of the record. The facts so found are to be the ultimate facts or propositions which the evidence shall establish, in the nature of a special verdict, and not the evidence on which these ultimate facts are founded." 3 Wall. vii. This rule was changed somewhat in form but not in substance, Oct. 12, 1873. 17 id. xvii. In the case of De Groot v. United States (5 id. 419), decided in 1866, we took occasion to say that the object of this rule was "to present in a simple form the questions of law which arose in the progress of the case, and which were decided adversely to the appellant. Only such statement of facts is intended to be brought to this court as may be necessary to enable it to decide upon the correctness of the propositions of law ruled by the Court of Claims, and that is to be presented in the shape of facts found by that court, to be established by the evidence, in such form as to raise the legal question decided by the court. It should not include the evidence in detail." This practice has always been strictly adhered to.

From this it is apparent that when the act of 1875 was passed, words in a statute limiting the power of this court in the review of cases where the facts had been found below "to a determination of the questions of law arising upon the record and to the rulings of the court excepted to," had acquired, through judicial interpretation, a well-understood legislative meaning, and that they confined our jurisdiction to the reexamination of questions of law alone. Having that meaning, therefore, it is to be presumed they were used in that sense in this instance, unless the contrary is in some way made to appear. So far from there being any manifestation of such a contrary intention, the reverse is very clearly indicated. Thus, the rulings of the court on which we are authorized to pass are such as may be presented by a bill of exceptions, prepared as in actions at law. It is an elementary principle in the common law that a bill of exceptions "is founded on a matter of law or a point of law arising out of a fact not denied." 1 Saund. Pl and Evid. 640. "The only modes known to the common law tc re-examine the facts are the granting of a new trial by the court where the issue is tried, or to which the record is properly returnable, or the award of a venire de novo by an appellate court

for some error of law which intervened in the proceedings." Pars v. Bedford, 3 Pet. 448. By the Constitution, Amend. VII., no fact tried by a jury can be otherwise re-examined in any court of the United States than according to the rules of the common law. It follows that had this case been tried by a jury it could not be re-examined on the facts in this court, because under the rules of the common law a bill of exceptions could not be used for that purpose. The decision of a court denying a new trial because the verdict of a jury is against the evidence is not reviewable upon error in the courts of the United States. Pomeroy's Lessee v. Bank of Indiana, 1 Wall. 592. Since, therefore, the bill of exceptions in this class of cases is to be taken as in actions at law, it follows most unmistakably that only such rulings are to be presented by it for our consideration as could properly be put into a bill of exceptions on the trial of an action at law.

This intention is still further manifested in that part of the act which provides for a trial by jury. The trial is to be had as at common law, and the finding of the jury on such a trial, unless set aside for lawful cause, is to stand as the finding of the court. No distinction is made in respect to our power of review between cases tried by a jury and those by the court; and if the trial is had by a jury, it is clear that the verdict was intended to be conclusive upon us.

Taking the whole statute together, we think it clearly manifests an intention on the part of Congress to relieve us from the great labor of weighing and considering the mass of conflicting evidence which usually filled the records in this class of cases. There is no real injustice in this. Parties to suits in admiralty have now the right to two trials on questions of fact, once in the District Court, and again on appeal in the Circuit Court. There seems no good reason why they should be entitled to a third trial here. At law there is but one trial, except by leave of the court in the exercise of its supervisory power over verdicts, and in equity only one before an appeal to this court.

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Upon the facts as found the decree of the Circuit Court was clearly right. The schooners "Rosanna Rose" and "Gov. Burton" were beating down the Delaware River under sail, and the

