[174] haps, of all the official documents of this class are the letter of the Attorney-General of the United States to the President under date of November 15, 1887, and that of the Secretary of the Treasury, to the Speaker of the House of Representatives, under date of May 1, 1888. The former describes the Public Land Strip as "bounded on the north by the States of Kansas and Colorado, on the east by the Indian Territory, on the south by Texas and on the west by New Mexico," and says that it was not then "embraced in any district established by law of the United States." The latter, speaking of the urgent need of legislation to enforce the Revenue Laws of the United States in the Public Land Strip, says that "the land referred to is not embraced in any judicial district, and not being within the jurisdiction of any United States court the laws of the United States are inoperative, or, at least, cannot be enforced therein." The public documents which reference has been made undoubtedly show that, in the opinion of many gentlemen in the legislative and executive branches of the government, the "Indian Territory" did not extend further west than the one hundredth meridian, and that even after the passage of the Act of 1883 it remained unattached to any judicial district. So that, if Congress intended by the Act of 1883 to annex the Public Land Strip to the Northern District of Texas, it was informed by these documents that that Act was not so construed by certain officers of the government. But it was further informed that the public interests absolutely demanded that that portion of the public domain should no longer remain in the condition in which it had been left for many years, namely, without being clearly included in some judicial district, whereby the rights of the general government, as well as of individuals, could be enforced against criminals and wrong-doers of every class. No possible reason can be suggested why, at the time of the passage of the Act of 1889, the Public Land Strip should not have been brought within some judicial district. Upon a careful scrutiny of the Act of 1889, giving full effect to all of its clauses, according to the reasonable meaning of the words used, yet interpreting it in the light of the previous history of the Public Land Strip, and of the information communicated to Congress by public officers, we do not doubt that Congress intended to bring that Strip within the jurisdiction of the court established for the Indian Territory, and to attach it, for limited judicial purposes, to the Eastern District of Texas, thus enabling the general government to protect its own interests, as well as the rights of individuals. That Act was so interpreted by Mr. Justice Brewer before his accession to this bench. Re Jackson, 40 Fed. Rep. 372. Observe, that the country over which the court established by that Act was to exercise jurisdiction was not described as being east of the 100th meridian and south of Kansas, nor simply as the Indian Territory, but, ex industria, as the Indian Territory bounded "north by the State of Kansas [the southern line of that State constituting about two thirds of the northern boundary of the Public Land Strip], east by the States of Missouri and Arkansas, south by the State of Texas and west by the State of Texas and the Territory of New Mexico." If the Act had bounded it on the north by Kansas and Colorado, the description, beyond all question, would have included the Public Land Strip. But the description, as it is, necessarily includes that Strip, because the "Indian Territory," for which the new court, to sit at Muscogee, was established, being bounded on the north by Kansas, and west, in part, by "the Territory of New Mexico"-the eastern boundary of which is on the 103d meridian-must include within its limits the Public Land Strip, lying between New Mexico and the 100th meridian. This fact is of greater significance than the careless omission to state, in the Act, that the Indian Territory, described in it, was bounded on the north by Colorado as well as by Kansas. The court at Muscogee was given exclusive original jurisdiction over all offenses against the United States, not punishable by death or by imprisonment at hard labor, committed, not simply within the Indian Territory, but within the Indian Territory, "as in this [that] Act defined," while the court at Paris was given exclusive original jurisdiction of all offenses against the laws of the United States within the limits of that portion of the Indian Territory attached to the Eastern District of Texas "by the provisions of this [that] Act," of which jurisdiction was not given to the court at Muscogee. If Congress did not intend to bring the Public Land Strip within the jurisdiction of the court established for the Indian Territory, and, for certain judicial purposes, within the jurisdiction of the courts held at Paris, in the Eastern District of Texas, why did it declare that the Indian Territory, for which it legislated in the Act of 1889, was bounded on the west "by the State of Texas and the Territory of New Mexico?" We cannot hold the words, “and the Territory of New Mexico," to be meaningless, simply because the northern boundary