does not appear to have been claimed that any provision of the constitution of the United States guarantied to him such a jury. That the sixth article of the amendments contains no such guaranty as to trials in the state courts has always been held. Spies v. Illinois, 123 U. S. 131, 166, 8 Sup. Ct. Rep. 22, and the cases there cited.

These are all the assignments of error which relate to the rulings in the progress of the trial, and they fail entirely to present any questions of federal law for our consideration. So far as appears, the trial court, in its decisions, was governed exclusively by the constitution and laws of the state; and the supreme court in its opinion on this part of the case, which is in the record, makes no mention whatever of any claim of right under the constitution or laws of the United States.

Section 1967, Rev. St. Mo., relating to crimes and criminal procedure, is as follows: "The motion for a new trial shall be in writing, and must set forth the grounds or causes therefor, and be filed before judgment, and within four days after the return of the verdict or finding of the court, and shall be heard and determined in the same manner as motions for new trials in civil cases.' The verdict was rendered June 5, 1886; and on the ninth of that month, before judgment was entered, the defendant filed a motion for a new trial. Afterwards, on the seventeenth of June, he presented and asked leave to file a supplemental motion for a new trial, setting up the following additional reason: "(1) Because Jesse F. Sears, one of the jurors, who sat upon the trial of this cause, upon his examination on the voir dire, purposely and untruthfully answered the questions asked him by counsel for the state and the defense in such a manner as to indicate and cause said counsel to believe, and in such a manner that the defendant and his counsel did believe, he was a fair and impartial juror, and one who had no prejudice or bias in the case, and who had neither formed nor expressed any opinion as to the guilt or innocence of the accused, and thereby induced the defendant to accept him as a qualified juror in the case; whereas in truth and in fact said juror was not a fair and impartial juror, and he had a prejudice and bias against the defendant herein, and had, prior to his said examination upon his voir dire, on many occasions expressed his opinion, and declared that Maxwell, the above-named defendant, was guilty of murdering his companion, Preller, and that he ought to be hung, and would be hung, and that hanging was too good for him, and other similar expressions; all of which was by said juror improperly and wrongfully concealed upon his examination upon his voir dire, and only came to the knowledge or hearing of the said defendant, or either of his counsel, long after the rendition of the verdict herein, and also after the filing of the first or original motion for a new trial herein, and after the expiration of the four days allowed by statute within which to file a motion for a new trial.” In support of this motion, the defendant presented the affidavits of four persons to the effect that they had each, on different occasions, heard the juror referred to express opinions of the character of those alleged, and also the affidavits of the defendant and his counsel that they had neither of them any "knowledge, idea, suspicion, or intimation" of the "facts set out and stated" in the other affidavits until "after the expiration of the four days allowed by the statute within which to file a motion for a new trial." The record then states that the motion for leave to "file said supplemental motion for a new trial, and the aforesaid affidavits," was argued, and that "in this argument counsel for the defendant contended and made the point that if the statute declaring that in criminal cases a motion for a new trial, with the reasons therefor, must be filed within four days after verdict, prevented the court from hearing the aforesaid supplemental motion for a new trial, and the affidavits offered therewith, and the matters and facts therein stated, and from granting defendant a new trial upon said facts if found to be true, then said statute was null and void, as being in violation of the constitution of the state of Missouri and of

