Pacific Bank being credited as a depositor and | regard to any subsequent agreement between drawing on the Security Bank against the the cashiers of the two banks as to the holding checks; and although it was in accordance of the deposit by the Security Bank. The with that custom that Mr. Whitney, the cashier court ruled that the issues involved in such [231] of the Pacific Bank, sent the checks and drafts, second and third questions were immaterial; amounting to $10,967.95, to the Security Bank, and this court cannot hold otherwise, on the on Monday, May 22, 1882, to be cleared by it, facts set forth in the bill of exceptions. "Any drawing for the $11,008.20 at the time, and re- subsequent agreement" must have been made ceiving in return, on its own request, from the after the receiver had been actually appointed, Security Bank, a negotiable certificate of deposit and could not affect his rights. of that bank, payable to the order of Mr. Whitney on the return of the certificate properly indorsed; yet Mr. Whitney knew at the time of these transactions that the certificate of deposit for $10,000, given by him to the Security Bank nine days before, created an indebtedness of the Pacific Bank to the Security Bank for that amount, and was, though negotiable, presumably still held by that bank. It was in fact still held by it. The natural presumption was that, if the certificate were still held by the Security Bank, that bank would, as soon as it should learn that the Pacific Bank was closed to business, seek to retain out of the collections the amount of such certificate, and apply that amount to its payment. The defendant objects that the rulings of the district court were made, and the verdict and judgment were rendered generally, on the plaintiff's declaration of three counts; and that the first count, which seeks to recover back the money deposited as an unlawful payment, is inconsistent with the second count, which seeks to recover on the certificate of deposit as a valid instrument. It is a sufficient answer to this contention to say, that no objection was made to the declaration by way of demurrer or otherwise, at the trial or before, and no ruling on the subject was asked for at the trial, or was made the subject of an exception. No objection or exception was taken to the verdict, nor did the defendant request at the trial that the plaintiff should elect on which count he would ask a verdict; nor did the defendant request the court to ask the jury to state on which count of the declaration the verdict was rendered. We see no inconsistency between the first and second counts of the declaration. They were in substance for the same cause of action; and the first count is clearly sufficient to support the verdict. Judgment affirmed. [233] It is sufficient, under section 5242 of the Re- WILLIAM H. ROBERTSON, Collector, [233] There was no question of fact to be submitted to a jury. From the facts proved, the intent to prefer, on the part of the Pacific Bank, was a necessary conclusion; and it was correct in the district court to direct a verdict for the plaintiff. If any other verdict, on the facts proved, had been rendered, it would have been the duty of that court to set it aside. Nor was there any error on the part of the district court in refusing to submit to the jury the second and third questions which the defendant requested the judge to submit to them. The bill of exceptions does not set forth what the "other evidence" given in the case was, in v. tors of CHARLES L. PERKINS, Deceased. (See S. C. Reporter's ed. 233-238.) Practice in United States Court-allegations of 1. Under section 914 of the Revised Statutes of the 2. In an action in such circuit court, which was the plaintiff duly made and filed protest, and duly to law. 4. Where, at the close of plaintiff's evidence, defendant moved the court to direct a verdict for the shown facts sufficient to entitle him to recover, and defendant, on the ground that the plaintiff had not the motion was denied and defendant excepted. held that, as the defendant did not then rest his case but proceeded to introduce evidence, the exception failed. 5 Bessemer steel rail crop-ends, cut off from ster] rail, come within the definition of steel, under the Argued Jan. 15, 16, 1889. Decided Jan. 28,1889. IN ERROR to the Circuit Court of the United The facts are stated in the opinion. Mr. J. Langdon Ward for defendant in error. Mr. Justice Blatchford delivered the opinion of the court: the United States, the practice, pleadings, and This is an action originally brought in the The allegation of the complaint in this case Superior Court of the City of New York, and is, that the plaintiff "duly made and filed due removed by certiorari, by the defendant, into and timely protest in writing," and "duly apthe Circuit Court of the United States for the pealed to the Secretary of the Treasury," and [234] Southern District of New York. It was brought "that ninety days have not elapsed since the by Charles L. Perkins against William H. Rob- decision of the Secretary