a part of the machinery of the court, acting, at least, under color of authority, and, if not a de jure grand jury, were at least a de facto grand jury, and their acts cannot be collaterally attacked, nor the jurisdiction of the court devested on habeas corpus. G16, 21 Am. Rep. 493; Walker v. State, 7 Even if this court should be of the opinTex. App. 245, 32 Am. Rep. 595; State v.Įion that the method of selecting these grand Nordstrom, 7 Wash. 506, 35 Pac. 382; Un-jurors was irregular or unauthorized by derhill, Crim Ev. p. 65, § 53, p. 67, § 54; law, yet the fact remains that they were Blackwell v. State, 67 Ga. 76, 44 Am. Rep. 717; Rice v. Rice, 47 N. J. Eq. 559, 11 L. R.A. 591, 21 Atl. 286; People v. Wolcott, 51 Mich. 612, 17 N. W. 78; Emery's Case, 107 Mass. 181, 9 Am. Rep. 22; Boyd v. United States, 116 U. S. 616–641, 29 L. ed. 746, 754, 6 Sup. Ct. Rep. 524; Counselman v. Hitch- Ex parte Harding, 120 U. S. 782-784, 30 L. cock, 142 U. S. 547-586, 35 L. ed. 1110, 3 ed. 824, 825, 7 Sup. Ct. Rep. 780; State ex Inters. Com. Rep. 816, 12 Sup. Ct. Rep. 195. rel. Dunn v. Noyes, 87 Wis. 340, 27 L.R.A. If the errors were such that the trial|776, 41 Am. St. Rep. 45, 58 N. W. 386: Peocourt failed to obtain jurisdiction over the ple v. Petrea, 92 N. Y. 128; People v. Dolan, petitioner, or lost jurisdiction by errors 6 Hun, 232; Dolan v. People, 6 Hun, 493, 64 committed in invading the petitioner's con- |N. Y. 485; Carpenter v. People, 64 N. Y. stitutional rights and in transcending plain 483; Thompson v. People, 6 Hun, 135; statutes enacted for the guidance of the court and the protection of the petitioner, then this court will not fail to do its duty and release the petitioner, simply because the trial court committed grievous errors, which errors resulted in the unconstitutional and void conviction, especially as the petitioner has exhausted every other remedy given him under the law. Rogers v. Peck, 199 U. S. 425, 50 L. ed. 256, 26 Sup. Ct. Rep. 87; Ex parte Reggel, 114 U. S. 642, 29 L. ed. 250, 5 Sup. Ct. Rep. 1148; Re Converse, 137 U. S. 624, 34 L. ed. 796, 11 Sup. Ct. Rep. 191; Hodgson v. Vermont, 168 U. S. 262, 42 L. ed. 461, 18 Sup. Ct. Rep. 80; Brown v. New Jersey, 175 U. S. 172, 44 L. ed. 119, 20 Sup. Ct. Rep. 77; Re Frederich, 149 U. S. 70, 37 L. ed. 653, 13 Sup. Ct. Rep. 793. Mr. Don C. Smith argued the cause, and, with Mr. W. O. Cromwell, filed a brief for respondent: Excepting in cases affecting ambassadors, other public ministers and consuls, and those in which a state is a party, this court can issue the writ of habeas corpus only in aid of its appellate jurisdiction. Ex parte Siebold, 100 U. S. 371, 25 L. ed. 717; Ex parte Bollman, 4 Cranch, 75, 2 L. ed. 554; Ex parte Watkins, 3 Pet. 202, 7 L. ed. 653; Ex parte Wells, 18 How. 307-328, 15 L. ed. 421-431; Ableman v. Booth, 21 How. 506, 16 L. ed. 169; Ex parte Yerger, 8 Wall. 85, 19 L. ed. 332. This court having no jurisdiction of criminal cases by writ of error or appeal cannot discharge, on habeas corpus, a person imprisoned under the sentence of a circuit or district court in a criminal case, unless the sentence exceeds the jurisdiction of that court, or there is no authority to hold him under the sentence. Ex parte Wilson, 114 U. S. 420, 29 L. ed. 90, 5 Sup. Ct. Rep. 935; Re Nielsen, 131 U. S. 184, 185, 33 L. ed. 118, 9 Sup. Ct. Rep. 672. People v. Jewett, 3 Wend. 314; Cox v. People, 80 N. Y. 500; Friery V. People, 2 Keyes, 450; Ferris v. People, 31 How. Pr. 145; People v. Fitzpatrick, 65 How. Pr. 365; Re Gannon, 69 Cal. 541, 11 Pac. 240; Ex parte Haymond, 91 Cal. 545, 27 Pac. 859; State v. Belvel, 89 Iowa, 405, 27 L.R.A. 846, 56 N. W. 545; Ex parte Springer, 1 Utah, 214; Re Burke, 76 Wis. 357, 45 N. W. 24; Re Wilson, 140 U. S. 575585, 35 L. ed. 513-517, 11 Sup. Ct. Rep. 870; Ex parte Siebold, 100 U. S. 375, 25 L. ed. 717; Ex parte Bigelow, 113 U. S. 330, 331, 28 L. ed. 1006, 5 Sup. Ct. Rep. 542; Ex parte Watkins, 3 Pet. 193, 7 L. ed. 650; Ex parte Parks, 93 U. S. 18-23, 23 L. ed. 787; Ex parte Yarbrough, 110 U. S. 651, 28 L. ed. 274, 4 Sup. Ct. Rep. 152; Ex parte Crouch, 112 U. S. 178, 28 L. ed. 