of that Strip was not described with precision and fullness; especially as every consideration of policy demanded that that part of the public domain should not longer be left without courts for the protection of the government and the people. [175] It is contended that this interpretation of the words "Indian Territory" in the Act of 1889 is wholly unauthorized by anything in the history of the Public Land Strip: for it is said that there are no facts whatever that make those words at all appropriate as embracing that Strip. This broad statement is scarcely justified by the facts. By the Treaty of July 27, 1853, made and concluded at Fort Atkinson, in the Indian Territory (10 Stat. 1013), between the United States and the Comanche, Kiowa and Apache Tribes [176 or Nations, "inhabiting the said territory south of the Arkansas River," it was provided that the annuities stipulated to be given by the United States should be delivered yearly in July to those tribes, collectively, at or in the vicinity of Beaver Creek, a large part of which is within the Public Land Strip. By | 1867. 2. By an Act of March 2, 1887, Conanother Treaty with those tribes in 1865 (14 gress granted a right of way through the Stat. 717-721), the United States agreed that Indian Territory" to a railroad company, a certain district of country, or such parts as beginning at a point on the northern line of the President should from time to time des- said Territory at or near the south line of ignate, should be, and was, set apart for Kansas, crossed by the 101st meridian; thence their "absolute and undisturbed use and oc- in a southwesterly direction to El Paso, New cupation," and that of "such other friendly Mexico. It could not commence at the point tribes" as had theretofore "resided within designated and reach El Paso by a southsaid limits, or as they may from time to time westerly line without passing through the agree to admit among them, and that no Public Land Strip. Unless that Strip was, white person, except fficers, agents and for the purposes of that Act, regarded as a employes of the government, shall go upon part of the Indian Territory, then the route or settle within the country embraced within to El Paso would not pass through the Insaid limits, unless formally admitted and dian Territory at all. 3. By the Treaty of incorporated into some one of the tribes law- May 6, 1828, with the Cherokee Indians, the fully residing there, according to its laws United States, besides setting apart for the and usages. The boundaries of said district use of that tribe 7,000,000 acres within the were: Commencing at the northeast corner limits of the Indian Territory, guaranteed of New Mexico; thence south to the south to that nation "a perpetual outlet west, and east corner of the same; thence northeast-free and unmolested use of all the country wardly to a point on main Red River, op- lying west of the western boundary" of the posite the mouth of the north fork of said limits given, "and as far west as the soverriver; thence down said river to the 98th de- eignty of the United States and their right gree of west longitude; thence due north of of soil extend." In an official communicathe said meridian to the Cimarone River; tion from the commissioner of the Land Office thence up said river to a point where the same to the Secretary of the Interior, under date crosses the southern boundary of the State of January 29, 1886, embodied in a report of Kansas; thence along said southern bound-made on the 11th of February, 1886, by the ary of Kansas to the southwest corner of said Judiciary Committee of the House of RepState; thence west to the place of beginning." These boundaries, it is true, included a part of the State of Texas, and the Treaty was, in that respect, ineffectual. Nevertheless, the cession included the Public Land Strip, then a part of the public domain of the United States. By a subsequent Treaty with two of the same tribes, concluded October 21, 1867 (15 Stat. 581-587), they were re-tory. I have not found in the records of this stricted in territory to the southwest corner of the Indian Territory, but they reserved the right "to hunt on any lands south of the Arkansas River, so long as the buffalo may range thereon in such numbers to justify the chase." These Treaties are referred to as showing that as late as 1867 the Public Land 77] Strip, in the mode of its use, had some connection with Indians west of the Mississippi, and especially with some of those now occupying permanent reservations in the Indian Territory. That Strip, we are informed, has not been occupied by Indians since 1867, but it was not opened to settlement, and could have been used for any of the purposes that the government had in view for Indians. There are other circumstances that are not without significance as indicating why Congress in the Act of 1889 used the words "In dian Territory," as describing not only lands east of the 100th meridian, south of Kansas, but lands north of Texas and between that meridian and New Mexico. Among them the following may be named: 1. To a report of the commissioner of the General Land Office, made in 1864, was annexed a map, 66 constructed from the public surveys