[394] [435] [436] The facts are stated in the opinion. Mr. G. A. Jenks, Solicitor-Gen., for appel- navy as an enlisted man for six years and forty lants. (No counsel appeared for appellee.) Mr. Chief Justice Fuller delivered the opinion of the court: DeWalt, the appellee, was tried and convicted, upon an information, of the crime of embezzlement and making false entries as the president of a national bank, in violation of section 5209 of the Revised Statutes, and sentenced and committed to the penitentiary for ten years. This section prescribes the punishment of imprisonment for not less than five nor more than ten years, which imprisonment may be ordered to be executed in a state jail or penitentiary. R. S. § 5541. Appellee was subsequently discharged on habeas corpus, upon the ground that the crime in question was an infamous crime, for which he could not, under the Constitution, be held to answer on information, but only on presentment or indictment by a grand jury. From the order discharging him this appeal is prosecuted, and it is contended that a crime is not infamous which is not subject to the penalty of hard labor as part of the punishment of imprisonment. This, however, was otherwise ruled in Mackin v. United States, 117 U. S. 348 [29: 909], where this court held, speaking through Mr. Justice Gray, "that at the present day imprisonment in a state prison or penitentiary, with or without hard labor, is an infamous punishment." That case is decisive of this, and the order appealed from must be affirmed. UNITED STATES, Appt., v. JOHN G. FOSTER. (See S. C. Reporter's ed. 435-437.) Longevity Acts-claim for pay. 1. The Acts of 1882 and 1883 do not require or authorize a restatement of the pay accounts of an officer of the navy who served in the regular or volunteer army or navy, so as to give him credit in the grade held by him prior to their passage, for the time he served in the army or navy before reaching that grade 2. Congress only intended to give him credit in the grade held by him, after those Acts took effect, for all prior services, whether as an enlisted man or officer, counting such services, however separated by distinct periods of time, as if they had been continuous and in the regular navy in the lowest grade having graduated pay held by him since last entering the service. [No. 1162.] Submitted Nov. 5, 1888. Decided Nov. 19, 1888. PPEAL from a judgment of the Court of due him under what is known as the Longevity Acts of Congress. Reversed. Statement by Mr. Justice Harlan: This is an appeal from a judgment against the United States in favor of the plaintiff, Foster, for the sum of $1,393.40, as the amount due him under what is known as the Longevity Acts of Congress. Prior to November 28, 1861, he served in the days; and he served as gunner in the regular navy from November 28, 1861, until April 14, 1868, a period of six years and one hundred and forty-five days, when he resigned. He was reappointed gunner December 27, 1869, since which date he has served continuously in that capacity. Under the Longevity Acts of 1882 and 1883 (22 Stat. at L. 284, 287, c. 391; Id. 473, c. 97) he has been allowed credit, for prior services only upon his second warrant as gunner, and he has been credited upon that warrant with twelve years and one hundred and eightyfive days, the entire period of his service, as enlisted man and gunner prior to his re-entering the service on the 27th day of December, 1869. If he had been allowed on his first warrant as gunner, for his previous service of six years and forty days as an enlisted man, he would have received, as the result of such credit, the sum of $1,393.40, the amount of the judgment below, exclusive of the thirtythree and one third per centum increase under General Order, No. 75, of May 26, 1866. Between the date of his resignation on April 14, 1868, and his reappointment as gunner December 27, 1869, the plaintiff held no position in the navy. The Longevity Act of 1883 (the addition to the Act of 1882 being shown by italics), under which the present claim is made, provides that "All officers of the navy shall be credited with the actual time they may have served as officers or enlisted men in the regular or volunteer army or navy, or both, and shall receive all the benefits of such actual service in all respects in the same manner as if all said service had been continuous and in the regular navy in the lowest grade having graduated pay held by such officer since last entering the service; Provided, That nothing in this clause shall be so construed as to authorize any change in the dates of commission or in the relative rank of such officers; Provided, further, That nothing herein contained shall be so construed as to give any additional pay to any such officer during the time of his service in the volunteer army or navy." [437] 22 Stat. at L. 284, 287, c. 391; Id. 473, c. 97. Messrs. A. H. Garland, Atty-Gen., Robert A. Howard, Assist. Atty-Gen., and F. P. Dewees, Assist. Atty., for appellant. Messrs. Robert B. Lines and John Paul Jones, for appellee. Mr. Justice Harlan delivered the opinion of the court: There is no claim that the plaintiff did not receive, on his first warrant as gunner, that is, for the whole period of his first continuous service in that position, all the compensation to which he was entitled as gunner, under the law as it was during that period. And it is found, second warrant as gunner, for the actual time of his entire service prior to December 27, 1869, both as enlisted man and gunner, counting such service as if it had been continuous and in the regular navy in the lowest grade having graduated pay held by him after he reentered the service, that is, in the grade of gunner. In our judgment, he is not entitled to more under existing legislation. The Acts [395] of 1882 and 1883 do not require or authorize a Mr. Chief Justice Fuller delivered the [396] opinion of the court: 1. This court will act only upon the record of the court below; and the petitions for a writ of error form no part of the record. 