circuit court of the United States without authority of law. The question of removal is governed by the decision of this court at the last term in Tennessee v. Bank of Commerce, 152 U. S. 454, 14 Sup. Ct. 654, by which, upon full consideration, it was adjudged that under the acts of March 3, 1887, c. 373 (24 Stat. 552), and August 13, 1888, c. 866 (25 Stat. 433), a case (not depending on the citizenship of the parties, nor otherwise specially provided for) cannot be removed from a state court into the circuit court of the United States, as one arising under the constitution, laws, or treaties of the United States, unless that appears by the plaintiff's statement of his own claim; and that, if it does not so appear, the want cannot be supplied by any statement in the petition for removal or in the subsequent pleadings.

In the present case the declaration is in the ordinary form of an action of ejectment between individuals, merely describing the land and alleging the ouster of the plaintiff by the defendant. It does not show that either party claims any right under the constitution or laws of the United States, or that the government of the United States or any third party claims or asserts any title or right to the land in controversy. So far as the declaration shows, the only question in the case might be merely whether the plaintiff has any title, or whether the defendant has taken possession. There was therefore no ground for ousting the jurisdiction of the courts of the state, and removing the case into the courts of the United States for trial.

The case must be remanded to the court in which it was originally brought. If such a defense as was set up in the circuit court of the United States should be hereafter set up in the courts of the state, and overruled by the highest court of the state to which the case can be taken, the judgment of that court may be reviewed by this court on writ of error.

Judgment reversed, with costs, and case remanded to the circuit court of the United States, with directions to remand it to the circuit court of the Fifth judicial circuit of the state of Maryland.

was convicted only on one count, which charged the making of the entry in February, 1892. 2. Where, in such case, a bookkeeper testified to making false entries by defendant's direction, defendant was not prejudiced by the refusal of the court to permit such witness to testify on cross-examination whether he did not put into a report prepared by him in September, in the absence of defendant from the state, the false entry made in December, and charged in a count on which defendant was acquitted.

3. Under rule 4 of the supreme court, which provides that "the party excepting shall be required to state distinctly the several matters of law in the charge to which he excepts; and those matters of law, and those only, shall be inserted in the bill of exceptions and allowed by the court,"-where the court, in a criminal case, recalls the jury, after it has been out several hours, and re-reads to them a portion of the charge, and gives some additional instructions, an exception to "the action of the court in recalling the jury and in arguing the testimony on certain points without stating the entire testimony" is insufficient to present the question as to whether the court sought to coerce a verdict.

4. It is not error to recall the jury after they have deliberated some time, for the purpose of ascertaining their difficulties, and making proper efforts to assist them in solving such difficulties; and the time of recalling them is in the sound discretion of the trial court.

5. Where the gravamen of the offense charged is intent to injure or defraud, an illustration which is apt and fair, contained in the charge, and put in the form of a question, without any affirmation as to the intent that must be presumed therefrom, is not open to the ob jection of "arguing the testimony," though it bears hard on defendant because the transaction with which he is charged was of like character to the one mentioned in the illustration, and indicative of the same intent.

6. In a criminal case in the federal courts, an expression of opinion on the facts by the court is permissible.

7. The court need not in its charge recapitulate all the items of evidence, nor even all the evidence bearing on a single question: especially where it tells the jury that there is other evidence than that mentioned, and that they should give it as full consideration as that mentioned.

In Error to the Circuit Court of the United States for the Eastern District of Arkansas. * On May 13, 1893, the grand jury of the United States for the Western division of the Eastern district of Arkansas presented an indictment against Horace G. Allis under section 5209 of the Revised Statutes. This section, so far as is material to this case, reads as follows:

"Every president tion

any book

of any associawho makes any false entry in of the association

with intent * to injure or defraud the association or any other company, body politic or corporate, or any individual person, or to deceive any oflicer of the association, or any agent appointed to examine the affairs of any such association ⚫ shall be deemed guilty," etc.

The indictment consisted of 25 counts. The defendant pleaded not guilty, and the case came on for trial on November 27, 1893. This trial resulted in a verdict of guilty on the fourteenth count, upon which verdict the defendant was sentenced to imprisonment

for the term of five years. The particular charge in that count was the making of an entry in February, 1892, on the books of the First National Bank of Little Rock, of which defendant was the president, of the sum of $50,000 to the credit of his individual ac count. To reverse the judgment and sentence against him, the defendant sued out a writ of error from this court.

