In Fletcher v. Peck, 6 Cranch, 87, it was decided that an Act of the Legislature by which a man's estate shall be seized for a crime which was not declared to be an offense by a previous law, was void.

inadmissible." The question involved in the Lapeyre case was whether a Proclamation issued by President Johnson, bearing date of June 24, 1865, 13 Stat. at L., 769, removing certain restrictions upon commercial intercourse, took effect on that day, or whether it took effect on the day it was published and promulgated, which was on the 27th of the same month. It was held by a majority of this court that it took ef fect from its date. The question was upon the 24th or the 27th of June, and the point of the portion of a day was not involved. While the general proposition may be true that where no The cases cited hold that the ex post facto efspecial circumstances exist, the entire day on fect of a law cannot be evaded by giving a civil which the Act was passed may be included, there form to that which is essentially criminal. Cumis nothing in Lapeyre's case to make it an au-mings v. Missouri [supra]; Potter's Dwarris, thority on the point before us.

In the Matter of Howes, 21 Vt., 619, it ap peared that the Bankrupt Act was repealed March 3, 1843. 5 Stat. at L., 614. Howes presented his petition on that day, and it was held that he was too late; that on questions of that nature there can be no divisions of a day.

In the Matter of Welman, 20 Vt., 653, the question was the same, and decided in the same way. While stating the general rule as above, the court say they agree with Lord Mansfield, in Combe v. Pitt, 3 Burr., 1423, that in particular cases the very hour may well be shown, when it need and can be done.

Arnold v. U. S., 9 Cranch, 104, is in affirmance of the same general principle. The Act of July 1, 1812, there discussed, provided That an additional duty of one hundred per cent. upon the permanent duties now imposed by law

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shall be levied and collected on all goods, wares and merchandises which shall, from and after the passage of this Act, be imported into the United States from any foreign port or place. The goods were brought into the Collection District of Providence, on the first day of July, 1812. 2 Stat. at L., 768. The court say: "The statute was to take effect from

In Cummings v. Missouri, it was held that the passage of an Act imposing a penalty on a priest for the performance of an act innocent by law at the time when it was committed, was void. 4 Wall., 277 [71 U. S., XVIII., 356]. To the same purport is Pierce v. Carskaden, 16 Wall., 234 [83 U. S., XXI., 276].

162, 163, n. 9.

Judgment affirmed.
Cited-104 U. S., 477.

FRANK O. KIHLBERG, Appt.

v.

UNITED STATES.

(See S. C., 7 Otto, 398–403.)

Government contract-construction of.

1. Where, in a contract for the transportation of government stores, it was agreed that distances termaster, in the absence of fraud or bad faith on should be ascertained and fixed by the chief quarhis part, his action in the premises is conclusive upon the contractor and upon the Government. 2. Where the contract provided that the quartermaster should give receipts for the quantity delivered, upon which payment should be made; held. that the language indicates an understanding between the parties that the payment of transportation was to be regulated by the weight actually delivered, not by the weight received for delivery. [No. 956.]

Submitted Dec. 10, 1878. Decided Dec. 23, 1878.

its passage, and it is a general rule that, whom APPEAL from the Court of Claims.

the computation is to be made from an act done, the day on which the act is done is to be included."

See the case of Matter of Richardson, 2 Story, 571, decided by the same Judge, sustaining the view just taken.

In the present case, the acts and admissions of the Government establish the position that the duties exacted by law had been fully paid, and the goods had been surrendered and transported before the President had approved the Act of Congress imposing an increased duty upon them.

To impose upon the owner of the goods a criminal punishment, or a penalty of $377, for not paying an additional tax of four cents a pound, would subject him to the operation of an ex post facto law.

An ex post facto law is one which imposes a punishment for an act which was not punishable at the time it was committed, or a punishment in addition to that then prescribed. Carpenter v. Pa., 17 How., 456.

Had the proceeding against Salmon & Hancock been taken by indictment instead of suit for the excess of the tax, and the one was equally authorized with the other, the proceeding would certainly have fallen within the description of an ex post facto law.

