199 U. S.

MCKENNA and WHITE, JJ., dissenting.

appeal from an acquittal of a grave crime and cast from himself the immunity that such an acquittal gives him. Should such consent be imputed? Let it be remembered that we are dealing with a great right, I may even say a constitutional right, for the opinion of the court discusses the case as though it were from a Circuit Court of the United States. Should such a right be narrowly or grudgingly considered? Should it be put in balance with other rights and lost by their exercise? I think that the guarantees of constitutions and laws should not be so construed. The life and liberty of the citizen are precious things-precious to the State as to the citizen, and concern for them is entirely consistent with a firm administration of criminal justice. I submit that the State seeks no convictions except in legal ways, and because it does not it affords means of review of erroneous rulings and judgments, and freely affords such means. It does not clog them with conditions or forfeit by their exercise great and constitutional rights. Yet in my judgment such is the effect of the decision just rendered.

The opinion says that as the accused takes up the whole record for review, "he thereby waives the benefit of the provisions in question (once in jeopardy) for the purpose of attempting to gain what he thinks is a greater benefit, viz., a review and reversal by the higher courts of the judgment of conviction." I repeat again, that constitutional guarantees and statutory remedies should not be put in such barter; that a defendant should not be required to give up the protection of a just (it must be so regarded for the sake of the argument) acquittal of one crime as the price of obtaining a review of an unjust conviction of another crime.

In the opinion in the Kepner case it was said: "It is not necessary to determine in this case whether the jeopardy provision in the Bill of Rights would have become a part of the law of the Islands without Congressional legislation." Resting the decision on that legislation, the court further observed: "How can it be successfully maintained that this expression of fundamental rights, which have been the subject of frequent

MCKENNA and WHITE, JJ., dissenting.

199 U.S.

adjudication in the courts of this country, and the maintenance of which has been ever deemed essential to our Government, could be used by Congress in any other sense than that which has been placed upon them in construing the instrument from which they were taken?

"It is a well-settled rule of construction that language used in a statute which has a settled and well-known meaning, sanctioned by judicial decision, is presumed to be used in that sense by the legislative body. The Abbottsford, 98 U. S. 440."

If this language expresses a proper and determining test of once in jeopardy against the appeal of the United States, it must also be the test of once in jeopardy against the appeal of the accused in the case at bar. By that test the judgment should be reversed. Here and there may be found a decision which supports the exposition of once in jeopardy expressed in the opinion. Opposed to it is the general consensus of opinion of American text books on criminal law and the overwhelming weight of American decided cases. Which may we suppose Congress adopted in its legislation, the interpretation of a few cases (able, it may be, and highly sanctioned by the reputation of the courts that delivered them), or the interpretation of the courts of a large number of the States of the Union? See cases in the margin.1

THE CHIEF JUSTICE also dissented.

1 Alabama-Bell v. State, 48 Alabama, 684; Berry v. State, 65 Alabama, 117; Sylvester v. State, 72 Alabama, 201.

California-People v. Gilmore, 4 California, 376; People v. Apgar, 35 California, 389; People v. Gordon, 99 California, 227.

Florida-Johnson v. State, 27 Florida, 245; Golding v. State, 31 Florida, 262. Illinois-Brennan v. People, 15 Illinois, 511; Barnett v. People, 54 Illinois, 325.

Iowa State v. Tweedy, 11 Iowa, 350; State v. Helm, 92 Iowa, 540.

Louisiana-State v. Dennison, 31 La. Ann. 847; State v. Victor, 36 La. Ann.

978.

Michigan-People v. Knapp, 26 Michigan, 112, 114; People v. Comstock, 55 Michigan, 405, 407.

Minnesota State v. Lessing, 16 Minnesota, 75.

199 U.S.

Syllabus.

CLARK v. ROLLER.

ROLLER v. CLARK.

APPEALS FROM THE COURT OF APPEALS OF THE DISTRICT OF

COLUMBIA.

Nos. 72, 451. Argued November 9, 10, 1905.-Decided December 4, 1905.

Semble a bill for partition cannot be made the means of trying a disputed title.

If upon a bill of partition a defendant claims a paramount title and possession on grounds which give color to his claim and against which the plaintiffs at least are not entitled to equitable relief, the proper course is to suspend the bill and give the plaintiffs an opportunity to sue at law.

Mississippi-Morris v. State, 8 S. & M. 762; Hurt v. State, 25 Mississippi, 378. Missouri-Prior to alteration effected by constitutional amendment of 1875

(as to which see State v. Simms, 71 Missouri, 538), in State v. Ross, 29 Missouri, 32; State v. Kattlemann, 35 Missouri, 105; State v. Brannon, 55 Missouri, 63.

