citizen; for one of the peculiar benefits of the grand-jury system, as it exists in this country, is that it is composed, as a general rule, of private persons who do not hold office at the will of the government, or at the will of voters. In most, if not all of the states, civil officers are disqualified to sit on grand juries. In the secrecy of the investigations by grand juries, the weak and helpless-proscribed, perhaps, because of their race, or pursued by an unreasoning public clamor-have found, and will continue to find, security against official oppression, the cruelty of mobs, the machinations of falsehood, and the malevolence of private persons who would use the machinery of the law to bring ruin upon their personal enemies. "The grand juries perform," says STORY, "most important public functions, and are a great security to the citizens against vindictive prosecutions, either by the government or by political partisans, or by private enemies." Story, Const. § 1785.

To the evidence already adduced of the necessity and value of that system, I may add the testimony of Mr. Justice WILSON, formerly of this court, and one of the foremost of the great men who have served the cause of constitutional government. He said that "among all the plans and establishments which have been devised for securing the wise and uniform execution of the criminal laws, the institution of grand juries holds the most distinguished place. This institution is, at least in the present times, the peculiar boast of the common law. The era of its commencement, and the particulars attending its gradual progress and improvement, are concealed behind the thick veil of a very remote antiquity. But one thing concerning it is certain: In the annals of the world there is not found another institution so well adapted for avoiding all the inconveniences and abuses which would otherwise arise from malice, from rigor, from negligence, or from partiality in the prosecution of crimes." 3 Wilson's Works, 363, 364.

Mr. Justice FIELD, referring to the ancient origin of the grand jury system in England, said that it was, "at the time of the settlement of this country, an informing and accusing tribunal, without whose previous action no person charged with a felony could, except in certain special cases, be put upon his trial. And in the struggles which at times arose in England between the powers of the king and the rights of the subject, it often stood as a barrier against persecution in his name, until, at length, it came to be regarded as an institution by which the subject was rendered secure against oppression from unfounded prosecutions of the crown. In this country, from the popular character of our institutions, there has seldom been any contest between the government and the citizen, which required the existence of the grand jury as a protection against oppressive action of the government. Yet the institution was adopted in this country, and is continued from considerations similar to those which give to it its chief value in England, and is designed as a means, not only of bringing to trial persons accused of public offenses upon just grounds, but also as a means of protecting the citizen against unfounded accusation, whether it comes from government or be prompted by partisan passion or private enmity." 2 Sawy. 668, 669. He quoted with approval the observations of a distinguished judge to the effect that "into every quarter of the globe in which the Anglo-Saxon race have formed settlements they have carried with them this time-honored institution, ever regarded it with the deepest veneration, and connecting its perpetuity with that of civil liberty." "In their independent action," said the same jurist, "the persecuted found the most fearless protectors, and in the records of their doings are to be discovered the noblest stands against the oppressions of power, the virulence of malice, and the intemperance of prejudice."

We have already seen that for centuries before the adoption of our present constitution, due process of law, according to the maxims of Magna Charta and the common law,—the interpreters of constitutional grants of power,

which even the British parliament with all its authority could not rightfully disregard, (Cooley, Const. Lim. 175,) absolutely forbade that any person should be required to answer for his life except upon indictment or presentment of a grand jury. And we have seen that the people of the original states deemed it of vital importance to incorporate that principle into our own constitution, not only by requiring due process of law in all proceedings involving life, liberty, or property, but by specific and express provision giving immunity from prosecution, in capital cases, except by that mode of procedure.

To these considerations may be added others of very great significance. When the fourteenth amendment was adopted all the states of the Unionsome in terms, all substantially-declared, in their constitution, that no person shall be deprived of life, liberty, or property otherwise than "by the judgment of his peers or the law of the land,” or “without due process of. law." When that amendment was adopted the constitution of each state, with few exceptions, contained, and still contains, a bill of rights, enumerating the rights of life, liberty, and property, which cannot be impaired or destroyed by the legislative department. In some of them, as in those of Pennsylvania, Kentucky, Ohio, Alabama, Illinois, Arkansas, Florida, Mississippi, Missouri, and North Carolina, the rights so enumerated were declared to be embraced by "the general, great, and essential principles of liberty and free government;" in others, as in those of Connecticut, in 1818, and Kansas, in 1857, to be embraced by "the great and essential principles of free government." Now, it is a fact of momentous interest in this discussion, that, when the fourteenth amendment was submitted and adopted, the bill of rights and the constitutions of 27 states expressly forbade criminal prosecutions, by information, for capital cases;1 while in the remaining 10 states such prosecutions were impliedly forbidden by a general clause declaring that no person should be deprived of life otherwise than by "the judgment of his peers or the law of the land," or "without due process of law."2 It may be safely affirmed that, when that amendment was adopted, a criminal prosecution, by information, for a crime involving life, was not permitted in any one of the states composing the Union. So that the court, in this case, while conceding that the requirement of due process of law protects the fundamental principles of liberty and justice, adjudges, in effect, that an immunity or right, recognized at the common law to be essential to personal security, jealously guarded by our national constitution against violation by any tribunal or body exercising authority under the general government, and expressly or impliedly recognized, when the fourteenth amendment was adopted, in the bill of rights or constitution of every state in the Union, is yet not a fundamental principle in governments established, as those of the states of the Union are, to secure to the citizen liberty and justice, and therefore is not involved in due process of law as required by that amendment in; roceedings conducted under the sanction of a state. My sense of duty constrains me to dissent from this interpretation of the supreme law of the land.