"Abbotsford" was following them under steam at half-speed by her engine, which, with the tide, gave her a speed of eight or nine miles an hour. When the steamer had approached near enough to the schooners to render it necessary to make caiculations to keep out of their way, the schooners were sailing on parallel courses, not far apart, on their starboard tacks, and nearing the Jersey side of the river. The "Rose" was to the eastward of the "Burton," and having run out her starboard tack by going as near as she could in safety to what is known as the Red Bank Shoal, she came about on her port tack. While on that tack, and before she had got under full headway, she was compelled to tack again to avoid a collision with the "Burton," still on the starboard tack and having the right of way. While engaged in this evolution, and being "in stays," she was run into by the steamer. The court finds that the tack of the "Rose" on the shoal was entirely proper, both for her own safety and in regard to the "Burton" and the steamer, as they were far enough away to allow her to do so with perfect safety. There was plenty of room for the steamer to pass to the westward of both the vessels, and if she had ported her wheel a point or half-point at any time within a distance of two miles, a collision would have been impossible. As it was, she undertook to pass between the schooners without any necessity for so doing, when it must have been apparent to any skilful navigator that the "Rose" was nearing the shoal, and would be compelled to come about and cross the bow of the steamer before she could get by on the course she was steering. In addition to this, there was the complication growing out of the proximity of the "Burton," entitled to keep on her starboard tack after the "Rose" must come about. Notwithstanding all these circumstances, the steamer held her course and speed until she had approached so close to the vessel that there was neither room. nor time to overcome her momentum when she became involved in the necessary and proper movements of the "Rose" to keep out of the way of the "Burton." A prudent navigator would have avoided this danger by a change of course or a slackening of speed long before. The collision occurred between nine and ten o'clock in the morning, and there is no pretence that both schooners were not in full view from the steamer for a suffi

cient time to enable her to make the necessary movement to keep out of their way. The collision was due alone to the fact that the steamer undertook to pass between the schooners when she should have gone outside of them.

Decree affirmed.

UNITED STATES v. BENECKE.

1. An indictment against A., found Sept. 11, 1875, charged that in March, 1868, he, as agent and attorney of B. and C., did withhold, and continued thereafter to withhold from them, certain money which he, as their agent and attorney, had received from the United States by the collection of their respective claims for "pay and bounty" and "arrears of pay and bounty." Held, 1. That the acts charged are not an offence under sect. 13 of the act of July 4, 1864 (13 Stat. 389). 2. That sect. 31 of the act of March 3, 1873 (17 id. 575, Rev. Stat., sect. 5485), was not intended to apply te case where the money had been withheld before its passage.

2. The word "claimant" in said sect. 13 means a person who, under the act of July 4, 1864, has a claim before the pension office.

CERTIFICATE of division in opinion between the judges of the Circuit Court of the United States for the Western District of Missouri.

The facts are stated in the opinion of the court.

Mr. Assistant Attorney-General Smith for the United States. Mr. Louis Benecke, in propria persona, contra.

MR. JUSTICE MILLER delivered the opinion of the court. The defendant, Louis Benecke, was indicted in the District Court for the Western District of Missouri, and the sixth and tenth counts of the indictment charged him with unlawfully withholding arrearages of pay and bounty from persons for whom, as agent and attorney, he had collected the same from the United States.

In the one case, the date was alleged to be the sixteenth day of March, 1868, and in the other the 17th of the same month and in both continuing thereafter.

On these counts the defendant was found guilty in the Circuit Court; and on motion for a new trial and arrest of

judgment the judges of that court certified six questions of law to this court on which they differed, as applicable to the

Is wrongfully withholding back pay or bounty by an agent or attorney from a claimant an offence under sect. 13 of the act of July 4, 1864 (13 Stat. 389), or under sect. 31 of the act of March 3, 1873 (17 id. 575), sect. 5485, Rev. Stat.?

The act of 1864 is entitled "An Act supplementary to an act entitled 'An Act granting pensions, approved July 14, 1862.'” It consists of fifteen sections, the twelfth of which is devoted to prescribing specifically the compensation of agents and attorneys for procuring the allowance of pensions and bounty, or other claims, under the act; and the thirteenth section, to prescribing a punishment for violation of the twelfth. It is as follows:

"SECT. 13. And be it further enacted, that any agent or attorney who shall, directly or indirectly, demand or receive any greater compensation for his services under this act than is prescribed in the preceding section of this act, or who shall contract or agree to prosecute any claim for a pension, bounty, or other allowance under this act, on the condition that he shall receive a per centum upon [, or] any portion of the amount of such claim, or who shall wrongfully withhold from a pensioner or other claimant the whole or any part of the pension or claim allowed and due to such pensioner or claimant, shall be deemed guilty of a high misdemeanor, and upon conviction thereof shall, for every such offence, be fined not exceeding $300, or imprisoned at hard labor not exceeding two years, or both, according to the circumstances and aggravations of the offence."

There is here no provision in regard to services for procuring pay, nor any provision in the act regarding it. The pensions to soldiers, their widows and orphans, is not pay, and the provisions for paying them are not under that act. Arrearages of pay were not collected under any pension law, or through the pension office. What is meant by bounty here is said in the briefs to be also passed upon and paid in another bureau. The indictment is perhaps on this point a little obscure. In the sixth count the defendant is charged as guilty of with