that of the United States, especially those provisions of the state constitution declaring that in criminal prosecutions the accused shall have the right to a speedy, public trial by an impartial jury of the county,' and that no person shall be deprived of life, liberty, or property without due process of law;' and those provisions of the United States constitution which declare as follows, to-wit: Nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."" The court, after taking the matter under advisement, overruled the motion, "on the ground that the court had no power or right under the statute to grant said request." Upon this branch of the case the supreme court, according to its opinion in the record, ruled as follows: "This statute is mandatory, and, according to the uniform ruling of this court since the case of Allen v. Brown, 5 Mo. 323, a refusal to grant a new trial on a motion made more than four days after the trial is not error; and it has been further held that, unless it affirmatively appears by the record that the motion for a new trial was filed within four days after trial, this court will not consider the question it presents. Welch v. City of St. Louis, 73 Mo. 71; Moran v. January, 52 Mo. 523, and cases cited. In the case of State v. Marshall, 36 Mo. 400, when defendant was convicted of murder in the first degree, it is said: No exceptions will be noticed here when no motion for a new trial has been made, or, what is the same thing, when none is made within the time prescribed by law.' If authority is to be found putting it in the discretion of the court to authorize the filing of a supplemental motion for new trial, in view of the time the court gave defendant to make proof of the matter set up in the motion which was filed in time, and in view of the length of time consumed in the trial, we would be unwilling to say that the court exercised its discretion arbitrarily in refusing such an application." It thus appears that, while upholding the statute, the court also put its decision on another ground, which was equally conclusive against the defendant, to-wit: That even if the trial court could, in its discretion, allow the additional reason for a new trial to be presented after the expiration of the four days, there had been no such abuse of that discretion in this case as would justify a reversal of the judgment on that account. That part of the decision is certainly not repugnant to any provision of the constitution or laws of the United States, and it is of itself conclusive. It was fairly presented, and necessarily involved in the case. It disposed of the supposed constitutional question presented in the argument without a direct decision, upon a ground which cannot be reviewed by us, and which was not evasive, merely, but real. Chouteau v. Gibson, 111 U. S. 200, 4 Sup. Ct. Rep. 340; Adams Co. v. Railroad, 112 U. S. 126, 127, 5 Sup. Ct. Rep. 77; Chapman v. Crane, 123 U. S. 540, 548, 8 Sup. Ct. Rep. 203, 211. Such being the case, the decision of the alleged federal question was not necessary to the judgment rendered, and consequently is not sufficient to give us jurisdiction. Murdock v. Memphis, 20 Wall. 590, 636.

The motion to dismiss is granted.

UNITED STATES v. JOHNSTON.
(January 9, 1888.)

UNITED STATES-SETTLEMENT OF ACCOUNTS WITH TREASURER-CAPTURED AND ABANDONED PROPERTY-REOPENING.

Under act Cong. July 2, 1864, the collection of captured and abandoned property within the districts dominated by the seceding states in the civil war was given to the secretary of the treasury, and devolved upon him the execution of the statute in question, through his appointed agents, and in the absence of fraud, positive violation of the statute, or contravention of public policy, a settlement made by the treasurer with an agent will not be set aside on mere technicalities, especially after the agent's remedy is barred by lapse of time.

In Error to the Circuit Court of the United States for the Southern District of New York.

This writ of error brings up for review a judgment for the defendant in error in an action brought against him on the twenty-ninth day of April, 1879, for the value of certain cotton which came to his hands, as an assistant special agent of the treasury department, in the year 1865, and which, it is alleged, he has not accounted for to the plaintiff, but converted to his own use. The defendant became such agent on the eighth of May, 1865, under a written appointment by the secretary of the treasury. He was charged with the duty of receiving and collecting such cotton in the counties of Lowndes, Monroe, Oktibbeha, and Noxubee, in the state of Mississippi, as had been purchased by or was held on account of the so-called Confederate States government, and of forwarding the same to agents of the department at Memphis or Mobile, as, in his judgment, was best for the government. His commission was accompanied by a letter of instructions requiring him, with as little delay as possible, to ship the cotton received or collected to William W. Orme, supervising special agent at Mobile, "sending forward with each lot an account of expenses, (which will be paid by them,) together with a full record of the cotton shipped, etc., as required by the fourth regulation concerning captured, abandoned, and confiscable personal property." He was informed that his compensation would be thereafter fixed, and would depend, in great measure, upon the result of his efforts; but that it should be reasonable and liberal for the services performed. The defendant, in his answer, denied that he had omitted to account for any cotton received or collected by him as such agent. For further defense, he alleged that after the times mentioned in the complaint, and on or about March 15, 1866, a just, true, and full accounting of his acts as such agent was had with the United States, upon which he surrendered all papers, documents, and vouchers in his hands relating to his agency; that upon such accounting the sum of $33,972.59 was awarded to him, of which $2,186.69 represented his per diem allowance, and the balance his commissions; that said per diem allowance was paid on the fifteenth of May, 1866, and said commissions on the fifteenth of January, 1868; and that he was thereupon fully released, acquitted, and discharged from liability of every kind to the government. By agreement of the parties, the issues were heard and determined, in the first instance, by Hon. William G. Choate, as referee, who made a report of his special findings of fact and law, accompanied by an elaborate opinion, in support of the conclusion that the defendant was entitled to a judgment dismissing the complaint on the merits. The case was subsequently tried by the court; the parties, by written stipulation filed, having waived a jury. The court adopted the special findings of fact made by the referee as its own findings, and dismissed the complaint.