1 Ala. 1867, art. 1, 2 10; Ark. 1868, art. 1, § 9; Cal. 1849, art. 1, 2 8; Conn. 1818, art. 1, 29; Del. 1831, art. 1, 2 8; Fla. 1868, art. 1, 9; Ill. 1848, art. 13, 10; Iowa, 1857, art. 1, 11; Ky. 1850, art. 13, 13; Me. 1820, art. 1, 27; Mass. 1780, pt. 1, art. 12, as contained in Jones v. Robbins, 8 Gray, 329; Minn. 1857, art. 1, 7; Miss. 1868, art. 1, 31; Mo. 1865, art. 1, 24; Neb. 1866-67, art. 1, 8; Nev. 1864, art. 1, 8; N. J. 1844, art. 1, 29; N. Y. 1846, art. 1, 6; N. C. 1868, art. 1, 2 12; Ohio, art. 1, 10; Penn. 1838, art. 9, 10; R. I. 1842, art. 1, 7; S. C. 1868, art. 1, 19; Tenn. 1834, art. 1, 2 14; Tex. 1868, art. 1, 8; W. Va. 1861-63, art. 2, 1; Wis. 1848, art. 1, ? 8.

2 Ga. 1868, art. 1, 3; Ind. art. 1, 12; Kan. 1859, bill of rights, 18; La. 1868, Telle. 1, art. 10; Md. 1867, declaration of rights, art. 23; Mich. 1850, art. 6, 32; N. H. 1792, Vt. 1793, c. 2, art. 10.

pt. 1, art. 15; Or. 1857, art. 1, 2 10;

(111 U. S. 66)

CANAL BANK and others v. HUDSON and another.
(March 24, 1884.)

1. DEED OF TRUST-FORECLOSURE BY CREDITORS-PARTIES.

The plaintiffs, as creditors, whose debts were secured by a deed of trust on land in Mississippi, having brought a suit in equity to enforce the trust and to sell the land, joined as defendants, by a supplemental bill, persons in possession, who claimed to own the land under a title founded on a sale made under a judgment recovered prior to the execution of the deed of trust, but which judgment had been held by this court, in the same suit, (Bank v. Partee, 99 U. S. 325,) before the filing of the supplemental bill, to be void, as against the plaintiffs. The defendants in possession set up a claim to be allowed for the amount they had paid in discharge of a lien or charge on the land created by a will devising the land to the original grantor in the deed of trust, and for taxes paid, and for improvements. These claims were allowed.

2. SAME-DEVISE ON CONDITIONS-LIFE ANNUITY-CHARGE ON LAND.

A devise of land was made by a will, upon specified conditions, "under the penalty, in case of non-compliance, of loss of the above property," the conditions being to pay certain money legacies, and a life annuity in money. Then other legacies in money were given. Then there was a provision "that all the legacies which I have given in money and not charged upon any particular fund" should not be payable for two years "after my decease," followed by a provision as to the payment by the devisee of interest on the first-named money legacies after she should come into possession of the land devised. No other money legacies were given payable by any person on conditions, and there were no other legacies in money which could answer the description of legacies in money charged on a particular fund. Held, that the life annuity was a charge on the land devised.

3. SAME-LIen-Judgment or DECREE-MISSISSIPPI STATUTE.

The statute of Mississippi, (Rev. Code 1857, c. 57, art. 15, p. 401,) which provides that no judgment or decree rendered in any court held within this state shall be a lien on the property of the defendant therein for a longer period than seven years from the rendition thereof," does not apply to a decree of a court of chancery in Mississippi establishing the arrears due on such life annuity as a specific lien on such land by virtue of such will, in a suit in chancery brought by the life an

nuitant.