690, 5 Sup. Ct. Rep. 96; Ex parte Wilson, 114 U. S. 421, 29 L. ed. 90, 5 Sup. Ct. Rep. 935; Miller v. People, 183 Ill. 430, 56 N. E. 60. There is a complete analogy between the case of a de facto judge and a de facto grand jury. The proposition that a de facto judge may lawfully preside in the trial of a criminal case and impose a valid sentence has been settled beyond any controversy. Ex parte Ward, 173 U. S. 452-456, 43 L. ed. 765, 19 Sup. Ct. Rep. 459; Sheehan's Case, 122 Mass. 445, 23 Am. Rep. 374; Fowler v. Bebee, 9 Mass. 231, 6 Am. Dec. 62; People ex rel. Ballou v. Bangs, 24 Ill. 184; Re Burke, 76 Wis. 357, 45 N. W. 24; Re Manning (Manning v. Weeks) 139 U. S. 504, 35 L. ed. 264, 11 Sup. Ct. Rep. 624; Church, Habeas Corpus, 256, 257, 259. The district court of Comanche county, being a court of general original jurisdiction, clothed not only with these powers specially conferred by statute, but with common-law jurisdiction by the organic law of the territory, bestowed upon it by the act of Congress creating the territorial government, and having authority for the redress of all wrongs committed against the Constitution or laws of the United States, a building did not go to the jurisdiction of or of the territory, as a necessary incident the trial court. There is no pretense that to the exercise of the jurisdiction and pow- the petitioner lost any opportunities by reaers conferred upon said court, was neces- son of no building being named. sarily clothed with the inherent power to summon for its use those integral elements of the machinery of the court which were necessary for the carrying into effect of the express powers granted to it. Clawson v. United States, 114 U. S. 477488, 29 L. ed. 179-183, 5 Sup. Ct. Rep. 949; 1 Chitty, Crim. Law, 518; 2 Hale, P. C. 265, 266; United States v. Hill, 1 Brock. 156, Fed. Cas. No. 15,364; Mackey v. People, 2 Colo. 13; Stone v. People, 3 Ill. 326; Straughan v. State, 16 Ark. 37; Wilburn v. State, 21 Ark. 198; Gibson v. Com. 2 Va. Cas. 111; Shaffer v. State, 1 How. (Miss.) 238; Woodsides v. State, 2 How. (Miss.) 655; Thompson & M. Juries, chap. 22; 2 Cooley's Bl. Com. p. 301, ¶ 2, chap. 23. Mr. Justice Holmes delivered the opinion of the court: This is a petition for a writ of habeas corpus and a writ of certiorari, brought by a person imprisoned on a conviction for murder, alleging that the judgment under which he is held is void. A rule to show [108]cause was issued and the case was heard on the petition and answer. The various grounds upon which the petition is supported are alleged to go to the jurisdiction of the trial court. Ex parte Harding, 120 U. S. 782, 30 L. ed. 824, 7 Sup. Ct. Rep. 780. See New v. Oklahoma, 195 U. S. 252, 49 L. ed. 182, 25 Sup. Ct. Rep. 68. A writ of habeas corpus for the same causes was heard by the circuit court of appeals and discharged. Ex parte Moran, 144 Fed. 594. The judgment also was affirmed by the supreme court of the territory in which the petitioner was tried. 14 Okla. 544, 78 Pac. 111. The petitioner was tried in the district court for Comanche county in the territory of Oklahoma. The first ground now relied upon is that the court was not duly organized under the act of Congress requiring the supreme court to define the judicial districts, and to fix the times and places at each coun ty seat where the district court shall be held. The order of the supreme court went no further in the way of fixing the place than to specify Lawton for the county of Comanche. This order was made on January 15, 1902, about six months after the land, which had been Indian territory, was opened for settlement and the county created. At that time and at the time of the trial there were no county or court buildings in the county. The order of the supreme court was as precise as the circumstances permitted it to be, and the failure to specify The next ground argued is that the laws of the territory were not followed in the selection of the grand jury, because the persons selected were not electors of the territory, and some of them were nonresidents, with other subordinate matters. The order for the