upon their own inspection, and, from the nature of the case, must act without other proof; as where the postage is not prepaid, or where there is an excess of weight over the amount prescribed, or where the object is exposed, and shows unmistakably that it is prohibited, as in the case of an obscene picture or print. In such cases, no difficulty arises, and no principle is violated, in excluding the prohibited articles or refusing to forward them. The evidence respecting them is seen by every one, and is in its nature conclusive.

In excluding various articles from the mail, the object of Congress has not been to interfere with the freedom of the press, or with any other rights of the people; but to refuse its facilities for the distribution of matter deemed injurious to the public morals. Thus, by the act of March 3, 1873, Congress declared that no obscene, lewd, or lascivious book, pamphlet, picture, paper, print, or other publication of an indecent character, or any article or thing designed or intended for the prevention of conception or procuring of abortion, nor any article or thing intended or adapted for any indecent or immoral use or nature, nor any written or printed card, circular, book, pamphlet, advertisement, or notice of any kind, giving information, directly or indirectly, where, or how, or of whom, or by what means, either of the things before mentioned may be obtained or made, nor any letter upon the envelope of which, or postal-card upon which indecent or scurrilous epithets may be written or printed, shall be carried in the mail; and any person who shall knowingly deposit, or cause to be deposited, for mailing or delivery, any of the herein before mentioned articles or things, . . . shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall, for every offence, be fined not less than $100, nor more than $5,000, or imprisonment at hard labor not less than one year nor more than ten years, or both, in the discretion of the judge."

All that Congress meant by this act was, that the mail should not be used to transport such corrupting publications and articles, and that any one who attempted to use it for that purpose should be punished. The same inhibition has been extended to circulars concerning lotteries, — institutions which are supposed to have a demoralizing influence upon the people. There is no

question before us as to the evidence upon which the conviction of the petitioner was had; nor does it appear whether the envelope in which the prohibited circular was deposited in the mail was sealed or left open for examination. The only question for our determination relates to the constitutionality of the act; and of that we have no doubt.

The commitment of the petitioner to the county jail, until his fine was paid, was within the discretion of the court under the

statute.

As there is an exemplified copy of the record of the petitioner's indictment and conviction accompanying the petition, the merits of his case have been considered at his request upon this application; and, as we are of opinion that his imprisonment is legal, no object would be subserved by issuing the writs; they are therefore

Denied.

NATIONAL BANK v. OMAHA.

1. Even though an appeal is asked for in open court, if the security is not taken until after the term, a citation must be issued to bring in the parties, unless they voluntarily appear.

2. The ruling in O'Reilly v. Edrington (supra, p. 724), that a judge or justice cannot delegate to the clerk the power to approve the security upon writs of error and appeals, approved, and applied to this case.

APPEAL from the Circuit Court of the United States for the District of Nebraska.

Mr. J. M. Woolworth for the appellant.

No counsel appeared for the appellee.

MR. CHIEF JUSTICE WAITE delivered the opinion of the

court.

The decree in this case was rendered Nov. 13, 1874; and at the end appears the following entry: —

66

Whereupon said complainant, by its solicitor, prays an appeal to the Supreme Court of the United States, which is allowed; and bond to be given on said appeal is fixed at $500." A bond was filed Sept. 30, 1875, which appears to have been

approved by the clerk, and not by the judge. No citation has been issued or served, and there is no appearance in this court by the appellees.

We have decided at the present term, in Sage v. Railroad Company (supra, p. 712), that, even though an appeal is asked for in open court, if the security is not taken until after the term, "a citation should be issued to bring in the parties, unless they voluntarily appear, for, until the security has been accepted, the allowance of the appeal cannot be said to have been perfected;" and, in O'Reilly v. Edrington (supra, p. 724), that "the security upon writs of error and appeals must be taken by the judge or justice. He cannot delegate this power to the clerk."

Appeal dismissed.

INDEX.

ABATEMENT. See Pleading, 3, 4.