4. SAME-MAKING TRUSTEE A PARTY.

The will being proved and recorded in the county where the land was situated. it was not necessary, in such suit in chancery by the life annuitant, to make as de fendant the trustee in a deed of trust made by the devisee under the will, provided, in a suit to enforce the deed of trust, brought by the beneficiaries under it, they were given the right to contest the validity of the lien claimed by the life annuitant and to redeem the land from such lien, when established.

5. SAME-ABATEMENT-DISTRIBUTIVE SHARES.

The defendants claiming title under the devisee, and she being entitled to a distributive share of the entire estate of the life annuitant, who died during the pendency of such suit in chancery, it is not proper to abate from the allowance to the defendants of the amount paid by them to discharge the decree in such suit, any sum on account of the distributive share of such devisee in the amount so paid.

6. SAME-NOTICE-SERVICE OF PROCESS.

The defendants having acquired their title under a deed of trust executed after the original bill in this suit was filed, and before the grantor in such deed was served with process in this suit, it was held that they, being in fact purchasers in good faith, were not chargeable with notice of the intention of the plaintiffs to bring this suit, within the provisions of the Revised Code of Mississippi of 1871, (chapter 17, art. 4, 1557,) in regard to allowances for improvements on land to purchasers in good faith, until they were served with process on the supplemental bill. 7. SAME "GOOD FAITH."

The meaning of the words "good faith" in the statute, and as applicable to this case, defined.

8. SAME

ALLOWANCE UPHELD.

The amount allowed by the circuit court, for improvements, upheld as proper, under the special circumstances.

Appeal from the Circuit Court of the United States for the Southern District of Mississippi.

W. L. Nugent, W. Hallett Phillips, and Wm. A. Maury, for appellants. W. P. Harris and Frank Johnson, for appellees.

BLATCHFORD, J. The litigation involved in this appeal is a continuation of that which was before this court in Bank v. Partee, 99 U. S. 325. The plaintiffs in the suit were appellants then and are appellants now. The original bill was filed April 1, 1873, in the circuit court of the United States for the Southern district of Mississippi, by the appellants, as creditors of Sarah D. Partee and William B. Partee, her husband, to secure to them the benefit of a deed of trust executed by the debtors to one Bowman, covering lands in Yazoo county, Mississippi, the object of the deed being to provide for the payment of debts, among which were those due to the appellants. The circuit court excluded the appellants from the benefit of the deed of trust, because of their failure to notify in writing within a time limited by the deed their acceptance of its terms; and that court also held that the title to certain of the land covered by the deed had failed in the trustee because of a paramount title thereto perfected under a judgment recovered against the debtors by one Stewart before the execution of the deed of trust. This court held that, notwithstanding the provision in regard to an acceptance in writing of the terms of the deed, the appellants were entitled to its full benefits, and that the judgment of Stewart was a nullity as respected Mrs. Partee, who was the debtor to Stewart and was the owner of the lands covered by the deed of trust. This court reversed the decree below and remanded the cause for further proceedings, in April, 1879.

Stewart and James D. Partee, a son of the debtors, had become the purchasers of the land sold under the Stewart judgment. In May, 1879, after the filing in the circuit court of the mandate from this court, the appellants filed a supplemental bill. One acre of the land bought by Stewart and a part of the land bought by James D. Partee are involved in that bill and in the present appeal. The original deed of trust was made November 19, 1866. The deed of the sheriff to James D. Partee, on the sale under the Stewart judgment, was made January 4, 1869, the judgment having been recovered June 6, 1866. The land so conveyed to James D. Partee was in quantity equal to five and one-eighth sections, and was all in township 9, of range 4 W., in Yazoo county, embracing land in seven different sections. The land constituted what is known in this controversy as two plantations, called "No Mistake," and "Tyrone." In February, 1870, James D. Partee and his wife conveyed these plantations to one Barksdale, in trust to secure an indebtedness of $41,500 to the firm of Nelson, Lamphier & Co. Under this deed of trust the plantations were sold and conveyed by the trustee to one Nelson, a member of that firm, in June, 1872. On April 15, 1873, Nelson conveyed the plantations to one Short, in trust to secure an indebtedness of $35,000, embracing 18 promissory notes, to said firm. Two of these notes came to be owned by Joseph P. Benson, and two by Charles C. Ewing, as administrator of S. S. Ewing, and they, with holders of others of the notes, brought a suit in equity, in August, 1876, in the chancery court of Yazoo county, to foreclose said trust deed. A decree of sale was made in January, 1877, and the said Benson and Ewing and one Robert G. Hudson purchased the lands at the sale, in February, 1877. On July 3, 1877, Benson conveyed to Ewing and Hudson all his interest in the plantations. They are the appellees in this appeal.