summons stated the reason, which was that there had been no election held in the county, and there were no names of jurors in the jury box; whereupon the presiding judge ordered the sheriff to summon twenty persons from the body of the county. We have heard no answer to the material portion of the reasoning of the circuit court of appeals upon this point. If the legisla-[104] ture of Oklahoma had prescribed the method of selection followed, that method would not have violated the Constitution or any law or treaty of the United States. If it did prescribe a different one, a departure from that was a violation of the territorial enactment alone. The acts of the legislature of Oklahoma are not laws of the United States within the meaning of Rev. Stat. § 753, U. S. Comp. Stat. 1901, p. 592. If any laws have been violated it is the latter one. Therefore the petitioner is not entitled to release on this ground under Rev. Stat. $ 753. The 5th Amendment, requiring the presentment or indictment of a grand jury, does not take up unto itself the local law as to how the grand jury should be made up, and raise the latter to a constitutional requirement. See Rawlins v. Georgia, 201 U. S. 638, 50 L. ed. 899, 26 Sup. Ct. Rep. 560. It is unnecessary to consider whether the judge went beyond his powers under the circumstances. See Clawson States, 114 U. S. 477, 29 L. ed. 179, 5 Sup. Ct. Rep. 949. But it is proper to add that while the reason which we have given is logically the first to be considered by this court. we do not mean to give any countenance to the notion that, if the law was disobeyed, it affected the jurisdiction of the court. parte Harding, 120 U. S. 782, 30 L. ed. 824, 7 Sup. Ct. Rep. 780; Re Wilson, 140 U. S. 575, 35 L. ed. 513, 11 Sup. Ct. Rep. 870. V. United Ex The third ground on which the jurisdiction of the trial court is denied is that, on August 4, 1901, the date of the commission of the crime, the place was within territory not embraced in any organized county, and to was attached for judicial purposes Canadian county. By the Oklahoma organic [Obviously the court here intended to convey the idea that, if any law has been violated, the territorial enactment is the one.-Ed.] V. (See S. C. Reporter's ed. 106–108.) Judgment-full faith and credit. act, May 2, 1890, chap. 182, § 9 (26 Stat. at, *NORTHERN ASSURANCE COMPANY OF[106] L. 85, 86), this is provided for, and by § 10 LONDON, Plff. in Err., such offenses shall be tried in the county to which the territory "shall be attached." It GRAND VIEW BUILDING ASSOCIATION. is argued that there had been no law passed changing the place of trial or affecting the order of the supreme court attaching the territory to Canadian county. But the very words quoted from § 10 look to the state of things at the time of trial. At that time Comanche county had been organized, and a term of court fixed for it by the order of the supreme court dated January 15, 1902. The [105] meaning of this order, so far as the power of the supreme court went, is plain. The statute gave the petitioner no vested right to be tried in Canadian county, and his trial in Comanche county conformed to its intent. See Post v. United States, 161 U. S. 583, 40 L. ed. 816, 16 Sup. Ct. Rep. 611. 1. A judgment of the Supreme Court of the United States to the effect that a policy of fire insurance could not be recovered upon as it stood nor be helped out by any doctrine of the common law is not denied full faith and credit by an adjudication of a state court that such judgment is not a bar to a suit in equity to reform the policy so that it will express consent to concurrent insurance, and to recover upon such policy as reformed. Election of remedies. 