The case is stated by the court.
Mr. Harvey Spalding, for appellant.
Mr. S. F. Phillips, Solicitor-Gen., for ap-
pellee.

Mr. Justice Harlan delivered the opinion of the court:

This is an appeal from the judgment of the Court of Claims, in a suit upon a contract made January 31, 1870, between the United States and the appellant in reference to the transportation by the latter of military, Indian and government stores and supplies from points on the Kansas Pacific Railway to posts, depots and stations in portions of Kansas, Colorado, Texas, Indian Territory and New Mexico, and to such other depots as might thereafter be designated within the States and Territories named.

The following are portions of the contract the construction of which is involved in this suit.

"Art. 2. That the said Frank O. Kihlberg agrees and binds himself to transport, under this agreement, from and to the posts, depots or stations named in article 1, or from and to any other posts, depots or stations that may be estab lished within the district described in said article, any number of pounds of military, Indian and government stores and supplies, from and between one hundred thousand pounds and ten millions of pounds in the aggregate.

Art. 5. The military, Indian and government | loss, deficiency or damage exceeds the value of stores and supplies which shall be transported the bill of lading, it shall be deducted from any under this agreement shall be consigned to their after payment that may become due. respective destinations, and receipts on bills of lading shall be given by the officer of the Quartermaster's Department serving at the place of consignment, for the full quantity of stores that shall be delivered, and upon such receipts payments shall be made to the said Frank O. Kihlberg, as hereinafter provided.

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Transportation to be paid in all cases according to the distance from the place of departure to that of delivery, the distance to be ascertained and fixed by the Chief Quartermaster of the District of New Mexico, and in no case to exceed the distance by the usual and customary route. Where, however, stores are taken from trains before reaching their destination by competent military authority, the contractor will be allowed an increase of pay of five per cent. on contract rates to points of actual delivery; Provided, That, in no case, more than the regular rates for the whole distance are paid.

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Art. 7. * * *Upon the arrival of the train at the place of destination or delivery, the offi. cer of the Quartermaster's Department at the point of delivery shall indorse the bill of lading in accordance with the finding of a Board of Survey, as hereinafter provided, stating the quality and condition of the stores delivered, upon Art. 17. For and in consideration of the faithwhich indorsement payment shall be made as ful performance of the stipulations of this agreeper contract, deducting the amount of any payment, the said Frank O. Kihlberg shall be paid ment or payments previously made, and also for at the office of the depot quartermaster at Fort any articles missing, lost, destroyed or damaged, Leavenworth, Kansas, in the legal currency of and which the Board of Survey may find to be the United States, according to the distance supproperly chargeable to the contractor, at the plies are transported, and agreeably to the rates rate specified in article VIII. of this agreement. specified in the tabular statement hereunto anArt. 8. In all cases when stores have been nexed, signed by the parties to this agreement." transported by the said Frank O. Kihlberg under this agreement, a Board of Survey, to be applied for in writing by the contractor or his agent (one member of which Board shall be, if practicable, an officer on duty in the Subsistence Department), shall be called without delay, on their arrival at the point of destination or delivery, to examine the quantity and condition of the stores transported, and in cases of loss, deficiency or damage, to investigate the facts and report the apparent causes, assess the amount of loss, deficiency or damage, and state whether it was attributable to neglect or want of proper care on the part of the contractor or to causes beyond his control, and these proceedings, a copy of which shall be furnished to the contractor, shall be attached to the bill of lading, and shall govern the payments to be made on it.