The plantations were originally the property of one James Dick, who was the uncle of Mrs. Sarah D. Partee. They were known together by the name of "No Mistake." By that name they were devised by Dick, by will, to Mrs. Partee. The will was proved in March, 1849. Mrs. Partee's parents were Christopher Todd and Sarah Todd. The will contained these provisions: "To my niece, Sarah D. Todd, wife of William B. Partee, of New Orleans, and to ber heirs, I give and bequeath (1) my plantation, commonly called No

Mistake' plantation, near Satartia, Yazoo county, state of Mississippi, with all the negroes, horses, mules, cattle, buildings, and farming utensils that may be found on said estate at the time of my death and belonging to me. (2) I give and bequeath to the said Sarah D. Todd and to her heirs about six thousand acres of land, situated in this state, and entered by E. Lawrence and Brashear, in my name. This bequest is made to Sarah D. Todd, wife of William B. Partee, upon the following conditions, under the penalty, in case of non-compliance, of loss of the above property: The first of said conditions is that the said Sarah D. Todd, wife of the said William B. Partee, shall within the next ensuing month after my death pay to Miss Elizabeth Calhoun, of Maury county, state of Tennessee, and to Nathaniel Calhoun, and to Christopher Calhoun, his brother, children of Margaret Todd, wife of Charles Calhoun, and residing in Maury county, Tennessee, the sum to each of twelve thousand dollars; that is to say, to Miss Elizabeth Calhoun the sum of twelve thousand dollars, to Nathaniel Calhoun the sum of twelve thousand dollars, and to Christopher Calhoun twelve thousand dollars, and in the case of the death of either or any of them without issue, then the sum or sums coming to said deceased parties or their heirs to be given to the survivor or survivors, in equal proportions. The second of said conditions is that the said Sarah D. Todd and her heirs shall pay to Christopher Todd and to Sarah, his wife, my sister, one thousand dollars per annum during the life of either, payable as they or the survivor may require it." The will then gives various lands and legacies in money to various persons named, and then proceeds: "And my will, as follows: That all the legacies which I have given in money and not charged upon any particular fund is not demandable from any person whomsoever for the term of two years after my decease. * * * And should any legatee endeavor by action of any kind or nature, before any court in any state, to break, injure, or destroy any of my depositions, the bequest or legacy to such person or persons is annulled or rescinded by me. The legacies of $12,000 each to Elizabeth Calhoun, Nathaniel Calhoun, and Christopher Calhoun may be paid by Sarah D. Todd, wife of William B. Partee, in the following manner, viz.: To Elizabeth Calhoun, on the day of her marriage, and to Nathaniel and Christopher, when they become of age, upon condition that the said Sarah D. Todd pays to the said legatees annually interest at seven per cent. upon their respective legacies, after she comes in possession of No Mistake' plantation."

Mrs. Todd having died in 1853, and Christopher Todd having been paid his annuity up to January 1, 1861, he filed a bill in chancery, in November, 1867, in the chancery court of Yazoo county, against William B. Partee and his wife, claiming that such annuity was a charge on the land so devised to Mrs. Partee, and praying for a sale of the land to pay the arrears due on the annuity. Christopher Todd having died during the pendency of the suit, it was revived in the name of Edward Drenning, his special administrator, and the court, on June 8, 1868, made a decree that there was due to Todd at his death, as an annuitant under said will, $7,680.04; that that sum was a lien on said "No Mistake" plantation, against all liens created thereon since the death of Dick; and that said land be sold to pay that sum. It was sold, by the same description as in said conveyance to James D. Partee, to said Hudson and Ewing, on April 15, 1878, they being then the owners of the decree in the suit, and they received a deed of that date therefor. In 1871 James D. Partee, as owner of the land, had paid a part of the Drenning decree. In February, 1877, Drenning was paid the balance by Robert G. Hudson, and assigned the decree to him, under an order of the chancery court, the assignment being for the benefit of Benson, Hudson, and Ewing. Afterwards Hudson and Ewing acquired all the interest of Benson therein.

Hudson and Benson, and Charles C. Ewing, individually and as administrator of S. S. Ewing, and Drenning, as executor of Stewart and as adminisv.4--20