and other official sources in the General Land Office," in which the Public Land Strip is included within the boundaries of the Indian Territory; and a similar map, constructed from the plats and official sources of the General Land Office," under the direction of Commissioner Wilson, was issued in 66 resentatives, upon a proposed bill extending office any expressed reason why this Strip " These circumstances are referred to not as conclusive, nor as, in themselves, persuasive, but only to show that the Public Land Strip was regarded, at different times, by public officers to be part of the Indian Territory, as commonly designated, or as having such connection with the lands east of the 100th meridian, where various tribes of Indians had been located by the United States, as made it natural that it should be placed, together with the lands between that meridian and the States of Missouri and Arkansas, not occupied by the civilized Indian tribes, under the jurisdiction of the court established by the Act of 1889, or of some other court of the United States. Congress, it must be presumed, was not unaware of the fact that the words "Indian Territory" had been used by some to exclude, and by others to include, the Public Land Strip, and, to avoid misapprehension as to whether that Strip was annexed to some judicial district, and, perhaps, for the purpose of meeting the recommendation of the Secretary of the Treasury in his letter of May 1, 1888, it speaks, in the Act of 1889. of the Indian .178] Territory, not generally, but as therein de- | committed prior to the passage of the Act of fined. That description, we have seen, nec-1889?" We do not doubt that Congress inessarily included the Public Land Strip, tended to confer upon that court jurisdiction because it was the only part of the public to try such cases. By the express words of domain in that part of the United States that the Act, the courts to be held at Paris, Texas, [179] was bounded on the north by Kansas, as well were given exclusive original jurisdiction as on the west by the Territory of New of "all offenses committed against the laws Mexico, and which immediately adjoined of the United States" within that part of the Indian Territory lying east of the 100th the Indian Territory attached to the Eastern meridian. Judicial District of Texas, of which jurisMuch was said at the bar about the unrea-diction was not given, by the same Act, to sonableness of the supposition that Congress intended to subject the people in the Public Land Strip to the jurisdiction of a court sitting at so great a distance as Paris, Texas, rather than to one at Graham, in the Northern District of Texas, or one at Wichita, in Kansas. Judging by the map, the distance from the Public Land Strip to Paris is not much greater than to Graham. Indeed, the facilities for reaching Paris may be quite as good as those for reaching Graham. While the court of the United States nearest to the Public Land Strip, other than the one at Muscogee, seems to be the District Court of Kansas, this fact cannot control, as against the natural meaning of the words of the Act. diction of the United States court of neither the court established for that Territory. The only exception made is in the proviso to the eighteenth section, declaring, among other things, that no prosecution commenced before the passage of the Act should be in any way affected by its provisions. This, in connection with the previous part of the same section, defining the jurisdiction of the court below, necessarily imports that where no prosecution had been commenced, it should have authority to try all offenses, punishable by death or imprisonment at hard labor, committed, no matter when, within the new territory over which its jurisdiction was extended." No other interpretation can be reasonably given to the Act. If the Public Land Strip was placed by the Act of 1883 in Nor do we think that the interpretation of the Northern District of Texas, or if the dethe Act of 1889 can or ought to be affected fendants, having been apprehended in Kanby that of 1890, providing a temporary sas, were amenable, prior to the Act of 1889, government for the Territory of Oklahoma to the District Court in that State, the jurisand enlarging the jurisdiction of the United States court in the Indian Territory. Oklahoma, by that Act, is made to include "all that portion of the United States now known as the Indian Territory, except and except the unoccupied part of the Cherokee outlet, together with that portion of the United States known as the Public Land Strip." The boundary of the country "now known as the Indian Territory" and included in said Territory of Oklahoma is given, and the Public Land Strip is, separately, bounded "east by the 100th meridian, south by Texas, west by New Mexico, and north by Colorado and Kansas." This may be regarded at most as simply a declaration by Congress that the country then "known as the Indian Territory" did not include the Public Land Strip, and, therefore, that each should be separately described by its boundaries. But that does It is contended that the Act, so construed, not prove that Congress did not intend, in is in violation of section two, article