of the Treasury on the ertson, Collector of the Port of New York, to aforesaid appeal.' As none of these allegations recover $1,460 as duties illegally exacted on an were denied in the manner required by section importation of Bessemer steel rail crop-ends, 500 of the Code, they were, by section 522, to from England, in August, 1884. The defend- be taken as true; and no issue was joined upon ant exacted duties on the articles at the rate of any one of them. This is the ruling in regard 45 per centum ad valorem, amounting to $2,628. to these provisions by the Court of Appeals of The plaintiff claimed that the lawful rate of the State of New York. In Lorillard v. Clyde, duty was only 20 per centum ad valorem, or 86 N. Y. 384, the complaint alleged that, in $1,168. The complaint contained the allega- pursuance of a certain agreement, a corporation that the plaintiff duly made and filed tion "was duly organized under the laws of due and timely protest in writing against the this State," It was contended, on a demurrer said erroneous and illegal assessment and exac- to the complaint, that the agreement was illegal, tion of the said duty; that the plaintiff was because it provided that the parties thereto, compelled to pay the $1,460 in order to obtain consisting of five persons only, should form a possession of the merchandise; that he duly ap- corporation, whereas the statute contemplated pealed to the Secretary of the Treasury from that at least seven persons should unite in order the decision of the defendant ascertaining and to form a corporation. But the court held that liquidating the duties; and that ninety days the allegation that a corporation was duly orhad not elapsed, at the commencement of the ganized under the laws of this State," pursuant suit, since the decision of the Secretary of the to the agreement, imported that the requisite Treasury on such appeal. The answer of number of persous united for that purpose; the defendant did not deny the allegations of that it must be assumed that the corporation the complaint as to protest and appeal and the was regularly organized; and that it was undecision of the Secretary of the Treasury. The necessary for the plaintiff to show in his comjury found a verdict for the plaintiff. The par-plaint the precise steps taken to accomplish that ties consented in open court that the amount result. The word "duly" means, in a proper of the verdict might be adjusted at the custom way, or regularly, or according to law. house, under the direction of the court. The also Tuttle v. People, 36 N. Y. 431, 436, and amount was adjusted as of the date of the ver- cases there cited; Fryatt v. Lindo, 3 Edw. Ch. dict; and for that amount, with interest and 239; People v. Walker, 23 Barb. 304; People v. costs, in all $1,742.23, judgment was rendered New York, 28 Barb. 240; Burns v. People, 59 for the plaintiff. To review that judgment the Barb. 531; Gibson v. People, 5 Hun, 542. defendant has brought a writ of error. At the close of the plaintiff's evidence, the counsel for the defendant moved the court to direct a verdict for the defendant, on the grounds, among others: (1) that the protest which was put in evidence by the plaintiff was served and filed before liquidation, and was, therefore, premature; (2) that no proof was offered or given that there was any appeal to the Secretary of the Treasury, or any decision on such appeal, and no proof of the date of such decision, to show that the suit was brought in time. The motion was denied, and the defendant excepted to the ruling. Under section 914 of the Revised Statutes of 66 See The plaintiff claimed, by his protest and at the trial, that the articles in question were liable to a duty of only 20 per centum ad valorem, under the provision of schedule C of section 2502 of the Revised Statutes, as amended by section 6 of the Act of March 3, 1883, chap. 121 (22 Stat. at L. 501), which imposes a duty of 20 per centum ad valorem on "mineral substances in a crude state and metals un wrought, not specially enumerated or provided for in this Act.' collector had imposed a duty of 45 per centum ad valorem on the articles, under the following provision of the same schedule C (22 Stat. at L. 500): "Steel, not specially enumerated or provided for in this Act, forty-five per centum ad The [235] [236] [237] valorem: Provided, That all metal produced At the close of the plaintiff's evidence, the itself, made at the same time with the making We are of opinion that the court erred in its dis- It results from these views, that the judgment below must be reversed, and the case be remanded to the Circuit Court with a direction to grant a new trial. FRANK ELY, Appt., The plaintiff introduced evidence for the At the close of the testimony on both sides the defendant moved the court to direct a verdict for him, on the grounds that the plaintiff had not produced sufficient evidence to make a case; that there was no evidence that the imported articles were unwrought metal; and that they were steel, which was specially provided for