New York-Prior to alteration effected by the Code of Procedure (as to which see People v. Palmer, 109 N. Y. 413), in Guenther v. People, 24 N. Y. 100; People v. Dowling, 84 N. Y. 478; and see People v. Cignarale, 110 N. Y. 23, 30.

Oregon State v. Steeves, 29 Oregon, 85.

Tennessee Campbell v. State, 9 Yerg. 333; Slaughter v. State, 6 Humph. 410, 415.

Texas-Jones v. State, 13 Texas, 168.

Virginia Before alteration by statute (as to which see Briggs v. Commonwealth, 82 Virginia, 554), doctrine enforced in Stuart v. Commonwealth, 28 Gratt. 950. Reinstated by later statute, as to which see Forbes v. Commonwealth, 90 Virginia, 550, and Benton v. Commonwealth, 91 Virginia, 782.

Washington State v. Murphy, 13 Washington, 229.

Wisconsin-State v. Martin, 30 Wisconsin, 216; State v. Hill, 30 Wisconsin,

416; State v. Belden, 33 Wisconsin, 120. (But not in cases of misdemeanors-Rasmussen v. State, 63 Wisconsin, 1.)

Georgia, owing to constitutional provisions, and by statute in the States of Indiana, Kansas and Kentucky, when a new trial is granted on motion of an accused he may be tried again for the greater offense of which he was acquitted on the first trial (Morris v. State, 1 Blackf. 37; Veatch v. State, 60 Indiana, 291; State v. McCord, 8 Kansas, 232; Commonwealth v. Arnold, 83 Kentucky, 1).

If a bill for partition is dismissed for laches and want of jurisdiction as against a defendant claiming a paramount title, and afterwards the court proceeds to decree a partition and sale, the dismissal is not a bar to a subsequent petition of the defendant to come in and oppose the creation of a cloud upon his title.

A decree confirming and adopting a report of commissioners recommending a conveyance of part of the land to certain of the parties and a sale of the residue and distribution of the proceeds as thereafter ordered when the sale was confirmed by the court, is not a final decree.

THE facts are stated in the opinion.

Mr. Leo Simmons for appellant in No. 72 and appellee in No. 451.

Mr. John E. Roller pro. se, with whom Mr. J. O. B. Roller was on the brief, for intervenor and appellee in No. 72 and for appellant in No. 451.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is an appeal from a decree dismissing a bill brought by the Clarks for partition of certain land in the District of Columbia, and a cross appeal by Roller, to protect his rights in case the whole record should be held to be brought up by the appeal. A short history of the case is necessary to make the questions intelligible. The bill was filed on November 24, 1893. On January 23, 1894, Roller petitioned to be made a party on the ground that he claimed the title, and two days later his petition was granted. On February 13 he answered, setting up a tax title in himself and the exercise of all rights of ownership and possession for nearly half a century, and also a previous decree between the parties. By a supplemental bill the plaintiffs alleged defects in the tax title and prayed that it might be declared void. The previous decree referred to was rendered in an earlier suit, which was like the present, except that it made Roller a party. In that suit Roller demurred on the grounds of laches and that the bill ought not to be maintained until the

plaintiffs had established their title at law, and the bill was dismissed as against Roller in general terms. There was testimony that the judge stated that he dismissed the bill for laches and on the other grounds set up.

On May 5, 1896, the present bill was dismissed as to Roller, on the grounds that the court had no jurisdiction as against him, that the bill was made multifarious by joining him, and that the plaintiffs were barred from equitable relief against him by laches. The next day the court ordered partition and appointed commissioners. The same month Roller entered an appeal from these decrees, which, however, was dismissed on October 24, 1898, for failure to give security for costs. On May 29, 1896, the commissioners made return, and on June 30, 1896, their report was confirmed. A conveyance of a part of the property was ordered, and a sale of the rest. It was further ordered that, on a ratification of the sale by the court and payment, the purchase money should be brought into court to be disposed of under its direction. A sale was not advertised until June, 1901. On July 26, 1901, Roller made a new application to come in, on the ground that the proceedings should have stopped after the decision and decree as to him, that he was in possession, and that the sale had not taken place, and if it did would be a cloud upon his title. On September 9, 1901, answers were filed to this petition, denying Roller's title and possession, and setting up that the possession was in one of the defendants in partition, and that the matters alleged had been adjudicated by the decrees in the cause. On November 6, of the same year, Roller's new petition was denied by the Supreme Court. He appealed, and in 1902, the mandate being filed on February 20, 1903, the decree of the Supreme Court was reversed by the Court of Appeals of the District, and the cause was remanded for further proceedings not inconsistent with the opinion of the court. The opinion is reported 19 App. D. C. 539.

In that opinion it was stated that the proper course was to suspend proceedings under the bill in order to give the com