John R. Dos Passos, A. H. Garland, and Thos. B. Martin, for plaintiff in error. Asst. Atty. Gen. Conrad, for the United States.

Mr. Justice BREWER delivered the opinion of the court.

The meager record gives us little information as to the merits of this case, and presents but few questions for our considera. tion. As the verdict was sustained by the trial judge, we must assume that the testimony, only a small portion of which is before us, was sufficient to establish the guilt of the defendant, and unless error is disclosed in the special matters presented to our consideration the judgment must be affirmed.

Upon the trial the court, over the objec tions of the defendant, permitted a witness, from an examination of the books of the bank, to testify to the condition of the defendant's private account from February to December, 1892. It is insisted that this tes timony was calculated to prejudice the jury against the defendant; that the items of the entire account were not in issue; that they were not within the scope of the indictment; and that, therefore, the defendant's atten. tion had not been called to them, and he could not be prepared to defend against them. There are two sufficient answers to these objections: (1) While the defendant was found guilty only on one, he was being tried on 25 counts, which counts charged false entries at different times running from February to December, and therefore testimony was competent as to the condition of his account stretching through the entire time. (2) The gravamen of this offense is the false entry with intent to injure, defraud, or deceive, and it was competent to show the state of the defendant's account, not merely at the very day the false entry was made, but also before and after that date, for the purpose of throwing light on the intent with which it was made.

Again, a bookkeeper, having testified to the making of false entries under the direction of the defendant, was asked on crossexamination whether a report prepared by him in September, in the absence of the defendant from the state, did not contain the identical false entry subsequently found in the December report, the making of which last entry was the offense charged in one of the counts of the indictment. The court refused to permit an answer to this question. As the jury did not find the defend

ant guilty on that count, and as the question related to matters occurring more than six months after the false entry of which he was found guilty, and to an entirely different transaction, it is obvious that the de-, fendant was not prejudiced by the ruling.

It is further insisted that the court erred' in permitting the translation of a cipher telegram from the defendant to be received in evidence and read to the jury. It is sufficient to say, in respect to this matter, that no exceptions were taken to the rulings of the court, and, indeed, no objections were made to the admission of the testimony after all the preliminary proofs had been received. The other errors complained of are in the charge to the jury. It appears from the bill of exceptions that, after the jury had been deliberating for several hours on the case, the court called them into the court room and inquired if they had reached a verdict. On being informed that they had not, the court asked if there was any portion of the charge the re-reading of which would be of any assistance to them. To which question the foreman responded that a portion thereof was not fully understood by all of the jury, to wit, that in reference to the weight of the testimony of the witnesses. Thereupon the court re-read that portion. It further stated that the jury were at liberty to conduct their deliberations as they chose, but that he would call their attention again to the part of the charge relating to the fourteenth, fifteenth, eighth, and ninth counts of the indictment, and proceeded to re-read that part. In the portion re-read, after a reference to the alleged false credit of $50,000, was this language: "And if he caused these entries to be made, with what intent did he do so? If a customer or friend of yours who owed you $40,000 on account should come to you and tell you that he had deposited $50,000 to your credit in the German National Bank of Little Rock, and that he wanted a receipt for the $40,000 that he owed you, and wanted a credit for the other $10,000, and you should give him the receipt and the credit, and should subsequently learn that he had never deposited one dollar in that bank for you, with what intent would you conclude he had made these statements? Would you think it was with an honest purpose, or with some intent to injure or defraud you?"

The bill of exceptions also contains other parts of the charge, as follows: "You are not bound to be governed by any statement of the evidence made by the court, but if your recollection accords with that of the court you may accept it, and if it differs from it you may be governed by your own memory. It is your exclusive province and duty to determine the issues of fact here presented, and the weight and credibility of the testimony of the witnesses, and by your de termination of these questions the court will be bound. If in the course of what the

court may say to you any expression of opinion should drop as to the disputed issues of fact or the credibility of the testimony of the witnesses, you are not bound by any such expression, but it is your privilege to adopt or disregard it as you may see fit.

"The court has reviewed the counts of this indictment, and called your attention to some of the important evidence, in the hope that this might be of some assistance to you in reaching a just verdict. There is much testimony bearing upon many of these counts that has not been called to your attention. You will consider that as carefully and as well as that which has been referred to, and will remember that, whatever may have been said by the court, you are the exclusive judges of the questions of fact and of the credibility of the witnesses." Closing its remarks to the jury at the time of their recall, it said: "Of course, gentlemen of the jury, you must consider all the other parts of the charge heretofore read to you also. I have simply called your attention to these four counts, thinking possibly I might assist you in arriving at a just conclusion.