2. In order to review a state judgment it is essential that the record should disclose not only that the alleged right, privilege or immunity was specially set up and claimed in the court below but that the decision of the court was against the right so set up or claimed. 3. Where the evidence upon which the plaintiff in error was convicted is not made a part of the record, nor what it tended to establish is anywhere therein stated, and certain instructions to the jury were requested and refused, it cannot be determined whether the action of the court involved the point now alleged as error, or whether the refusal to give the instruction amounted to a ruling and denial of such claim. 4. Where plaintiff in error was indicted and convicted and sentenced in the Court of Quarter Sessions of Allegheny County, Pennsylvania, and applied to a judge of the supreme court of that State for a writ of error to the court of quarter sessions which was denied, and he could go no farther, held, that the judgment of the latter court may be considered final for the purposes of a writ of error. [Nos. 1189, 1190.] Argued Nov. 5. 1888. Decided Nov. 19, 1888. ERROR to the Court of Quarter Sessions In the second case it appears that Clark and others were also indicted for that they "unlaw. fully did keep and maintain a house, room and place where vinous, spirituous, malt and brewed liquors and admixtures thereof were sold by retail, without having first obtained a license agreeable to law for that purpose;" and the indictment contained a further count that they "unlawfully did sell and offer for sale vinous, spirituous, malt and brewed liquors and admixtures thereof, without having first obtained a license agreeably to law for that purpose. Upon this indictment a trial was had, resulting in the conviction of Clark, and he was sentenced to pay a fine of $500 and to be imprisoned in the county jail for three months. Clark then applied in each case to one of the Judges of the Supreme Court of Pennsylvania for a writ of error to the court of quarter sessions, which was denied; and as Clark could go no farther, the judgments of the latter court may be considered final for the purposes of the writs of error granted in these cases. In the petitions for the writs it is stated that plaintiff in error was the part owner and captain of a steamboat actually engaged in navigating the Ohio, Monongahela and Allegheny Rivers as a passenger vessel, and as such duly licensed and enrolled under the laws of the United States, and that petitioner had complied with all of the laws of the United States in regard to steam vessels, including the payment of [397] a revenue tax for the purpose of selling liquor on said steamboat; and it is averred that by these judgments petitioner is denied "the rights and privileges secured by the Constitution of the United States." These matters are repeated in the briefs; and error was convicted is not made a part of the Io County Allegheny, to given to jury State of Pennsylvania, to review convictions The facts are stated in the opinion. and which were refused by the court of quar- part. Warfield v. Chaffe, 91 U. S. 690 [23: In the absence of anything in these records The writs of error must be dismissed, and it is 80 ordered. [394] THE PACIFIC POSTAL TELEGRAPH CABLE COMPANY, Plf. in Err., v. Hugh O'CONNOR. (See S. C. Reporter's ed. 894-395.) Motion to dismiss—jurisdictional amount. Submitted Nov. 12, 1888. Decided Nov. 19, 1888. IN ERROR to the Circuit Court of the United On motion to dismiss. Granted. It takes effect immediately after being pronounced by the court. Davis v. Shaver, Phil. L. (N. C.) 18; Osborne v. Toomer, 6 Jones, L. (N. C.) 440; Matthews v. Houghton, 11 Maine, 377; Fish v. Emerson, 44 N. Y. 876; Casement v. Ringgold, 28 Cal. 335. A judgment is rendered when declared by Gray v. Palmer, 28 Cal. 416; Wetherbee ▼. It was not in the power of the court below, N. Y. Elevated R. Co. v. Fifth Nat. Bank of N. Y. 118 U. S. 610 (80:259); Thompson v. Butler, 95 U. S. 696 (24:540). The court below erred in allowing defendant in error to prejudice the right of plaintiff in error to a review of the judgment by this court. Smith v. Memphis & L. R. Co. 18 Fed. Rep. 804. Mr. Chief Justice Fuller delivered the opinion of the court: This was an action to recover damages for personal injuries, which resulted, August 29, 1888, in a verdict for $5,500. Upon the return of the verdict the court directed, as minuted by the clerk, judgment to be entered thereon. On the 30th day of August the plaintiff below, by his counsel, asked