evidence satisfies you that he had no fraudulent or criminal motive in so doing, but that his act was merely the result of inadvertence or ignorance of his official duties, or ignorance of the manner in which those duties ought to be performed.

The mere writing of a person's name in the registration book by the registration officer is in itself no offense, if the person whose name is written appears before the registration officer and applies for registration, or takes the oath, and expressly or by necessary implication requests the officer to write his name. It is immaterial who writes the name. In other words, gentlemen, the offense laid in this indictment consists in the act of entering names of persons on the registration books who do not appear before the officer, or apply for registration or take any oath such as the law requires. If persons came before this defendant and gave false names and places of residence, and applied for registration under such assumed names or from false places of residence, and the defendant was imposed upon by such persons and in good faith administered the oath and placed their names on the registration books as qualified voters, and in that way some of the names mentioned in the indictment were placed upon the books, then the court directs you that you cannot convict the defendant by reason of any of his acts in respect to such names. If all the names in the indictment, as the defendant has testified, are names that were given to the defendant by persons who actually came before him and gave such names and their residences, and took the oath and applied for registration, and the defendant accepted them and placed their names on the books in good faith, that is, he being ignorant of any wrong-doing on the part of those persons making the application, (if there was any wrong-doing on their part,) then you must acquit him.

You can take the case.

The jury brought in a verdict of guilty.

A motion for a new trial was then filed, and the following opinion was delivered thereon:

BREWER, J., (orally.) While this case was not tried before me, yet I was present and heard the argument yesterday, which was before both of us, and the single question presented is one of law, so that I take part in the decision of that question, which is this: the record fails to show an arraignment and plea before the trial. It has been repeatedly decided by the supreme court of this state that a record which fails to show an arraignment and plea discloses such error as compels the granting of a new trial by that court. It is claimed that that line of decision expressing the settled law of this state is controlling in this court, and that we must therefore, following it, set aside this verdict. It is worthy of note, in the first place, that while that is the settled law of Missouri, it is

22

regarded by the supreme court of the state as a mere technicality in misdemeanor cases, and is followed simply because it has become a part of its body of law. In a recent case in 88 Mo. 105, (State v. Vanhook,) decided in 1885, the chief justice of the state, though adhering to the rule heretofore laid down, closes the opinion with this language: "After the jury is sworn and the trial proceeds, and all the testimony relates to the guilt or innocence of the accused in a misdemeanor case, it looks like trifling with justice to reverse the judgment, because the record fails to show an arraignment or plea of not guilty." Language which I think is a fair commentary in view of the statute of Missouri, (section 1821,) which declares: "But no new trial shall be granted "—for several reasons, the last of which is this-"nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits." Be that as it may, we have the federal statutes, and wherever there is a federal statute it controls irrespective of any state law or practice.

In the first place, it is well to consider what the purpose and necessity of an arraignment is. It is laid down in the old law books that three objects are to be subserved: (1) The identification of the defendant; (2) giving him information of the particular offense charged against him for which he is to be tried; and (3) to receive from him the plea which he makes to that charge. Now in the case, as tried, it is perfectly evident that the defendant knew exactly the offense charged against him; that he was identified; and that he denied the charge and went to trial upon that denial. Indeed, he went on the witness stand himself, It may seem something of an anomaly to say that and there denied it. proceedings may be such that in the trial court there is no evidence of prejudicial error when the record transferred to an appellate court may And yet, this matter of arraignment presents very disclose such error. Where a record taken to the supreme court shows much such a case. simply an indictment, a trial, and a conviction, there is nothing affirmatively appearing upon the face of the record from which that court can say that the defendant knew, prior to the impaneling of the jury, and prior to the trial, the exact nature of the charge against him. Non constat but that he went to trial supposing that the charge was one thing, and, after the testimony was introduced, discovered for the first time that And so, pursuing he was being tried for another and different offense.

that thought, that court might say that the record disclosed error, because it failed to show, as one of the guaranties of his protection, that he knew, prior to the time his case was presented to the jury, the exact offense charged against him. But the trial court may have had, as my Brother THAYER had in this trial, the most abundant evidence that the defendant knew exactly the offense which was charged against him, and was prepared to go to trial upon it; and if he did, all that the arraignment subserves was accomplished; and to say that he should be entitled to a new trial for that omission would seem to be, as Chief Justice HENRY well says, "like trifling with justice."