2. The prosecution of an action at law upon a policy of fire insurance to final judgment denying recovery, upon the ground that the policy could neither be recovered upon as it stood nor be helped out by any doctrine of the common law, is not an election which bars a suit in equity to reform the policy so that it will express consent to concurrent insurance, and to recover upon such policy as reformed. [No. 40.] Argued October 18, 19, 1908. Decided November 5, 1906. N ERROR to the Supreme Court of the The fourth ground is that, as the crime was committed on August 4, 1901, two days before the opening of the land for settlement, the place was still under the exclusive jurisdiction of the United States, and therefore the crime was punishable under Rev. Stat. § 5339, U. S. Comp. Stat, 1901, p. 3627, alone. The order of the President with regard to the conditions of settlement and entry are referred to as confirming the argument. But those orders were intended merely to carry out the acts of Congress governing the matter. There is no doubt that Congress was exercising control so far as settlement was concerned. But there is equally little doubt that the title to the territory had passed, that it had become part of the territory of Oklahoma, and, as such, no longer under the exclusive jurisdiction of the United States within Rev. Stat. § 5339. Act of May 2, 1890, chap. 182, 88 1, 4, 6, 26 Stat. at L. 81; act of June 6, 1900, chap. 813, 31 Stat. at L. 677; act of March 3, 1901, chap. 846, 31 Stat. at L. 1093. See Bates v. Clark, 95 U. S. 204, 24 L. ed. 471; Buster v. Wright, 68 C. C. A. 505, 135 Fed.ings-see notes to Lindley v. O'Reilly, 1 L. 947, 952; Ex parte Moran, 144 Fed. 594, 602. Therefore the application of the territorial statute was not excluded and the murder was a violation of the territorial law. Finally it is contended that the petitioner was compelled to be a witness against himself, contrary to the 5th Amendment, because he was compelled to stand up and walk before the jury, and because, during a recess, the jury was stationed so as to observe his size and walk. If this was an error, as to which we express no opinion, it did not go to the jurisdiction of the court. Felts v. Murphy, 201 U. S. 123, 50 L. ed. 689, 26 Sup. Ct. Rep. 366. Rule discharged. Writs denied. State of Nebraska to review a decree which affirmed a decree of the District Court of Lancaster County in that state, reforming a policy of fire insurance so as to express consent to concurrent insurance, and enforcing the policy as so reformed, notwithstanding a prior judgment of the Supreme Court of the United States in an action at NOTE. As to full faith and credit to be given to state records and judicial proceed R.A. 79; Cummington v. Belchertown, 4 L. R.A. 131; Rand v. Hanson, 12 L.R.A. 574; Wiese v. San Francisco Musical Fund Soc. 7 L.R.A. 578; Darby v. Mayer, 6 L. ed. U. S. 367; Mills v. Duryee, 3 L. ed. U. S. 411; D'Arcy v. Ketchum, 13 L. ed. U. S. 648; and Huntington v. Attrill, 36 L. ed. U. S. 1123. As to conclusiveness and effect of judgments as between Federal and state courts -see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. C. A. 478; and Union & Planters' Bank v. Memphis, 49 C. C. A. 468. As to election of remedies generallysee notes to Fowler v. Bowery Sav. Bank, 4 L.R.A. 145; Conrow v. Little, 5 L.R.A. 693; Crossman v. Universal Rubber Co. 13 L.R.A. 91; and Mills v. Parkhurst, 13 L. R.A. 472 law denying any recovery on the policy. I choice of remedies. Affirmed. See same case below (Neb.) 102 N. W. 246. The facts are stated in the opinion. Mr. Charles J. Greene argued the cause, and, with Mr. Ralph W. Breckenridge, filed a brief for plaintiff in error: There was but one remedy open, and this was misconceived. Peters v. Bain, 133 U. S. 670-697, 33 L ed. 696-706, 10 Sup. Ct. Rep. 354; 7 Enc. Pl. & Pr. p. 366; State v. Bank of Commerce, 61 Neb. 25, 84 N. W. 406; Omaha v. Redick, 61 Neb. 1C3; 85 N. W. 46; Simons v. Fagan, 62 Neb. 287, 87 N. W. 21; Gayer v. Parker, 24 Neb. 643, 8 Am. St. Rep. 227, 39 N. W. 845; Pekin Plow Co. v. Wilson, 66 Neb. 115, 92 N. W. 178; Chicago, B. & Q. R. Co. v. Bigley, 1 Neb. (Unof.) 225, 95 N. W. 344; Pinkham v. Pinkham, 60 Neb. 600, 83 N. W. 837; Lansing v. Commercial Union In the present proceeding, the building association seeks to establish an agreement which conflicts with the agreement expressed in the written policy, and which we submit has, by the judgment of this court, been conclusively determined to have been in force at the time of the fire. Steinbach v. Relief F. Ins. Co. 77 N. Y. Assur. Co. 4 Neb. (Unof.) 140, 93 N. W. 756. 