Frisbie v. United States, 157 U. S. 160, 39 L. ed. 657, 15 Sup. Ct. Rep. 586; Caha v. United States, 152 U. S. 211, 221, 38 L. ed. 415, 419, 14 Sup. Ct. Rep. 513; Bram v. United States, 168 U. S. 532, 566– 568, 42 L. ed. 568, 581, 582, 18 Sup. Ct. Rep. 183, 10 Am. Crim. Rep. 547; Ledbetter v. United States, 47 C. C. A. 191, 108 Fed. 52; United States v. Clark, 46 Fed. 638; United States v. Bornemann, 35 Fed. 824; United States v. Molloy, 31 Fed. 19; Crowley v. United States, 194 U. S. 461, 48 L. ed. 1075, 24 Sup. Ct. Rep. 731; Rodriguez v. United States, 198 U. S. 156, 49 L. ed. 994, 25 Sup. Ct. Rep. 617; United States ▼. McKee, 4 Dill. 10, Fed. Cas. No. 15,687; United States v. Cobban, 127 Fed. 716; United States v. Benson, 31 Fed. 896; United States v. Tuska, 14 Blatchf. 5, Fed. Cas. No. 16,550; United States v. Ewan, 40 Fed. 453; Miller v. Texas, 153 U. S. 535, 537, 38 L. ed. 812, 813, 14 Sup. Ct. Rep. 874; United States v. Terry, 39 Fed. 364; Texas & P. R. Co. v. Kirk, 111 U. S. 486, 28 L. ed. 481, 4 Sup. Ct. Rep. 500; Long v. Farmers' State Bank, 9 L.R.A. (N.S.) 585, 77 C. C. A. 538, 147 Fed. 362; Alaska United Gold Min. Co. v. Keating, 53 C. C. A. 655, 116 Fed. 561; Townsend v. Jemison, 7 How. 706, 719, 12 L. ed. 880, 885; Linder v. Lewis, 1 Fed. 380.

It would be queer indeed for a court of equity to destroy an indictment merely be cause a precaution, intended solely to prevent the destruction, had been omitted. That would be for the court to use the form for the overwhelming of the substance, and thereby greatly to "enhance the abuses of criminal practice."

Holt v. United States, 218 U. S. 245, 54 L. ed. 1021, 31 Sup. Ct. Rep. 2, 20 Ann. Cas. 1138.

Renigar v. United States, 26 L.R.A. (N.S.) 683, 97 C. C. A. 172, 172 Fed. 646, 19 Ann. Cas. 1117, and Angle v. United States, 97 C. C. A. 184, 172 Fed. 658, decided by the court below, might with some plausibility be deemed to have involved a jurisdictional question because the indictments there were not presented to the court, but to the clerk. Even those cases seem to us unsound, because in fact and substance the indictments did reach the court, the clerk receiving them officially on its behalf and placing them in its files. A simile.r line of argument was advanced in Bryan v. Ker, 222 U. S. 107, 56 L. ed. 114, 32 Sup. Ct. Rep. 26, where it was urged that a writ under which a marshal had seized vessel was absolutely void, because it hal been issued not by the clerk of the court, but by an unofficial person (pp. 112, 113). The court looked through to the substanc of the transaction, which was that the writ had issued from the office of the clerk under the authority of the clerk, and bore the seal of the court, and therefore was not void, but at most voidable.

Also especially pertinent from this point of view are Kaizo v. Henry, 211 U. S. 146, 149, 53 L. ed. 125, 126, 29 Sup. Ct. Rep. 41, and Harlan v. McGourin, 218 U. S. 442, 451, 54 L. ed. 1101, 1106, 31 Sup. Ct. Rep. 44, 21 Ann. Cas. 849, where the court held that disqualification of grand jurors was not a defect going to the jurisdiction of the trial court; and United States v. McKee, 4 Dill. 9, Fed. Cas. No. 15,687, where Judge Dillon and Judge Treat denied a motion in arrest of judgment, based upon the contention that the circuit court was without jurisdiction because it had tried the defendant, not on the original indictment, but on a certified copy thereof which had been remitted from the district court.