three, 1889, to include the Public Land Strip in of the Constitution, supplemented by the the "Indian Territory," as defined by the Act Sixth Amendment. The former provides that of that year. On the contrary, the Oklahoma "the trial of all crimes, except in cases of Act, when it bounds that Strip on the "west impeachment, shall be by jury; and such by New Mexico," tends to show that sub-trial shall be held in the State where the said stantially similar words used in describing [180] the Indian Territory mentioned in the Act of 1889 had reference to the Public Land Strip. Looking at this question in every light in which it may be considered, we repeat the expression of our opinion that the Public Land Strip, west of the 100th meridian, bounded on the south by Texas, on the west by New Mexico and on the north by Colorado and Kansas, was annexed by the Act of 1889 to the Eastern District of Texas for such judicial purposes as by that Act appertained to the court held at Paris in that district. Was it competent for the court below to try the defendants for the offense of murder crimes shall have been committed; but when [181] States v. Jackalow, 66 U. S. 1 Black, 484, 486 ascertained by law before the commission of | court, as it respects venue, trial in the county the offense, or that the accused can only be and by jury from the vicinage, as well as in tried in the district in which the offense was respect to the necessity of particular or fixed committed (the district having been estab-districts before the offense." So, in United lished when the offense was committed) the Amendment has reference only to offenses against the United States committed within a State. United States v. Dawson, 56 U. S. 15 How. 467, 487, 488 [14: 775, 783]; Jones v. United States, 137 U. S. 202, 211, 212 [34: 691, 695]. The second section of article three had provided, in respect to crimes committed in the States, that the trial by jury should be had within the State where the crime was committed. The Sixth Amendment added the further guaranty, in respect to the place of trial, that the district should have been previously ascertained by law, leaving the 82] trial of offenses not committed within any State to be controlled by the second section of article three. The requirement in the latter section is that the trial "shall be at such place or places as the Congress may by law have directed." "As crimes," said Mr. Justice Story, commenting upon this section, It is said that the construction we place "may be committed on the high seas and upon the second section of article three makes elsewhere out of the territorial jurisdiction it obnoxious to the ex post facto clause of the of a State, it was indispensable that in such Constitution. In support of this position cases Congress should be enabled to provide reference is made to Kring v. Missouri, 107 the place of trial.” 2 Story's Const. § 1781. U. S. 221 [27: 506], where it was declared It was consequently provided in the Act of that any statute passed after the commission April 30, 1790 (1 Stat. 114, chap. 9, sec. 8), of an offense which, "in relation to that ofthat "the trial of crimes committed on the fense or its consequences, alters the situation high seas, or in any place out of the juris- of a party to his disadvantage," is an ex post diction of any particular State, shall be in facto law. This principle has no application the district where the offender is apprehended, to the present case. The Act of 1889 does or into which he may first be brought." And not touch the offense nor change the punishsuch was the law when the crime with which ment therefor. It only includes the place of the defendants are charged was committed. the commission of the alleged offense within Rev. Stat. § 730, 5339. But for the passage a particular judicial district, and subjects of the Act of 1889, and if the Public Land the accused to trial in that district rather Strip was not attached by the Act of 1883 to than in the court of some other judicial disthe Northern District of Texas, the defend-trict established by the government against ants could have been indicted and tried in whose laws the offense was committed. the District of Kansas, where they were ap- docs not alter the situation of the defendants prehended. Jones v. United States, above in respect to their offense or its consequences. cited. So that the contention of the defend- "An ex post facto law," this court said in ants is, in effect, that in respect to crimes Gut v. Minnesota, 76 U. S. 9 Wall. 35, 38 committed outside of the States, in some [19: 573, 574[, "does not involve, in any of place within the exclusive jurisdiction of its definitions, a change of the place of trial the United States, Congress is forbidden by of an alleged offense after its commission." the second section of article three of the Another contention of the defendants is (184) Constitution from providing a place of trial that the indictment is fatally defective, in different from the one in which the accused that it fails to sufficiently show when Crossmight have been tried at the time the offense the person alleged to have been murderedwas committed. We do not so interpret that died, or that he died