For loss of weight, due to shrinkage, and for leakage of vinegar, molasses or other liquids, the contractor shall not be held liable if the packages are delivered in good order and condition, and the Board of Survey shall be satisfied that such shrinkage or leakage did not arise from neglect or want of care on the part of the contractor or his agent. For loss, deficiency or damage, attributable to the contractor, he shall pay double the cost at the point where he receives the articles, which cost shall be determined by taking the cost price at place of purchase and adding thereto the cost of transportation to the point where the stores were turned over to the contractor; and no freight whatever shall be paid on stores deficient. In case of damage, freight shall be deducted in proportion to the quantity damaged. Should no Board of Survey be called when requested by the contractor, through failure on the part of the Quartermaster's Department or other military authority to have one convened, it shall be considered that the contractor has delivered all the stores as specified in the bill of lading in good order and condition, and he shall be paid accordingly. But before such payment is made, the fact must be shown that the contractor or his agent did make application in writing to the quartermaster for a Board of Survey. If the amount of

General Easton, on the 16th of June, 1870, issued an order addressed to the depot quartermaster at Fort Leavenworth, Kansas, stating the distances by which he was to be governed in making settlements under the contract. The distances thus given were less than by air line, or by the usual and customary route.

There was a further contention in the case as to whether the contractor was entitled, under the contract, to compensation according to the weight of the supplies when received for transportation, or their weight when delivered.

The Court of Claims held that the contractor was bound by the distances named by the chief quartermaster, and was not entitled to compensation except upon the basis of the number of pounds actually delivered.

1. The contract, which is the foundation of this action, provides that transportation shall be paid "In all cases according to the distance from the place of departure to that of delivery.' But no specific rule is prescribed for the ascertainment of distances. The contract is silent as to whether they shall be estimated by an air line, or by the route usually traveled by contractors in conveying government stores, or by the road over which troops ordinarily marched when going from one post or station to another. The parties, however, concurred in designating a particular person, the Chief Quartermaster of the District of New Mexico, with power not simply to ascertain but to fix the distances which should govern in the settlement of the contractor's accounts for transportation. The written order of General Easton to the depot quartermaster at Fort Leavenworth was an exertion of that power. He discharged a duty imposed upon him by the mutual assent of the parties. The terms by which the power was conferred and the duty imposed are clear and precise, leaving no room for doubt as to the intention of the contracting parties. They seem to be susceptible of no other interpretation than that the action of the Chief Quartermaster, in the matter of distances, was intended to be conclusive. There is neither allegation nor proof of fraud or bad faith upon his part. The difference be

duty of the quartermaster at the point of deliv-igan. ery to "Indorse the bill of lading, in accordance with the finding of a board of survey, stating the quantity and condition of stores deliv ered; upon which indorsement payment shall be made as per contract," deducting the value of articles missing, lost, destroyed or damaged, by neglect of the contractor, if the Board of Survey has found that there was such neglect. The

Messrs. Hughes, O'Brien & Smiley, for defendants in error:

To determine the amount in dispute, the court will examine the whole record.

See, Schacker v. Ins. Co.,93 U.S.,241 (XXIII., 862); Stinson v. Dousman, 20 How., 461 (61 U. S., XV., 966); Lee v. Watson, 1 Wall., 337 (68 U. S., XVII., 557); Sampson v. Welsh, 24 How.. 207 (65 U. S., XVI., 632); Sewall v. Chamber lain, 5 How., 6.

If we add the disputed items on both sides together, we only have the sum of $1,760.65. Mr. J.W. Stone, for plaintiff in error: In the case at bar, the face of the pleadings shows that more than $5,000 is in dispute; and this we think is the true test in actions at law for damages.

In cases where the value is stated in the pleadings or proceedings of the court, affidavits will not be received to vary it; to give or take away jurisdiction.

Richmond v. Milwaukee, 21 How., 391 (62 U. S., XVI., 60).

Mr. Chief Justice Waite delivered the opinion of the court:

ment by the plaintiff, in his declaration or complaint, upon a demand for money only, or by the defendant in his counter claim or set-off, will be taken as indicating the amount in dispute, yet if the actual amount in dispute does otherwise appear in the record, reference may be had to that for the purpose of determining our jurisdiction. Ordinarily this will be found in the pleadings, but we need not necessarily confine ourselves to them. We hear the case upon the record which is sent up, and if, taking the whole record together, it appears that we have no jurisdiction, the case must be dismissed. Here it is affirmatively shown that the value of the "matter in dispute" is less than our jurisdictional amount, and the motion to dismiss is, therefore, granted.