The several lots of cotton in question were delivered to one Stewart, of Mobile, in the latter part of the year 1865. The circumstances under which they were delivered were, according to the findings of fact, as follows: The cotton in the counties constituting defendant's district was stored at various points more or less remote from the Mobile & Ohio Railroad; much of it in very bad condition, requiring rebaling, or new covering and ropes. In consequence of many impediments, arising from the unsettled state of the country, to the successful execution by the defendant of his duties by agents of his own selection, be obtained special authority from the secretary of the treasury to make contracts with responsible persons for collecting cotton, putting it in shipping order, and delivering it at the railroad; the contractors to be paid in kind at the time of delivery, or in money after the cotton had been sold, and the proceeds realized by the government. The first lots of cotton were shipped to Dexter, the supervising agent at Mobile. Afterwards, the defendant was directed by the secretary to ship, and he did ship, the cotton directly through

his own agents at Mobile, to Simeon Draper, at New York, who had been appointed as the general agent of the treasury department to sell all the cotton collected in the South. Defendant's first agents at Mobile were Weaver & Stark, but on August 14, 1865, he appointed one Cuny. The government did not furnish money to pay the expenses attending the collection, transportation, and shipping. But Cuny undertook with the defendant to stle all bills for railroad freights, the weighing and pressing of the cotton, and other incidental expenses connected therewith up to the time of shipment to New York, and he also agreed with the defendant to furnish the means necessary to cover such expenses. He arranged with Stewart at Mobile to provide means for these purposes, the latter to be reimbursed from time to time by government cotton at the market value. Stewart accordingly made large advances to Cuny between September 4, 1865, and January 26, 1866. These advances included $9,307.21 of expenses which Dexter, supervising special agent for the treasury department for the district in which Mobile was situated, incurred on cotton from Johnston's district, and which expenses Dexter insisted should be paid by the defendant. The latter at first declined to pay that bill; but subsequently, upon the advice of Mellen, a general agent of the treasury department, he sold cotton to meet it. Under the arrangement between Cuny and Stewart, the latter received between October 17, 1865, and December 16, 1865, different lots of cotton, aggregating 483 bales, which is the cotton now in question, and gave credit therefor, at its market value, in his account with Cuny for advances. The total value of this cotton was $82,300.24. Stewart. paid the internal revenue tax of two cents per pound-$3,486.64--on all except the last 100 bales, leaving $79,813.60 as the net value of the cotton. The first of these transfers to Stewart was without the knowledge of the defendant, but he subsequently approved or acquiesced in what Cuny did. This disposition of the 483 bales was without authority from the plaintiff, except as to the part used in meeting Dexter's bill. The following additional facts were found by the court below:

"August 18, 1865, the secretary of the treasury issued a general letter of instructions directing all cotton to be forwarded to Simeon Draper, at New York, for sale, and that all money required by supervising agents to defray expenses should be sent upon their estimates therefor made to the secretary on the first of each month. In September, 1865, Mr. Johnston had made an arrangement to draw against Simeon Draper, at New York, for the expenses. on the cotton incurred at Mobile, including the cost of transportation to Mobile, and such drafts were drawn accordingly to the amount of upwards of $150,000 between the twenty-ninth of November, 1865, and the thirty-first. of January, 1866. The drafts included one dollar a bale commission, which. defendant paid to Cuny on the cotton shipped by him after the drafts were paid. To carry out his instructions, that these drafts should be accompanied by vouchers showing the details of the expenses drawn for, the receipted bills. of the railroad company paid by Cuny through the advances made by Stew-art, and other bills so paid, were surrendered, and duplicate receipts were taken to conform to the shipments to Draper, against which drafts were. drawn, and these duplicate vouchers accompanied the drafts. The same ex-penses which had thus been paid out of the cotton transferred to Stewart, to the amount of about $68,000, were included in the drafts upon Draper, and by him paid to Johnston, so that as to these 483 bales the defendant had been a second time paid by the government to that extent, the expenses for the payment of which they had been transferred to Stewart. On the eleventh of Jan-uary, 1866, the secretary of the treasury, by letter, called upon the defendant to make up and forward a full statement of his transactions; and some time in the month of February, 1866, the defendant and his chief clerk, Dr.. Vaughan, went to Washington with their books and papers, and an account current or summary statement which had been made up at Columbus, pur

porting to show the whole amount of cotton collected by the defendant, and the disposition thereof. They were referred, by the subordinate in the secretary's office in charge of the captured and abandoned property division, to the commissioner of customs, who at that time, under direction of the secretary, had charge of the examination and passing of similar accounts. Meanwhile, however, certain charges against the defendant had been received in the treasury department from the war department, and the secretary directed that these charges should be answered before the defendant's account was passed upon, and a special reference of these charges was made by the secretary for examination to a clerk in his office named Parker, since deceased. These charges were satisfactorily answered, and the examination of his accounts by the commissioner of customs followed. Some objections were made to the form of the account of cotton collected, and a new account was made up upon blanks furnished by the office of that part of the transactions. the account current or summary statement made up at Columbus, the 483 bales of cotton in question were stated as follows:

"Sold by R. H. Cuny, to pay bills of Dexter and others,

483'

"At the suggestion of the examining officer in the commissioner's office, a new summary statement was made up by Dr. Vaughan, dividing this item into two, namely:

"Sold by consent of General Agent Mellen, by R. H. Cuny, to pay Dexter's bill of expenses,

"Sold and proceeds paid to officers and garrisons to secure protec

55

428'

tion to cotton in their charge, and to repel thieves, "The only vouchers now remaining on file in the treasury department in support of this last item are two affidavits, one by the defendant and the other by Dr. Vaughan, the defendant's clerk and chief assistant, sworn to at Washington, during the pendency of this examination, showing payments to military officers for extra vigilance in guarding the cotton, protecting it against thieves and raids; copies of which are hereto annexed, marked Schedules C and D.' The number of bales assigned to the item of Dexter's bill does not conform to any particular lot of cotton, part of the 483 bales transferred to Stewart, but is substantially correct, as representing, upon an average of the net proceeds of the cotton, the amount of Dexter's bill. There was exhibited to the officers appointed by the secretary to examine his accounts some proofs of large expenditures of money, which, together with the payments to military officers, they held to be sufficient to justify them in passing this item. These expenses, aside from the payments to military officers, aggregated about $68,000, and the military payments about $29,000. These expenses, other than the military payments, were properly and necessarily incurred by the defendant in the discharge of his duty as assistant special agent in the care and protection of the cotton after its delivery by the contractors, and all these payments, including the military payments, were made necessary by the unsettled state of the country, the great accumulation of the cotton which the railroad company was unable to transport, the danger of theft and robbery, and the interference of other agents or persons claiming to be agents of the treasury department and of military officers. The military payments included $10,000 daid out for Colonel Young, which, however, was not proved to have been received by him, and which the defendant collected from the contractors. These military payments were all made in the bona fide belief that they were necessary to protect the interest of the United States in the cotton, to secure increased vigilance, or to prevent connivance with parties interfering with or attempting to interfere with the cotton.

"The result of the examination of the account in the office of the commissioner of customs was that the commissioner wrote to the defendant a letter dated the fifteenth March, 1866, as follows: Your property accounts as assistant special agent of the treasury at Columbus, Mississippi, from May 8, v.8s.c.-29