in the statute. The motion was denied by the court, and the defendant excepted to the ruling. The court charged the jury that the only question was whether the article was wrought or unwrought metal; that the word "wrought" meant wrought into something suitable for use, and not merely wrought in some manner, by V. RAILROAD COMPANY ET AL. (See S. C. Reporter's ed. 291-294.) Arizona Statute-action to quiet title-com- equitable relief may be granted in the same action any person owning real property, whether in pos 3. An allegation in the complaint, in ordinary authorize the court to grant equitable relief. APPEAL from a judgment of the Supreme Statement by Mr. Justice Gray: [291) [292] Court of the Territory of Arizona and County | complaint made out no case for equitable relief, "1. That the defendants, and each of them, be required to set forth the nature of his claim, and that all adverse claims of the defendants, and of each of them, may be determined by decree of this court. 2. That by said decree it be declared and adjudged that the defendants have no estate or interest whatever in or to said land or premises, or in or to any part thereof, and that the title of the plaintiff is good and valid. "3. That the defendants, and each of them, be forever enjoined and debarred from asserting any claim whatever in or to said land or premises, or to any part thereof, adverse to the plaintiff, and for such other and further relief as to this honorable court shall seem meet and agreeable to equity, and for his costs of suit." The defendants demurred to the complaint, upon the ground it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and judgment given for the defendants, dismissing the action. The judgment was affirmed in the Supreme Court of the Territory. 19 Pacific Reporter, 6. The plaintiff appealed to this court. Mr. Rochester Ford, for appellant: The complaint states facts sufficient to constitute a cause of action. More v. Steinbach, 127 U. S. 70 (32: 51); People v. Center, 66 Cal. 551; Statham v. Dusy (Cal.) 11 Pac. Rep. 606; Pierce v. Felter, 53 Cal. 18: Hyde v. Redding, 74 Cal. 493; Fritz v. Grosnicklaus, 20 Neb. 413; Holland v. Challen, 110 U. S. 15 (28: 52); Frost v. Spitley, 121 U. S. 552 (30: 1010); Jeffersonville, M. & 1. R. Co. v. Oyler, 60 Ind. 383; Marot v. Germania Building & Sav. Asso. 54 Ind. 37; Trittipo v. Morgan, 99 Ind. 269; Johnson v. Taylor, 3 West. Rep. 711; Reynolds v. Crawfordsville First Nat. Bank, 112 U. S. 405 (28: 733). Messrs. B. H. Hereford and Thomas Mitchell for appellees. Mr. Justice Gray delivered the opinion of the court: The judgment of the Supreme Court of the Territory of Arizona in favor of the defendants, upon their demurrer to the complaint, proceeded upon the ground that the action must be treated as a suit in equity only, and that the The Statutes of Arizona provide that "There shall be in this Territory but one form of civil private rights and the redress or prevention of private wrongs," to be commenced by complaint, containing "a statement of the facts constituting the cause of action, in ordinary and concise language," and "a demand of the relief which the plaintiff claims." Compiled [293] Laws of 1877, chap. 48, §§ 1, 22, 39. Under precisely similar statutes of the Territory of Montana, it has been adjudged by this court that both legal and equitable relief may be granted in the same action, and may be administered through the intervention of a jury or by the court itself, according to the nature of the remedy sought. Hornbuckle v. Toombs, 85 U. S. 18 Wall. 648 [21: 966]; Hershfield v. Griffith, 85 U. S. 18 Wall. 657 [21: 968]; Davis v. Bils land, 85 U. S. 18 Wall. 659 [21: 969]; Basey v. Gallagher, 87 U. S. 20 Wall. 670 [22: 452]. By the Compiled Laws of Arizona, chap. 48, § 256, "An action may be brought by any person in possession by himself or his tenant of real property against any person who claims an estate or interest therein adverse to him, for the purpose of determining such adverse claim, estate or interest.' By the Act of the Territory of 1881, chap. 59, that statute is amended by striking out the requirement of the plaintiff's possession, so as to read as follows: "An action may be brought by any person against another who claims an estate or interest in said real property adverse to him, for the purpose of determining such adverse claim." The manifest intent of the statute, as thus amended, is, that any person owning real property, whether in possession or not, in which any other person claims an adverse title or interest, may bring an action against him to determine the adverse claim and to quiet the plaintiff's title. It extends to cases in which the plaintiff is out of possession and the defendant is in possession, and in which, at common law, the plaintiff might have maintained ejectment. An allegation, in ordinary and concise terms, of the ultimate fact, that the plaintiff is the owner in fee, is sufficient, without setting out matters of evidence, or what have been sometimes called probative facts, which go to establish