U. S., 174; 110 U. S., 53, 388.

Cited-100 U. S., 6; 102 U. S., 121; 106 U. S., 582; 108

SARAH B. HUNT, P. in Err.,

v.

WILLIAM H. HUNT.

Constitutional prohibition-divorce laws-state

decision.

1. The provision of the Constitution, prohibiting States from passing laws impairing the obligation of contracts, does not embrace other contracts f value and confer rights which may be asserted than those which respect property, or some object in a court of justice.

This is a writ of error sued out by the defendant below, when the judgment against him upon a money demand was for only $1,118.71. Prima facie this is the measure of our jurisdiction in favor of the present plaintiff in error; but he still thinks we must retain the cause, as the record shows that, having pleaded the general issue, he gave notice of set off, claiming $10,000. It is true that such notice was given, but it is shown affirmatively by the record that the only dispute upon the trial under the notice was as to a single item, of the amount of $446. In short, the bill of exceptions shows distinctly that the only controversy between the parties was in respect to a claim by the plaintiff below of about $2,000, and by the defendant, plaintiff in error, as to this item of set-off. In his ap- Submitted Dec. 23, 1878. Decided Jan. 6, 1879. plication for the removal of the cause from the

2. It does not restrict the general right of a State Legislature to legislate on the subject of divorces. marriage contract, but to liberate one of the parSuch Acts enable the tribunal, not to impair a ties because it has been broken by the other.

3. A decision of a state court, that a party to a suit was not a citizen of a certain State, does not present a question of which this court has juris[No. 705.]

diction.

York.

On motion to dismiss.

state court to the circuit court, the plaintiff in IN ERROR to the Court of Appeals of New error made this statement, to wit: "The matter in dispute exceeds, exclusive of costs, the sum of $500, and is of the value of $2,000:" and the Judge, in his charge to the jury, alluded to the fact that the amount in controversy was not sufficient to entitle the parties to a review in this court.

In Lee v. Watson, 1 Wall., 337 [68 U. S., XVII., 557], it was held that In an action upon a money demand, where the general issue is pleaded, the matter in dispute is the debt claimed; and its amount, as stated in the body of the declaration, and not merely the damages alleged, or the prayer for judgment, at its conclusion, must be considered in determining whether this court can take jurisdiction." To the same effect is Schacker v. Ins. Co., 93 U. S., 241 [XXIII., 862], where we dismissed a case in which it appeared that the action was upon

Defendant in error obtained a divorce in Louisiana from the plaintiff in error, and subsequently married another wife. While temporarily in the State of New York, an action for divorce was brought against him in the Supreme Court of that State by the plaintiff in error, on the ground of adultery, claiming the divorce obtained by him to have been void. Judgment having been given against her, and affirmed upon appeal by the General Term of the Supreme Court, and by the Court of Appeals, the plaintiff sued out this writ of error. Messrs. T. J. Durant and C. W. Hornor, for defendant in error.

Mr. D. D. Lord, for plaintiff in error.

Mr. Chief Justice Waite delivered the opin

a policy of insurance for $1,400, because, al-ion of the court:

though damages to our jurisdictional amount In the Dartmouth Coll. Case, 4 Wheat., 629, were claimed, it was apparent from the whole record that there could not be a recovery for more than the amount of the policy, and a small sum in addition for interest.

it was expressly said by Chief Justice Marshall, in delivering the opinion of the court, that the provision of the Constitution prohibiting States from passing laws impairing the obligation of contracts " Had never been understood to embrace other contracts than those which respect property or some object of value, and confer

rights which may be asserted in a court of jus- | 1862, on a sale of the property under execution, tice. It never has been understood to restrict upon a judgment recovered against Magers in the general right of the Legislature to legislate one of the courts of Oregon. The case turned upon the subject of divorces. Those Acts en- upon the validity of this judgment. The deable some tribunal, not to impair a marriage mand in the complaint is for 214 acres of land; contract, but to liberate one of the parties be- but the answer disclaimed title to portions of the cause it has been broken by the other." This premises alleged to have been previously sold, disposes of the first ground upon which our and the recovery was had for the residue. jurisdiction is invoked in this case. The law complained of simply provides for divorces in certain cases, after hearing by a court of competent jurisdiction.