within a year and a section. The words, "the trial shall be at day from the infliction upon him of the alsuch place or places as the Congress may by leged mortal wounds, or from the effect of law have directed," impose no restriction as such wounds, or within the territory in the to the place of trial, except that the trial jurisdiction of the court in which they were cannot occur until Congress designates the tried. As the Attorney-General and the Soplace, and may occur at any place which licitor-General submit this question without shall have been designated by Congress pre- argument, and without any suggestion in vious to the trial. This was evidently the support of the indictment, and as the judg construction placed upon this section in ment must, for reasons to be presently stated, United States v. Dawson, above cited, where be reversed, leaving the government at liberty the court, speaking by Mr. Justice Nelson, to find a new indictment, if its officers shall said: "A crime, therefore, committed against be so advised, we will not extend this opinthe laws of the United States, out of the ion by an examination of the authorities cited limits of a State, is not local, but may be by the defendants to show the present indicttried at such place as Congress shall designate ment to be defective. by law. This furnishes an answer to the argument against the jurisdiction of the 31 This At the trial below, one of the defendants' counsel, who had been attorney-general of (185) (93) and refusal, when unnecessary-sufficient al legation. 1. The acceptance of a draft or order in favor of a certain payee constitutes a new contract between the acceptor and such payee, and the latter may sue upon it in the United States circuit court, without tracing title from the drawer. On acceptance, the acceptor becomes the primary debtor. 2. The circuit court has jurisdiction of a suit brought by the indorsee of a promissory note, who is a citizen of one State, against his immediate indorser, who is a citizen of a different State, whether a suit could be brought in that court by the indorsee against the maker or not. 8. The payee of a draft or order, if a nonresident of the State in which the acceptor resides, may bring suit in the circuit court against the acceptor, notwithstanding the drawer of the paper is a resident of the same State as the acceptor. Kansas, and who, in that capacity, made to dence, but only as to such parties by whom In a suit upon an order drawn upon the mayor and council of a city, for the payment of a certain sum in dollars, which was accepted by the city, the acceptance stating that it was to be payable in city warrants, it is not necessary to allege that payment was demanded and refused; if payment has been made or tendered by the city it is a matter of defense and the burden of proof is upon the defendant. though often requested, has not paid to plaintif the amount of said order and acceptance or any part thereof, and that there is due and unpaid upon the same the entire amount thereof, is a sufficient allegation of nonpayment and refusal to pay. [No. 1322.] Submitted Jan. 6, 1891. Decided Jan. 26, 1891. Ν upon certain orders accepted by the City of Superior. The City interposed a demurrer to the petition, which was overruled, and, not desiring to plead further, judgment was rendered for the plaintiffs. Affirmed. IN ERROR to the Circuit Court of the United States for the District of Nebraska, to The jury were thus informed that this re-review a judgment in favor of the plaintiffs port, although merely hearsay, was substantive evidence upon the issue as to whether the defendants were present at, and participated in, the killing. The representatives of the government, in this court, frankly conceded, as it was their duty to do, that this action of the court below was so erroneous as to entitle the defendants to a reversal. Numerous other errors are said to have been committed at the trial to the prejudice of the defendants, but as such alleged errors may not be committed at the next trial, it is not necessary now to consider them. For the error above mentioned the judgment is reversed, and the cause remanded with directions to grant a new trial. Statement by Mr. Justice Brown: This was a writ of error to reverse a judg. ment of the Circuit Court for the District of Nebraska in favor of the defendants in error, upon certain orders accepted by the City of Superior. The case was practically decided in overruling a demurrer to the petition, which set forth, in substance, the following facts: 1. That the plaintiffs, Ripley and Bronson, were citizens of the State of Missouri, and the defendant, the City of Superior, a municipal corporation of the State of Nebraska. 2. That under an ordinance, regularly adopted and confirmed by a popular vote, the City entered into a contract with S. K. Felton & Co. for the construction of a sysThat, in pursuance of such contract, Felton tem of water-works for the sum of $25,000. & Co. built and completed the water-works, which were accepted by the City on the 29th day of April, 1889; and that upon the con13, 1888, and $3,681, December 14, 1888. tract price there was paid $5,000, October, 3. That S. K. Felton & Co. became in |