leave in open court to remit the sum of $500, which was granted, and judgment rendered for $5,000 and costs, "and now so appears of record." Subsequently the defendant below moved to set aside the allowance of the remittitur and denied by the court, and defendant excepted, [395] to correct the judgment, which motion was and by bill of exceptions brought the court's direction to the clerk of August 29th into the record, and the fact that the judgment of August 30th was rendered in the absence of defendant and his counsel. A writ of error having been subsequently prosecuted to reverse the judgment, defendant Mr. D. M. Delmas, for defendant in error, in error moves to dismiss it for want of jurisfor motion to dismiss: A writ of error will be dismissed for want of Jurisdiction in a case such as is presented in the record in this case. Thompson v. Butler, 95 U. S. 694 (24:540): Ala. Gold L. Ins. Co. v. Nichols, 109 U. S. 233 (27:916); First Nat. Bank of Omaha v. Redick, 110 U. S. 224 (28:124). The order made, after judgment, refusing to set aside the order allowing a remission of a portion of the verdict, was one resting wholly in the discretion of the court below, and a writ of error in this court will not lie from such order. Thompson v. Butler, 95 U. S. 695 (24:915); Home Ins. Co. v. Barton, 80 U. S. 13 Wall. 603 (20:708). Messrs. Lloyd & Wood and Andrew Wesley Kent, for plaintiff in error, in opposi tion: The court below having rendered judgment for $5,500 the writ of error lies. A judgment is not what is entered, but what is ordered and considered. Freeman, Judgm. §§ 38, 89. diction. 1 [465] ants in common or as joint tenants; but each becomes seised of the entirety. Neither can dispose of any part without the assent of the other, but the whole remains to the survivor under the original grant. 2. At common law, also, when lands are granted to husband and wife as tenants in common, they will hold by moieties, as other individual persons would do. her. 3. Where the wife has obtained a decree, quieting her title as between her and her husband's heirs and his grantee to an undivided half of lands conveyed to herself and husband; and has also joined with such grantee, in seeking relief, as co-owners, against an execution sale of a parcel of the land, and the rectification of a mistake in the deeds, and the vesting of title in herself and such grantee, and such relief was accorded by the decree, these adjudications, standing unreversed, are binding upon 4. The seal of secrecy upon communications between client and attorney is the privilege of the client; and if the latter has voluntarily waived the privilege, it cannot be insisted on to close the mouth of the attorney. If the client testifies to what took place between himself and his attorney, he waives his right to object to the attorney's giving his own 5. Where the husband and wife purchased the separate halves of a piece of land at different times, and with the intent of holding in moieties, and conveyed the husband's half to a purchaser who paid therefor in good faith and without actual notice and for a valuable consideration, the wife cannot, years afterwards, insist that she acquired an estate by entirety, although a second deed was so drawn as to run directly to the husband and wife, and was given at the time they were conveying to such pur account of the matter. chaser. The cause was heard and the bill dismissed March 10, 1884, and from that decree this appeal is prosecuted. The case made upon the pleadings and evidence appears to be as follows: Sallie S. Blackburn, then Sallie S. Buck, wife of Walter A. Buck, on the 24th day of April, 1868, purchased of one Shepard an undivided half of 973 acres of land in Desha County, Arkansas, partially improved, and took a title bond stipulating for a mode of division to be made between her and her vendor, as soon as practicable, so that each should have half the improved land, and for a conveyance in fee to Mrs. Buck when the division was made. Mrs. Buck was put in possession of an undivided half in accordance with the agreement. In June, 1868, W. A. Buck, the husband, purchased the other half of Shepard, who gave him a written memorandum evidencing the purchase. Buck then, in January, 1869, sold his half to J. S. Drake, conveying the same to him on the second day of that month by warranty deed, in which his wife, Sallie S., joined, her acknowledgment being that for relinquishment of dower. The evidence tends to show that during 1868 Shepard executed and delivered a deed of the property to Mr. and Mrs. Buck, so drawn as to recognize their separate interests, which deed Buck sold to Drake, the latter's then attorney was not recorded, but in January, 1869, when was not satisfied and drew another deed of the entire property for Shepard to execute, which he did, running directly to Walter A. Buck and Submitted Nov. 1, 1888. Decided Nov. 26, 1888. Sallie S. Buck, and bearing the same date as the 6. Such second deed could not devest the title which had once vested in the husband and wife, by the former conveyance from the same grantor, nor alter its nature. [No. 16.] APPEAL from a decree of the District Court of the United States for the Eastern District of Arkansas, dismissing a suit to quiet title to lands and for partition. Reversed." Statement