The motion to quash was made too late. United States v. Breese, 172 Fed. 769; Agnew v. United States, 165 U. S. 36, 41, 45, 41 L. ed. 624, 627, 628, 17 Sup. Ct. Rep. 235; Hyde v. United States, 225 U. S. 341, 373, 56 L. ed. 1114, 1128, 32 Sup. Ct. Rep. 793; Lowdon v. United States, 79 C. C. A. 361, 149 Fed. 673; McInerney v. United States, 77 C. C. A. 411, 147 Fed. 183; United States v. Gale, 109 U. S. 65, 27 L. ed. 857, 3 Sup. Ct. Rep. 1; Kerr v. State, 36 Ohio St. 623, Jinks v. State, 5 Tex. App. 68; Caldwell v. State, 41 Tex. 86; Douglass v. State, 8 Tex. App. 529; State v. Mann, 83 Mo. 592; Patterson v. Com. 86 Ky. 313, 5 S. W. 387; Ex parte Winston, 52 Ala. 421; 1 Bishop, Crim. Proc. § 886; 12 Cyc.

v. Henry, 211 U. S. 146, 149, 53 L. ed. 125, 126, 29 Sup. Ct. Rep. 41; Harlan v. McGourin, 218 U. S 442, 451, 54 L. ed. 1101, 1106, 31 Sup. Ct. Rep. 44, 2 Ann. Cas. 849; United States v. McKee, 4 Dill. 1, 9, Fed. Cas. No. 15,687. The reasons for the requirement, if they ever were very strong, have disappeared, at least in part, and we have no doubt that Congress, like the state of North Carolina, could have done away with it, if it had seen fit to do so instead of remaining silent. See Danforth v. Georgia, 75 Ga. 614, 620, 621, 58 Am. Rep. 480; United States v. Butler, 1 Hughes, 457, 461, Fed. Cas. No. 14,700; Frisbie v. | United States, 157 U. S. 160, 163, 39 L. ed. 657, 658, 15 Sup. Ct. Rep. 586. But it would be going far to say that the record does not import an indictment duly presented and "publicly delivered into court" (4 Bl. Com. 306), or that on the findings the indictment was not duly presented in fact, even according to the supposed rule requiring the presence of all the grand | jurors. It appears by a certified plan that they could have seen the foreman's actions, if they desired, from at least a part of the room where they were. It fairly is implied that they knew what the foreman was about. We may compare the decisions as to the witnessing of wills. Riggs v. Riggs, 135 11]*Mass. 238, 46 Am. Rep. 464; Mendell v. Dunbar, 169 Mass. 74, 61 Am. St. Rep. 277, 47 N. E. 402.

At all events, objections of this sort are not to be favored when no prejudice to the defendants is shown; and on the contrary, the fact that the indictment was found and presented to the court is not disputed. As the defendants had no constitutional right | to the presence of the grand jury, they were bound to take the first opportunity in their power to object to its absence, and by their

the expiration of the term at which the indictment was found, and after the final discharge of the grand jury which found it, and after the overruling of an earlier verified motion to quash, made by the defendants on other grounds, in which said earlier motion to quash they had alleged that said indictment had been duly returned into open court by the grand jury, said second motion to quash having been made before the defendants had otherwise pleaded to the indictment?

4. Should such indictment be quashed on motion of the defendants, first made after the expiration of the term at which the indictment was found, and after the final discharge of the grand jury which found it, and after the defendants had pleaded not guilty to such indictment, but before a jury was sworn upon the issue joined upon Buch plea?

5. Would the defendants be entitled to

failure to do so, as heretofore set forth, they lost whatever rights they may have had. United States v. Gale, 109 U. S. 65, 27 L. ed. 857, 3 Sup. Ct. Rep. 1; Agnew v. United States, 165 U. S. 36, 44, 41 L. ed. 624, 627, 17 Sup. Ct. Rep. 235; Hyde v. United States, 225 U. S. 347, 373, 56 L. ed. 1114, 1128, 32 Sup. Ct. Rep. 793. The rule is implied in Crowley v. United States, 194 U. S. 461, 474, 48 L. ed. 1075, 1081, 24 Sup. Ct. Rep. 731, cited by the defendants. See also Rodriguez v. United States, 198 U. S. 156, 164, 49 L. ed. 994, 997, 25 Sup. Ct. Rep. 617. The order made by the court, saving rights, created no new ones, and the right to this plea was lost irrespective of the plea of not guilty, entered in pursuance of the order of the court. In the first ples it was admitted that the grand jury “returned the said bill of indictment into court as a true bill."

The same result follows from Rev. Stat. § 1025, U. S. Comp. Stat. 1901, p. 720, providing that no indictment presented by a grand jury shall be deemed insufficient nor the trial, judgment, or other proceeding thereon be affected by any defect in matter of form only, which shall not tend to the prejudice of the defendant. As we already have intimated, this indictment was presented in fact by the grand jury, and the defect, if any, was a defect in the matter of form only. The section should be construed to apply to the case (see Crowley v. United States, 194 U. S. 461, 474, 48 L. ed. 1075, 1081, 24 Sup. Ct. Rep. 731; Rodriguez v. United States, 198 U. S. 156, 165, 49 L. ed. 994, 997, 25 Sup. Ct. Rep. 617; United States v. Molloy, 31 Fed. 19, 23), and, even if it did not, it indicates a policy favoring the conclusion previously expressed that the objection had been waived. answer the first and sixth questions, "No."