"The court and jury are here to come to a just and righteous result. No doubt you are as anxious to reach it as am I.

"So anxious is the court that, having spent now two weeks in the trial of this cause, I am willing to stay here another, if by that means we may be able to reach a just and proper result in this trial. You may retire."

To the charge, of which the only portions preserved in the record are those just referred to, a single exception was taken in the following words: "The defendant excepts to the action of the court in recalling the jury, and in arguing the testimony, and in stating part of the testimony on certain points without stating the entire testimony." It is now insisted that the court expressed an opinion as to the inference to be drawn from the facts, argued the question of intent to the jury, and sought to coerce a verdict. But the exception taken is not sufficient to bring all these matters before us. There is no intimation in the exception that the defendant at the time thought that the court was trying to coerce the jury, or suggested that its language might have such an influence upon them. Evidently the claim of coercion is an afterthought from subsequent study of the record. But it is settled that no such afterthought justifies a reviewing court in reversing the judgment. A party must make every reasonable effort to secure from the trial court correct rulings, or such at least as are satisfactory to him, before he will be permitted to ask any review by the appellate tribunal; and to that end he must be distinct and specific in his objections and exceptions. Rule 4 of this court provides: "The party excepting shall be required to state distinctly the several matters of law in such charge to which he excepts; and those matters of law, and those only, shall be inserted in the bill of exceptions

and allowed by the court." Repeated decisions have emphasized the necessity of a strict adherence to this rule. "However it might pain us to see injustice perpetuated by a judgment which we are precluded from reviewing by the absence of proper exceptions to the action of the court below, justice itself, and fairness to the court which makes the rulings complained of, require that the attention of that court shall be specifically called to the precise point to which exception is taken, that it may have an opportunity to reconsider the matter and remove the ground of exception." Harvey v. Tyler, 2 Wall. 328, 339. "If it was intended to save an exception as to distinct propositions embodied in the instructions, the attention of the court should have been directed to the specific points concerning which it was supposed error had been committed." Moulor v. Insurance Co., 111 U. S. 337, 4 Sup. Ct. 466. "An exception 'to all and each part' of the charge gave no information whatever, as to what was in the mind of the excepting party, and therefore gave no opportunity to the trial court to correct any error committed by it." Block v. Darling, 140 U. S. 234, 238, 11 Sup. Ct. 832. See, also, Insurance Co. v. Raddin, 120 U. S. 183, 7 Sup. Ct. 500, and cases cited in the opinion; Mining Syndicate v. Fraser, 130 U. S. 611, 9 Sup. Ct. 665; Anthony v. Railroad Co., 132 U. S. 172, 10 Sup. Ct. 53. We see nothing in this case to withdraw it from the scope and control of this rule.

The specific matters excepted to are-First, the action of the court in recalling the jury; second, its arguing the testimony; and, third, its stating part of the testimony on certain points without stating the entire testimony. It is a familiar practice to recall a jury, after they have been in deliberation for any length of time, for the purpose of ascertaining what difficulties they have in the consideration of the case, and of making proper efforts to assist them in the solution of those difficulties. It would be startling to have such action held to be error, and error sufficient to reverse a judgment. The time at which such a recall shall be made, if at all, must be left to the sound discretion of the trial court, and there is nothing in the record to show that the court, in the case at the bar, abused this discretion, or failed to wait a reasonable time for the consideration of the case by the jury under the charge as already given.

So far as "arguing the testimony" is concerned, the only part of the charge that can be considered as even tending in that direction was that part referring to the question of intent. We see nothing in this of which any just complaint can be made. The illustration given by the court was apt and fair, and if it bore hardly upon the defendant it was only because the transaction of which he was charged was one of like character, and indicative of the same intent. The illustration was put in the form of a question, and no affirmation was made as to the intent

that must be presumed therefrom. Even if it contained an expression of opinion, such expression is permissible in the federal courts. Simmons v. U. S., 142 U. S. 148, 12 Sup. Ct. 171; Doyle v. Railway Co., 147 U. S. 413, 13 Sup. Ct. 333.