by Mr. Justice Fuller: Hunt filed his bill in equity in the District Court for the Eastern District of Arkansas, on the 25th of June, 1881, against Sallie S. Blackburn, Charles B. Blackburn, and W. P. Smith, claiming as a purchaser for value, with the knowledge and assent of Sallie S. Blackburn, of an undivided half of a plantation in Desha County, Arkansas, of which the defendant, Sallie S. Blackburn, owned the other half; and deraigning title by sundry mesne conveyances from one Shepard to W. A. Buck, whose wife said Sallie S. then was, by Buck and wife to Drake, Drake to Winfrey, who, as Hunt alleged, purchased for value with Mrs. Buck's knowledge and assent, Winfrey's assignee to Weatherford, and Weatherford to himself; setting up certain decrees hereinafter mentioned, and praying, after averments appropriate to such relief, that his title be quieted, and for partition. Defendant Sallie S. Blackburn answered April 25, 1883, asserting sole ownership of the lands under a deed from Shepard to W. A. Buck, her then husband, and herself, and charging, in respect to the decrees upon the title, that she was misled by her attorney and confidential adviser, Weatherford, as to her rights, and was not estopped thereby or by any conduct of hers, in faith of which either Winfrey or Hunt acted in purchasing. deed to Drake, January 2, 1869. Drake and Buck and wife farmed the land in partnership up to 1872, when, on the 7th of February of that year, Drake sold to J. T. Winfrey, and gave him an agreement to convey. In the mean time Buck died; and on the 11th day of March, 1872, Mrs. Buck filed her sworn bill in equity against the children and heirs at law of Buck, deceased, Shepard, Drake, Winfrey and others, in the Circuit Court of Desha County, claiming an undivided half of the land, setting forth the ownership by her husband of the other half, his sale to Drake and Drake's to Winfrey, and praying that her title to "said undivided half of said property" be quieted, and for partition. Upon this bill a decree was rendered September 12, 1873, which found the purchase by Mrs. Buck of Shepard, April 24, 1868, of an undivided half of the lauds, and the subsequent purchase by Buck of the other half, and Buck's sale and conveyance of "his half of said land" to Drake, and quieted Mrs. Buck's title to an undivided half. Shepard derived title to the lands through a purchase under a deed of trust given by Henry J. Johnson to one Tate, and by mistake one parcel was omitted from the trust deed, and the mistake had been inadvertently carried through all the successive conveyances down to the Bucks. In 1872, Randolph, a judgment creditor of Johnson, had caused an execution to be levied on the omitted parcel, and Mrs. Buck and Drake filed a bill in the Desha Circuit Court against Randolph, Winfrey and others, to enjoin sale upon the execution, correct the mistake, quiet the title, and compel Winfrey to complete his purchase. Pending the suit, Mrs. Buck changed her name by intermarriage with [466] [467] [468] Blackburn, who was made a party, and subse- This case went to decree, dismissing the bill, During 1878 Winfrey filed his voluntary petition in bankruptcy in the United States District Court for Middle Tennessee, scheduling half of the lands among his assets, and the register in bankruptcy conveyed, November 1, 1878, to Harry Harrison, Winfrey's assignee. The property was sold and conveyed by the assignee to Weatherford, January 30, 1880, and Weatherford conveyed to Clarence P. Hunt, July 11, 1880. that he purchased the property at the assignee's Weatherford was not, at this time, acting as In 1875 Mrs. Blackburn wrote Weatherford: "It is Mr. Drake's half of the place that has been sold for taxes, and not mine. I think Mr. Winfrey has given up all idea of having anything to do with the place, as they have all left here, and I am in possession and never intend to give it up until Drake and Winfrey settle, and I know to a certainty who it belongs to, so I can bave a permanent division. I am having rails made, so as to fence my half when I know where it is." This letter and some others in the record were apparently written to Weatherford as a friend rather than as an attorney; but a motion was made on behalf of Mrs. Blackburn to suppress Weatherford's depositions, of which there [469] were two, and the letters, upon the ground that the former related to matters communicated to Weatherford in confidence as her attorney, and that the letters were equally confidential. Mr. J. B. Heiskell, for appellant: Mrs. Buck's act in joining in the sale, her statements in her two bills, her parol statement to Weatherford, and her letters to him, acted upon by appellant Hunt, form an estoppel in pais. lin v. Mitchell, 121 U. S. 411 (30:987). The law of Arkansas is in strict accord with Trapnall v. Burton, 24 Ark. 399; Shall v. Stowe v. U. S. 86 U. S. 19 Wall. 13 (22: 144); (No counsel appeared for appellees.) Mr. Chief Justice Fuller delivered the opinion of the court: Undoubtedly, at common law, husband and wife did not take, under a conveyance of land to them jointly, as tenants in common or as joint tenants, but each became seised of the entirety, per tout, et non per my; the consequence of which was that neither could dispose of any part without the assent of the other, but the |