We

have judgment arrested upon a verdict of guilty, returned upon such indictment?

6. Would defendants, who had pleaded not guilty to such an indictment under an order of court, by the terms of which such plea of not guilty should not operate or have the effect to prevent their taking advantage, upon motion in arrest of judg ment or on motion for a new trial, of all matters and things which could be taken advantage of by motion to quash or demurrer, be entitled to have such indictment quashed on motion made by them after the expiration of the term at which the indictment had been found, and after the final discharge of the grand jury which found it, and after the denial by the court of a previous motion to quash, made by the defendants on other grounds, in which first motion to quash they had alleged that said indictment had been duly returned into open court by the grand jury?

and Plff. in Err.,

V.

MUNICIPALITY OF VICTORIA.

(See S. C. Reporter's ed. 12-14.)

Appeal-mode of review.

1. Writ of error, and not appeal, is the only method by which a review may be had in the Federal Supreme Court of a judgment of the supreme court of the Philippine Islands in favor of a municipality in a suit brought against it to recover a tract of land which is declared by that court to constitute the public square or plaza of the town, devoted to public uses, since such suit is like an ordinary action at law. [For other cases, see Appeal and Error, II. b, in Digest Sup. Ct. 1908.]

Appeal - amount in dispute.

2. The value of the real estate in con

troversy in a suit brought by the archbishop of Manila to recover a square in the municipality of Victoria, in which stand a church and its parish house, is not shown to exceed $25,000, so as to sustain a writ of error from the Federal Supreme Court to the supreme court of the Philippine Is lands to review a judgment holding the land not occupied by the buildings to constitute the public square, the value of which in itself, it is admitted, does not exceed that sum, by affidavits which proceed upon the theory that the church edifices, valued at $30,000, are deprived of free egress and ingress by the decision.

[For other cases, see Appeal and Error, I. f, in Digest Sup. Ct. 1908.] Appeal-review of facts.

3. A writ of error from the Federal Su

land occupied by the buildings constituted the public square or plaza of the town, devoted to public uses. Dismissed.

See same case below, 13 Philippine, 152. The facts are stated in the opinion.

Mr. Frederic R. Coudert argued the cause and, with Mr. Henry W. Van Dyke, filed a brief for appellant and plaintiff in

error.

Mr. Felix Frankfurter argued the cause and filed a brief for appellee and defendant in error:

The value of the land involved in this

action does not exceed $25,000, and the case should therefore be dismissed.

Enriquez v. Enriquez, 222 U. S. 123, 56 L. ed. 122, 32 Sup. Ct. Rep. 62; Enriquez v. Enriquez, 222 U. S. 127, 56 L. ed. 124, 32 Sup. Ct. Rep. 64.

In any event the appeal must be dismissed. The case is reviewable only by writ of error, and the disposition of questions of fact by the court below is not open to consideration here.

Cariño v. Philippine Islands, 212 U. S. 449, 53 L. ed. 594, 29 Sup. Ct. Rep. 334; Tiglao v. Philippine Islands, 215 U. S. 410, 54 L. ed. 257, 30 Sup. Ct. Rep. 129; Jover y Costas v. Philippine Islands, 221 U. S. 623, 635, 55 L. ed. 884, 890, 31 Sup. Ct. Rep. 664; Santos v. Holy Roman Catholic & Apostolic Church, 212 U. S. 463, 53 L. ed. 599, 29 Sup. Ct. Rep. 338; Ker & Co. v. Couden, 223 U. S. 268, 56 L. ed. 432 32 Sup. Ct. Rep. 284.

Mr. Justice Holmes delivered the opinion of the court:

A

[No. 13.]

Argued October 30, 1912. ber 11, 1912. PPEAL from and in error to the Supreme Court of the Philippine Islands to review a judgment which, reversing the judgment of the Court of First Instance of Tarlac, in a suit brought by the arch bishop of Manila to recover a square in the municipality of Victoria, in which stand a

NOTE. As to appellate jurisdiction of Federal Supreme Court over supreme court of Philippine Islands-see note to Martinez v. International Bkg. Corp. 55 L. ed. U. S. 438.

The

There is a motion to dismiss the writ of error also, on the ground that the value of