So far as respects the complaint that the court stated part of the testimony on a certain point without stating all, we know of no rule that compels a court to recapitulate all the items of the evidence, even all bearing upon a single question. There was no intimation that all the testimony bearing upon any particular point was stated. On the contrary, the plain declaration was that there was other testimony than that mentioned, and the jury were admonished to give that not mentioned as full and careful consideration as that mentioned.

So far as the record discloses, the charge of the court and it rulings on the trial were eminently fair and considerate of the rights of the defendant. In none of the matters referred to do we find any error, and therefore the judgment is affirmed.

1. Act March 3, 1891 (establishing the circuit court of appeals), § 4, provides that the review, by appeal, by writ of error, or otherwise, from existing circuit courts, shall be had only in such courts and in the supreme court of the United States as provided in such act. Section 5 provides that appeals or writs of error may be taken from circuit courts direct to the supreme court in any case in which the jurisdiction of the court is in issue; and that in such cases the question of jurisdiction alone shall be certified. Section 6 provides that the circuit courts of appeal shall exercise appellate jurisdiction in all cases except those provided for in the preceding section, unless otherwise provided by law; and their judgments shall be final in all cases arising under the revenue laws, excepting that in every such subject within its jurisdiction it may, at any time, certify to the supreme court questions of law concerning which it desires the instruction of that court; and thereupon the supreme court may give such instruction, or require the whole record and cause to be sent up for final disposition. Held, that where the jurisdiction of the circuit court is in issue, and decided in favor of defendant, plaintiff should have the question certified, and take his appeal or writ of error directly to the supreme court.

2. Where the jurisdiction of the circuit court is in issue, and the jurisdiction is sustained, but there is a judgment for defendant on the merits, plaintiff must appeal to the circuit court of appeals, which may certify the question of jurisdiction, if it arises in such court.

3. Where the jurisdiction of the circuit court is in issue, and the jurisdiction is sustained, and there is a judgment for plaintiff on the merits, defendant may elect either to have

the question of jurisdiction certified directly to the supreme court, or to carry the whole case to the circuit court of appeals, which may certify such question.

4. Where, in such case, plaintiff also has grounds of complaint in respect to the judgment in his favor, he may carry the case to the circuit court of appeals on the merits by cross appeal or writ of error, if defendant has taken the case there, or independently, if defendant has taken the case to the supreme court on the question of jurisdiction only, in which instance the circuit court of appeals will suspend a decision on the merits until the question of jurisdiction is determined.

5. The same rules apply where plaintiff objects to the jurisdiction of the circuit court, and is, or both parties are, dissatisfied with the judgment on the merits.

6. The board of general appraisers sustained the action of a collector in exacting, under Rev. St. § 3023, a charge of 10 cents per cask for gauging molasses withdrawn by importers from warehouse, and exported for the benefit of the drawback, to the payment of which the importers objected, on the ground that such charge was abolished by Act June 10, 1890 (26 Stat. 131, 140, c. 407) § 22. Held, that the circuit court of the United States, on appeal from such decision, had jurisdiction to hear and determine the questions of law and fact involved therein. U. S. v. Klingenberg, 14 Sup. Ct. 790, 153 U. S. 93, followed.

On a Certificate from the United States Circuit Court of Appeals for the Second Cir. cuit.

* August 15, 1890, G. A. Jahn & Co. imported into New York some casks of molasses, which on the 28th of that month they withdrew from warehouse, and exported to Montreal for the benefit of the drawback. Upon such withdrawal and exportation, the collector of customs at New York exacted a charge of 10 cents per cask for gauging the molasses under the provisions of section 3023 of the Revised Statutes. The importers protested against the charge for gauging, claiming that it had been abolished by the twenty-second section of the act entitled "An act to simplify the laws in relation to the collection of the revenue," approved June 10, 1890 (26 Stat. 131, 140, c. 407).

The matter was duly taken before the board of general appraisers, which sustained the action of the collector, and the importers appealed to the circuit court of the United States for the Southern district of New York. The circuit court reversed the decision of the board of general appraisers, and held that the gauging charge exacted by the coltector had been abolished. Thereupon the United States appealed to the circuit court of appeals, and assigned for error that the circuit court erred in reversing the decision of the board of general appraisers, for the reason that the decision of the board was final and conclusive, and that the circuit court had no jurisdiction to make any decree or order in said proceeding. The jurisdiction of the circuit court was first challenged upon the appeal. The circuit court of appeals certified to this court the question: "Whether the United States circuit court had jurisdiction to hear and determine the questions of law and of fact involved

in said decision of the board of general appraisers."