But, further than that, we have the federal statute, which provides

* * *

(section 1025) that "no indictment found and presented by a grand jury," etc., "nor shall the trial, judgment, or other proceedings thereon, be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant." I am aware that, putting a narrow construction on that section, it might be said that it refers only to a defect in the form of the indictment; and yet it is obvious to my mind, from the whole tenor of the federal statutes, that it has, or was intended to have, a broader significance, and to declare that no mere irregularity or defect in the form of the proceedings which did not tend to the prejudice of the defendant should be ground for a new trial.

It is a well-known fact that by the common law, differing in that respect from the rule which obtains under the state statutes, an application for a new trial in civil cases presents no matter of right, but is simply an appeal to the discretion of the court, and, when that is exercised one way or the other, the decision is not subject to review. And that is the effect of the statutes of congress as interpreted by the decision of the supreme court, they holding in two or three late cases (Railroad Co. v. Horst, 93 U. S. 291; Newcomb v. Wood, 97 U. S. 584; Coffey v. U. S., 117 U. S. 235, 6 Sup. Ct. Rep. 717,) that this matter of new trials in civil cases depending upon the discretion of the trial court is something which is settled by the law of congress, and cannot be affected by any state law. If it be true, as I think must be apparent to any one, that the failure to formally arraign the defendant in this case was not a matter which tended to his prejudice, that by that failure he was not deprived of a single substantial right, that he was not put to trial without full notice of that for which he was to be tried, that he was not caught by any surprise or in any other way, it would, as Chief Justice HENRY well says, seem to be "like trifling with justice" to disturb the solemn verdict of the jury, and send the case to a new jury to review the same facts on another trial.

So, by reason of the provisions of the federal statute determining the course of procedure in this court, although we recognize the fact that that is different from the rule which obtains in the state courts under the state statute, we agree that the motion for a new trial should be overruled, and it is so ordered.

THAYER, J. I concur in the ruling that the failure of the record to show a formal arraignment of the defendant is no ground, under the circumstances of this case, for granting a new trial. While the rule is firmly established in the state of Missouri that the court of last resort wili award a new trial in all criminal cases, whether of felonies or misdemeanors, if the record fails to show a formal arraignment, (State v. Vanhook, 88 Mo. 105; State v. Jaques, 68 Mo. 260, and State v. Saunders, 53 Mo. 234,) yet I regard our action in this case as controlled by a federal statute. Section 1025, Rev. St. U. S., provides that "no indictment found shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected, by reason of any defect or imperfection in matter of

form only, which shall not tend to the prejudice of the defendant." If this provision is to be given any effect as a curative statute, it fits the present case, and remedies the irregularity complained of. The defendant was present in court throughout the trial. The indictment was not only read in the defendant's presence, but he took the stand as a witness, and in that capacity denied substantially all of the material charges therein contained. The issue of not guilty was as clearly made before the jury as it could have been made by a formal arraignment and a formal entry on record of defendant's plea. In face of the statute above quoted, we cannot grant a new trial for an irregularity in the proceeding which could not possibly have tended to the defendant's prejudice. In this connection see U. S. v. McKee, 4 Dill. 1.

THE QUEEN OF ST. JOHNS.1

(Circuit Court, N. D. Florida. December 13, 1886.)

1. MARITIME LAW-WAIVER OF LIEN.

Taking a note and giving time will not necessarily release the maritime lien resulting from supplies furnished a vessel.

2. SAME-LIEN OF OWNER.

One who is a manager or part owner of a vessel should not be allowed a lien upon her to the prejudice of outside lien-holders.

3. SAME-SUPPLIES IN HOME PORT.

It is well settled that advances and supplies made to a vessel in her home port are presumed to be made on the credit of the owners, and no maritime lien results.

Appeal in Admiralty.

In this cause, submitted on the transcript and evidence, the court finds the following facts:

(1) The Queen of St. Johns was owned by the Favorite Navigation Company, a corporation created under the laws of Kentucky, at Covington, Kentucky, in November, 1884.