ACCOUNTING OFFICERS. See Limitations, Statute of, 2.
ACTING ASSISTANT-COMMISSARY. See Quartermaster.
ADDITIONAL COMPENSATION. See Quartermaster.

ADMIRALTY. See Appeal, 1; Practice, 6.

AGENT. See Contracts, 12; Fraud, 1; Insurance, 1-3, 5-7, 11.
Where an agent, without authority, borrows moneys in the name of his
principal, and the latter, when they have been applied to his use and
payment is demanded of him, fails, within a reasonable time there-
after, to disavow the act of his agent, the jury is authorized to consider
the principal as assenting to what was done in his name. Gold-Min-
ing Company v. National Bank, 640.

ALIEN ENEMIES.

See Confederate States, 9.

APPEAL. See Practice, 5; Supersedeas.

1. An appeal to the Circuit Court, from the decree of the District Court,
in a case in admiralty, carries up the whole fund.
Pike," 461.

The " 'Lady

2. An appeal lies here from the final decree of the Circuit Court con-
firming a sale made under its order. Sage v. Railroad Company, 712.
3. After the term at which such final decree was rendered, any justice
of this court may, within the time prescribed by law, allow an
appeal, and approve the bond which is to operate as a supersedeas. Id.
4. An appeal by an assignee in bankruptcy lies here from the final
decree of the Circuit Court, affirming that of the District Court, ren-
dered when sitting in equity, against him for the payment of money,
if the amount in controversy be sufficient. O'Reilly v. Edrington, 724.
5. Even though an appeal is asked for in open court, if the security is
not taken until after the term, a citation must be issued to bring in
the parties, unless they voluntarily appear. National Bank v. Omaha,
737.

APPEARANCE. See Appeal, 5.

A general appearance by the appellee waives all defects in a citation.
Sage v. Railroad Company, 712.

APPROPRIATE LEGISLATION. See Constitutional Law, 3.

ARMY REGULATIONS. See Quartermaster, 2.

ARREST OF JUDGMENT. See Practice, 3.

ASSESSMENT OF DAMAGES. See Utah, Code of Practice of.

ASSESSMENT OF TAXES. See Due Process of Law, 1-5; Illinois.
ASSIGNEE IN BANKRUPTCY. See Appeal, 4; Bankruptcy, 1; Pledge,

1-5.

ATTORNEY-AT-LAW. See Champerty; Frauds, Statute of, 1; Trustee.
AUTRE ACTION PENDANT. See Pleading, 3, 4.

BANKRUPTCY. See Injunction.

1. Assumpsit by an assignee in bankruptcy of an insurance company
against the holder of shares of its stock, to enforce the collection of the
balance due thereon, the same not having been paid pursuant to the
order of the court sitting in bankruptcy. Plea, non assumpsit. Held,
1. that the plea admits the existence of the corporation, and that the
State alone can raise the question whether the corporate stock had been
properly increased. 2. That the transferee of stock, who caused the
transfer to be made to himself on the books of the corporation, al-
though he holds it as collateral security for a debt of his transferrer,
is liable for such balance to such assignee. Pullman v. Upton, 328.
2. The mere non-resistance of a debtor to judicial proceedings in which
a judgment was rendered against him, when the debt was due and
there was no valid defence to it, is not the suffering and giving a
preference under the Bankrupt Act; and the judgment is not
avoided by the facts, that he does not file the petition in bankruptcy,
and that his insolvency was known to the creditor. National Bank
v. Warren, 539.

BELLIGERENT RIGHTS. See Confederate States, 2–5.

BILL OF PARTICULARS.

Matters of evidence are not required to be stated in a bill of particulars.
Garfield v. Paris, 557.

BOND. See District of Columbia, 2.

BOTTOMRY AND RESPONDENTIA.

1. So long as a vessel exists in specie in the hands of the owner, although
she may require repairs greater than her value, a case of “utter
loss," within the meaning of a bottomry and respondentia bond, does
not arise, and she continues subject to the hypothecation. Insurance
Company v. Gossler, 645.