Sol. Gen. Maxwell, for the United States. Edwin B. Smith, for defendants.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

This case was docketed here under the title, "In the* Matter of the Application of Gustave A. Jahn & Co. upon certain merchandise entered by the 'Alps,' August 15, 1890"; but the correct title is "United States v. Gustave A. Jahn et al.," for the reasons given by Mr. Justice Gray in U. S. v. Hopewell, 5 U. S. App. 137, 2 C. C. A. 510, and 51 Fec. 798.

Counsel for the importers denies that the circuit court of appeals had authority to certify the question of the jurisdiction of the circuit court to this court, because that question was not in issue in the circuit court, or raised in any way; and, if it had been in issue, it could only be certified by the circuit court to this court; that as it was not put in issue, and not certified, and an appeal was taken to the circuit court of ap peals, the action of the circuit court in proceeding to judgment was a final determination in favor of its own jurisdiction, which could not be revised by the circuit court of appeals, though under instruction from this court.

The act of March 3, 1891, establishing the circuit courts of appeals, provides, in its fourth section, that "the review, by appeal, by writ of error, or otherwise, from the existing circuit courts shall be had only in the supreme court of the United States or in the circuit courts of appeals hereby established according to the provisions of this act regulating the same"; in section 5, that "appeals or writs of error may be taken from the existing circuit courts direct to the supreme court in any case in which

the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be certified to the supreme court from the court below for decision"; in section 6, that the circuit courts of appeals "shall exercise appellate jurisdiction to review by appeal or by writ of error final decision in the * existing circuit courts in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law, and the judgments or decrees of the circuit courts of appeals shall be final in all cases * * arising under the revenue laws, excepting that in every such subject within its appellate jurisdiction the circuit court of appeals at any time may certify to the supreme court of the United States any questions or propositions of law concerning which it desires the instruction of that court for its proper decision, and thereupon the supreme court may either give its instruction

*

on the questions and propositions certified to it which shall be binding upon the circuit courts of appeals in such case, or it may require that the whole record and cause may be sent up to it for its consideration, and thereupon shall decide the whole matter in controversy in the same manner as if it had been brought there for review by writ of error or appeal"; and excepting, also, that the supreme court, in the absence of request for instruction, might, by certiorari or otherwise, require any such case to be certified to it for review.

It thus appears that the revisory power of this court and of the circuit courts of appeals, under the act, is to be exercised only in accordance with its provisions, and that the circuit courts of appeals exercise appellate jurisdiction under the sixth section in all cases other than those in which the jurisdiction of this court is exercised under the fifth, among which cases are included all revenue cases, that is, cases under laws imposing duties on imports or tonnage, or providing in terms for revenue (U. S. v. Hill, 123 U. S. 681, 8 Sup. Ct. 308), which can only come here on the merits on certificate or certiorari; yet, if in such a case a final judgment were rendered because of want of jurisdiction, that judgment could be reviewed by this court upon a certificate of the circuit court; while, if jurisdiction were sustained and the merits adjudicated, although the question of jurisdiction might be brought up directly, the circuit court of appeals would undoubtedly have jurisdiction to review the case upon the merits.

The provision that any case in which the question of jurisdiction is in issue may be taken directly to this court necessarily extends to other cases than those in which the final judgment rests on the ground of want of jurisdiction, for in them that would be the sole question, and the certificate, though requisite to our jurisdiction under the statute, would not be in itself essential, however valuable in the interest of brevity of record. But in such other cases the requirement that the question of jurisdiction alone should be, certified for decision was intended to operate as a limitation*upon the jurisdiction of this court of the entire case and of all questions involved in it, a jurisdiction which can be exercised in any other class of cases taken directly to this court, under section 5. Horner v. U. S., 143 U. S. 570, 577, 12 Sup. Ct. 522. The act certainly did not contemplate two appeals or writs of error at the same time by the same party to two different courts, nor does it seem to us that it was intended to compel a waiver of the objection to the jurisdiction altogether or of the consideration of the merits. By taking a case directly to this court on the question of jurisdiction, the contention on the merits would be waived; but it does not follow that the jurisdictional question could not be considered if the case were taken to the circuit court of appeals. The act was passed to facilitate the prompt disposi