(2) That the original stock of the said company was divided into 500 shares, and was taken November 21, 1884, as follows: Certificates of Stock: (1) 100 shares, $100 each, to W. R. Kemper; (2) 100 shares, $100 each, to Sarah Morton; (3) 50 shares, $100 each, Henry Morton; (4) 50 shares, $100 each, Henry Morton; (5) 200 shares, $100 each, Frank M. Morton. Total, 500 shares, $50,000.

(3) That next day Henry Morton, the president of the corporation, reported that the bill of sale conveying the steamer to the corporation had been left for record at the custom house in Cincinnati, where she was enrolled. There was no subsequent enrollment.

(4) That the articles of incorporation provided that the capital stock of the company was "to be paid in in cash, on or before the twelfth day of December, 1884," (article 5;) and that the said corporation shall be managed by a president and two directors, who shall be chosen by ballot from the stockholders

1 Reported by Joseph P. Hornor, Esq., of the New Orleans bar.

after the first election, (article 7;) and the by-laws, (section 7) provided that either the president and one director, or two directors, shall constitute a quorum of the board of directors and be entitled to act.

(5) Article 2 of the articles of incorporation provided that the business of said corporation shall be building, chartering, buying, selling, conducting, and running of a steam-boat, or other vessels or water craft, and transportation of freight and passengers, and the buying, selling, and disposing of such vessels, and other real and personal property, within the United States, in whole or part as the corporation may deem proper. Section 4 of the by-laws further provided that the secretary shall keep in the minute-book a full account of all proceedings, which shall be subject to the inspection of any stockholder; and section 3, that called meetings may be held at any time and place designated by the president.

(6) Article 11 of the act of incorporation provided that the private property of the stockholders shall be exempt from liability of the debts of the corporation; and article 13 provided that any stockholder may at any time withdraw from the incorporation by selling his stock to another party for any amount, but he shall first pay his share of the debts of the corporation at that time, or sell the same liable therefor, and no such transfer of stock shall be made until the officers of the corporation have their option of taking said stock at the same price.

(7) That, as appears by the minutes of the company, Henry Morton was chosen president, and W. R. Kemper, secretary, upon the organization of the said corporation, about November 3, 1884, and both were elected November 6, 1884; and both continued holding said offices respectively from such election down to the time the steamer Queen of St. Johns was libeled in this cause; and on the same date, November 6, 1884, Frank M. Morton and W. R. Kemper were elected directors and have so continued; that the said president, Henry Morton, was and is the husband of Sarah Morton, who owned and continued to own and still owns one-fifth of the stock; and Henry Morton is the father of Director Frank M. Morton, who took originally two-fifths of the stock of said company; and the said Henry Morton took originally one-fifth of said stock.

(8) That, so far as the minutes of said company produced in this case show, it does not appear that said stock so subscribed was paid up, either in whole or in part, but it otherwise appears in the case that the steam-boat Queen of St. Johns was then nearly built at a cost of about $42,900, and was owned by Frank M. Morton, three-fifths, Sarah M. Morton, one-fifth, and W. R. Kemper, one-fifth; that she was sold to the Favorite Navigation Company at a price not appearing, and thereupon Frank M. Morton being desirous that his father, Henry Morton, should be president, W. R. Kemper secretary, and himself treasurer, Henry Morton subscribed for one-fifth of the stock, for which Frank Morton paid; the whole case showing no payment for stock subscribed by or for any subscriber, except such payment as was made by the transfer of the Queen of St. Johns at an unknown price to the Favorite Navigation Company.

(9) That certificates for 100 shares of stock of the Favorite Navigation Company were issued November 21, 1884, to Henry Morton, signed by himself as president, and receipted for by him; that these certificates were marked canceled December 16, 1884, and on the same day new certificates for 100 shares were issued to Frank M. Morton; that from November 1 to November 19, 1885, 300 shares of the said capital stock were through issue of new certificates transferred by Frank M. Morton to Henry Morton, the latter receipting therefor. These 300 shares were transferred without consideration and for the purpose of selling the whole or part, but no sale was effected, and a retransfer was made by Henry Morton to Frank M. Morton by delivery and marking on stub in stock-book "Canceled," though no new certificates were