The suit in Louisiana was one affecting the personal status of the defendant in error, a ctitizen of that State. The contract of marriage from which he sought to be liberated had been entered into in that State when both parties were residents of the State. The question presented for decision below and decided, was not: what would be the rights of the plaintiff in error if she had been a citizen of the State of New York when the suit was commenced against her in Louisiana? But, whether she was a citizen of New York. The court decided she was not. Such a decision of the state court does not present a question of which we have jurisdiction.

The motion to dismiss is granted.

JESSE H. SETTLEMIER, Piff. in Err.,

v.

WILLIAM J. SULLIVAN.

(See S. C., 7 Otto, 444-450.)

Insufficient proof of service-presumption of jurisdiction-evidence.

1. Where the statute of a State required service of process to be made by delivering a copy to the defendant personally or, if he could not be found, to some white person of his family at his dwellinghouse, the inability of the officer to find the defendant must be stated in his return, or the service upon

his wife will not be sufficient.

2. A court of general jurisdiction, acting within the scope of its authority, is presumed to act rightly and to have jurisdiction to render the judgment it pronounces, until the contrary appears.

3. This presumption can only arise with respect to jurisdictional facts, concerning which the record is silent. It cannot be indulged when the evidence [No. 771.]

respecting the facts is stated.

Submitted Dec. 18, 1878. Decided Jan. 6, 1879.

It appeared from the record that the judg ment, the validity of which was considered, was rendered in September, 1861, in the Circuit Court of the County of Marion, in favor of one Samuel Walker against Magers for something less than $200, in an action upon two promissory notes of the defendant, one for $100 and one for $50, each drawing interest at the rate of two per cent. a month. The complaint contained copies of the notes, and prayed judgment for the amount with accruing interest. Indorsed upon it was a notice which, in the system of procedure then prevailing in the State, took the place of process, addressed to the defendant, stating that unless he appeared in the Circuit Court for the County of Marion on the third Monday of September then following, and answered the complaint, it would be taken as confessed and its prayer be granted.

The complaint and notice were not served upon the defendant personally, but on the 2d of September, 1861, were served upon his wife, by delivering copies to her "at the usual abode," she being, according to the certificate of the sheriff, a white woman over fourteen years of age." No statement is made by the officer that the defendant could not be found, nor is any reason given why personal service was not made upon him.

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On the second day of the ensuing Term, the 17th of September, judgment was rendered against the defendant for the amount due upon the notes as prayed. Its entry is preceded by a statement that on that day the plaintiff came by his attorneys, but that the "defendant, although duly served with process, came not, but made default." Upon this judgment execution was issued, and the property in controversy was sold.

In tracing his title through the sheriff's deed the defendant produced a copy of the entry of the judgment mentioned, without producing the complaint and notice and the sheriff's cer

tificate of service. The omission was afterwards supplied by the plaintiff against the objection that the recital of service upon the defendant in the judgment could not be contradicted or impeached by the return of the sheriff, and that the entire judgment roll, and not detached portions of it, should be produced in any attempt to contradict or impeach the recital. The plaintiff then produced a copy of the judgment similar to that already offered by the defendant. Those papers constituted under the statutes of the State, in force at the time, the judgment roll in the case, that is, the official record of the proceedings, showing the nature of the action, the manner in which jurisdiction over the person of the defendant was acquired, and the character of the judgment. Those statutes provided that, in cases of judgment by default, the judg ment roll should consist of copies of the complaint and notice, with the proof of service, and a copy of the judgment or decree. In cases of judgment after appearance, the notice and proof