traverse jury, upon several grounds, the only one of which relied on at the argument in this court was "because the names of said jurors were not drawn from the list of jurors in the manner provided by law." The district attorney filed a replication to each pica; and at the bearing thereon it appeared that the crimes charged in the indictment were committed, if at all, in regard to vouchers presented to the town and county treasurer, with intent to defraud the town or the county; and the defendant requested the court to rule, that by reason of bias and interest a grand jury (or a jury") "drawn and made up from the inhabitants of the town and county of Nantucket was not competent to make a presentment (or to "try an indictment") "for crimes against the county or town treasury." The court declined so to rule, and overruled each plea; the defendant duly excepted to each ruling, and pleaded not guilty, and was there upon tried and convicted; and his exceptions were overruled by the Supreme Judicial Court of Massachusetts, for reasons stated in the rescript sent down to the superior court as follows: The jurors were not disqualified to serve by reason of interest as inhabitants of the town or county of Nantucket." The opin ion then delivered is annexed to the transcript of the record, as required by Rules of this court, and is reported in 147 Mass, 585, 1 L. R. of the twenty-three grand jurors who found the indictment, all but five had been present at the town meeting first mentioned, and had joined in the vote there adopted; and that for these reasons "the presentment and the trial and conviction of the defendant were in conflict with the provisions of the constitution of this Commonwealth, and in particular of the provisions of the twelfth article of the Declaration of Rights, and were in conflict with the Constitution of the United States of America, and in particular with the provisions of the 14th Amendment thereto." Together with the motion in arrest of judgment, the defendant filed an “exception to the jurisdiction," containing like allegations, and further alleging that by reason of the facts alleged the_grand jurors had no authority to present, and the traverse jurors had no authority to try, the indictment against the defendant, and the court had no jurisdiction to receive the presentment or to try the matter thereof. At the hearing of this motion and exception the district attorney admitted the facts alleged therein. The court overruled the motion and the exception. The defendant appealed from the order overruling the motion in arrest of judgment, and alleged exceptions to the overruling of his exception to the jurisdiction. The Supreme Judicial Court of Massachusetts aflirmed the order, and overruled the exceptions, for reasons stated in its rescript to the superior court as follows: "A motion in arrest of judgment can be sustained only for errors apparent on the record. The record discloses no error. The exception to the jurisdiction is nothing but a motion in arrest of judgment under arether name." ¦ In the opinion then delivered, and duly (576) [577] This objection was taken by a plea to the array of the grand jury, and was taken seasonably. Com. v. Parker, 2 Pick. 559; Com. v. Ryan, 5 Mass. 90; United States v. Richardson, 28 Fed. Rep. 61; 1 Chitty, Crim. Law, 305 et seq.; 2 Hale, P. C. chap. XXI. added: "It is difficult to see how any ques | Duncan, 7 Yerg. 271; Kitrol v. State, 9 Fla. 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. chap. 150, 7, 12; chap. 153, 15; McGuire v. Massachusetts, 70 U. S. 3 Wall. 382 [18: 164]; Bryan v. Bates, 12 Allen, 201, 205; Com. v. Scott, 123 Mass. 418. Messrs. H. W. Chaplin and R. D. Weston- The questions raised upon this writ of error Hayes v. Missouri, 120 U. S. 68 (30: 578); Spies v. Illinois, 123 U. S. 131 (31: 80); Strauder v. West Virginia, 100 U. S. 303 (25: 664); Virginia v. Rives, 100 U. S. 313 (25: 667); Ex parte Virginia, 100 U. S. 339 (25: 676); Cross v. North Carolina, 132 U. S. 131 (33: 287). At the common law, an indictment presented by a jury, one of whom is disqualified, is "void, revoked and forever holden for none." 1 Chitty, Crim. Law, 307; State v. Symonds, 36 Me. 128; State v. Jacobs, 6 Tex. 99; Wilburn v. State, 21 Ark. 198; 2 Hawk. P. C. chap. 25, $28; United States v. Hammond, 2 Woods, 197. The 14th Amendment guarantees a proper grand jury wherever the institution of the grand jury is the machinery of prosecution. There is much reason in this common law rule. Where a stranger is sworn and acts with the grand jury, it may be that a given presentment was made by twelve voices only of which bis was one. This goes to the root of the matter, and distinguishes this require ment from many others. Com. v. Davis, cited in 2 Pick. 559; Com. v. Parker, 2 Pick. 550, 559; United States v. Hammond, 2 Woods, 197; McQuillen v. State, 8 Smedes & M. 587; Barney v. State, 12 Smedes & M. 68; State v. Brown, 10 Ark. 78; State v. Another essential element of a grand and a trial jury is impartiality. McCregor v. Crane, 98 Mass. 530. The position of the selectmen as acting pros ecutors under a vote of the town, made them incompetent under the 14th Amendment to prepare the preliminary list of jurors; it male them incompetent to compose in their individual capacity, substantantially the whole town meeting held to revise that list and make it final. The fruits of this action are seen in the fact that eighteen out of the twenty-three grand ju rors 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. Richardson v. Welcome, 6 Cush. 331. 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 (28: 262); Hit People, 16 Mich. 351; Williams v. Ohio, 12 Ohio St. 622; Cancemi v. People, 18 N. Y. 128; Harris v. People, 128 Ill. 585; Morgan v. People, 136 Ill. 161. 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 14th Amend ment, as unduly clogging remedies. Callan v. Wilson, 127 U. S. 540 (32: 223). Even if this new question of fact does not, within the strictest meaning of the word "go to jurisdiction" it involves so gross an im propriety, and an abuse of the forms of justice so extreme as, in a proper exercise of judicial discretion, to vitiate the whole proceeding. Edson v. Edson, 108 Mass. 590; Bonham's Case, 8 Coke, 212; Oakley v. Aspinwall, 3 N. Y. 547: Chambers v. Clearwater, 1 Abb. App. Dec. 341. The fact that eighteen out of twenty-three grand jurors had joined in the vote for the prosecution which was being 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 in argument, 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, Atty-Gen. of Massachusetts, for defendant in error: A motion in arrest of judgment can be Even a question of jurisdiction, not appar Brown v. Webber, 6 Cush. 560; Com. v. Ed- The evidence is not part of the record, to It is plain that all the grounds of the "plea Beatty v. Benton, 135 U. S. 244 (34: 124); New The court will examine the whole opinion, Murdock v. Memphis, 86 U. S. 20 Wall. 590 Decision of state court is conclusive. Harrison v. Myer, 92 U. S. 111, 116 (23: 606, It is manifest that the writ of error is taken The court has not usually discussed or dis- Barrow v. Hill, 54 U. S. 13 How. 54 (14: 48); Irregularities and mere errors in the pro- courts. Kennard v. Louisiana, 92 U. S. 480 (23: 478). Brooks v. Missouri, 124 U. S. 394 (31: 454); v. Banning, 61 U. S. 23 How. 255 (16: 580); The claim that any Federal question of any Micas v. Williams, 104 U. S. 536 (26: 842); The statute of Massachusetts must be held Com. v. Brown, 1 L. R. A. 620, 147 Mass. The claim that he has been deprived of any No Federal question is involved in the judg-right or privilege common to the administra- ment. Jacks v. Helena, 115 U. S. 288 (29: 392): tion of justice is unfounded. Presser v. Illinois, 116 U. S. 252 (29: 615), |