that ultimate fact; and an allegation that the defendant claims an adverse estate or interest is sufficient, without further defining it, to put him to a disclaimer, or to allegation and proof of the estate or interest which he claims, the nature of which must be known to him, and may not be known to the plaintiff. These conclusions accord with the decisions of the Courts of California and Indiana under [294] [315] similar statutes, from one of which the present The result is, that the complaint in this case Judgment reversed, and case remanded to the Supreme Court of Arizona, with directions to overrule the demurrer to the complaint, and to take such further proceedings as may be consistent with this opinion. JOSIAH MORRIS, Appt., v. JAMES N. GILMER. (See S. C. Reporter's ed. 315-329.) Reported below, 35 Fed. Rep. 682. This suit is not one of which the circuit court should have retained jurisdiction; appellee at the time of the filing of the bill, was not in reality a citizen of Tennessee. This objection may be taken at any time, even though no plea be filed. Barney v. Baltimore, 73 U. S. 6 Wall. 280 (18: 825); Williams v. Nottawa, 104 U.S. 209 (26:719); Hawes v. Oakland, 104 U.S. 450 (26:827; Hayden V. Manning, 106 U. S. 586 (27: 306); Manhattan Life Ins. Co. v. Broughton, 109 U.S. 121 (27:878); Farmington v. Pillsbury, 114 U. S. 138 (29: 114); Robinson v. Anderson, 121 U. S. 522 (30: 1021); Detroit v. Dean, 106 U. S. 537 (27: 300). There can be no new domicil acquired, in any event, until there is an absolute abandonment of the old one. De Bonneval v. De Bonneval, 1 Curteis, Eccl. 856; Somerville v. Somerville, 5 Ves. Jr. 750; White v. Brown, 1 Wall. Jr. 262; Ennis v. Smith, 55 U. S. 14 How. 400 (14: 472). In order to consitute a domicil in another Jurisdiction of circuit court-duty to dismiss-State it is necessary that the party removing must 8. Such fact may be brought to the attention of 5. In order to effect such a change of domicil as have the intention, at the time of or after the removal, to remain permanently or for an indefinite period in the State to which he has removed. Gardner v. Sharp, 4 Wash. C.C. 609; Mitchell V. U. S. 88 U. S. 21 Wall. 350 (22: 584); Case v. Clarke, 5 Mason, 70; Cooper v. Galbraith, 3 Wash. C. C. 546. The rule is also well established that the native domicil, or domicil of origin, easily re verts. Guier v. O'Daniel, 1 Am. Lead. Cas. 745, 4th ed.; Craigie v. Lewin, 3 Curt. Eccl. 435; The Venus, 12 U. S. 8 Cranch, 253 (3:553); State v. Hallett, 8 Ala. 159; Merrill v. Morrissett, 76 Ala. 433. sive on the parties; and unless words of qualiIf the bill is dismissed generally, it is conclufication accompany the decree, it is to be presumed to be rendered on the merits. Freeman, Judgm. § 270; Durant v. Essex Co. 74 U. S. 7 Wall. 109 (19: 156); Case v. Beauregard, 101 U. S. 692 (25:1005); Alley v. Nott, 111 U. S. 472 (28: 491); Lyon v. Perin & G. Mfg. Co. 125 U. S. 698 (31: 839); Bigelow v. Winsor, 1 Gray, 299, Tankersly v. Pettis, 71 Ala. 179; Borrowscale v. Tuttle, 5 Allen, 377. In a court of equity there is always an issue on staleness, lapse of time and laches, whether they are pleaded or made matter of defense by way of demurrer; and it is incumbent upon the complainant, when he asks relief after the lapse of much time, to explain the delay. 8. Upon the evidence in this case, hell, that the plaintiff had no purpose to acquire a domicil or settled home in Tennessee, and that his sole object in removing to that State was to place himself in a situation to invoke the jurisdiction of the Circuit Court of the United States, with the intention to leave that State as soon as he could do so without defeating the jurisdiction of the federal court, and that he was, therefore, a mere sojourner in the State when the suit was brought. 7. If the removal be for the purpose of committing a fraud upon the law, and to enable the party to avail himself of the jurisdiction of the federal courts, and that fact be made out by his acts, the court must pronounce that his removal was not Speidel v. Henrici, 120 U. S. 387 (30: 719); with a bona fide intention of changing his domicil, Piatt v. Vattier, 34 U. S. 9 Pet. 405 (9:173); however frequent and public his declarations to the McKnight v. Taylor, 42 U.S. 1 How. 161 (11:86); contrary may have been. Bowman v. Wathen, 42 U. S. 1 How. 189 (11:97); [No. 1150.] Submitted Jan. 2, 1889. Wagner v. Baird, 48 U. S. 7 How. 234 (12: 681); Decided Jan. 28, 1889. Badger v. Badger, 69 U. S. 2 Wall. 87 (17:836); PPEAL from a decree of the Circuit Court Hume v. Beale, 84 U. S. 17 Wall. 336 (21: 602); of the United States for the Middle Dis-Marsh v. Whitmore, 88 U. S. 21 Wall. 178 (22: trict of Alabama, in favor of plaintiff in an ac- 482); Sullivan v. Portland & K. R. Co. 94 U. S. tion to require defendant to account for and 806 (24: 324); Godden v. Kimmell, 99 U. S. 201 pay over dividends and to transfer shares of|(25:431); Johnson v. Johnson, 5 Ala. 90; James stock to the plaintiff. Reversed, v. James, 55 Ala. 533; Nettles v. Nettles, 67 Ala AP |