498, 33 Am. Rep. 655. Where a plaintiff brings an action upon a written contract in a law court, he elects to stand upon the contract as written; and if he prosecutes his action to final judgment, and is defeated, he cannot afterwards have his written contract reformed in chancery. Black, Judgm. § 518, p. 615, §§ 632, 678, p. 816; Sanger v. Wood, 3 Johns. Ch. 416; Thomas v. Joslin, 36 Minn. 1, 1 Am. St. Rep. 624, 29 N. W. 344; Gaffney v. Megrath, 23 Wash. 476, 63 Pac. 520; Ward v. Green, 88 Tex. 177, 30 S. W. 864; Kearney Mill. & Elevator Co. v. Union P. R. Co. 97 Iowa, 719, 59 Am. St. Rep. 434, 66 N. W. 1059; Thompson v. Howard, 31 Mich. 312; Thomas v. United Firemen's Ins. Co. 108 Ill. App. 278. Mr. Joseph R. Webster argued the cause, and, with Messrs. Halleck F. Rose and Wilmer B. Comstock, filed a brief for defendant in error: Judgments and decrees of the circuit courts of the United States, sitting in a particular state, are to be accorded in the courts of that state such effect, only, as would be accorded, in similar circumstances, to the judgments and decrees of a state tribunal of equal authority. Dupasseur v. Rochereau, 21 Wall. 130, 22 L. ed. 588; Crescent City L. S. L. & S. H. Co. v. Butchers' Union, S. H. & L. S. L. Co. 120 U. S. 146, 30 L. ed. 616, 7 Sup. Ct. Rep. 472; Pendleton v. Russell, 144 U. S. 644, 36 L. ed. 576, 12 Sup. Ct. Rep. 743; Metcalf v. Watertown, 153 U. S. 676, 38 L. ed. 863, 14 Sup. Ct. Rep. 947; Hancock Nat. Bank v. Farnum, 176 U. S. 645, 44 L. ed. 621, 20 Sup. Ct. Rep. 506. The opinion below, so far from being a departure from the rules giving effect to the judgments of the courts of the state, is definitely rested upon prior authority defining the effect which, in like circumstances, is given to the judgments of the state courts. The present record does not present a case for the application of the doctrine of election, because the plaintiff did not have a The institution or the prosecution of a suit to judgment is not an essential or decisive fact in determining the applicability of the doctrine of election, as the law is administered in the forum where this suit was tried. Chicago, B. & Q. R. Co. v. Bigley, supra. The judgment here assailed merely involves the exercise of one of the exclusive powers of equity, under circumstances which meet with the express sanction of the rule of this court; and the pleas of res judicata and election were disposed of according to time-honored doctrines, borrowed from the decisions of this court. Parker v. Circuit Court Judges, 12 Wheat. 561, 6 L. ed. 729; Smith v. M'Iver, 9 Wheat. 532, 6 L. ed. 152; Tilton v. Cofield, 93 U. S. 167, 23 L. ed. 859; Phelps v. Harris, 101 U. S. 370-383, 25 L. ed. 855-860; McComb v. Frink, 149 U. S. 629-644, 37 L. ed. 876-882, 13 Sup. Ct. Rep. 993; Brady v. Daly, 175 U. S. 148, 44 L. ed. 109, 20 Sup. Ct. Rep. 62. General authority also supports the doctrines of this court and those of the judgment under review. Commercial Union Assur. Co. v. New Jer sey Rubber Co. 64 N. J. Eq. 338, 51 Atl. 451; Jenkins v. Harrison, 66 Ala. 345; Scully v Lowenstein, 56 Miss. 652; Mosby v. Wall, 23 Miss. 81, 55 Am. Dec. 71; Hawley v. Simons, 102 Ill. 115; Schrepfer v. Rockford Ins. Co. 77 Minn. 291, 79 N. W. 1005; Conyers v. Mericles, 75 Ind. 443; Cramer v. Moore, 36 Ohio St. 347; Hill v. Combs, 92 Mo. App. 243; Re Van Norman, 41 Minn. 496, 43 N. W. 334; Bunch v. Grave, 111 Ind. 351, 12 N. E. 514; Fifield v. Edwards, 39 Mich. 266; Marsh v. Masterton, 101 N. Y. 407, 5 N. E. 59; Stowell v. Chamberlain, 60 N. Y. 272; Snow v. Alley, 156 Mass. 193, 30 N. E. 691; Kelsey v. Murphy, 26 Pa. 78; Morris v. Rexford, 18 N. Y. 557; McLaughlin v. Austin, 104 Mich. 489, 62 N. W. 719; Gould v. Blodgett, 61 N. H. 115; Smith v. Bricker, 86 Iowa, 285, 53 N. W. 250; Madden v. Louisville, N. O. & T. R. Co. 66 Miss. 258, 6 So. 181; Standard Oil Co. v. Hawkins, 33 L.R.A. 739, 20 C. C. A. 468, 46 U. S. App. 115, 74 Fed. 395; White v. Whiting, 8 Daly, 23; Bowdish v. Page, 81 Hun, 170, 30 N. Y. Supp. 691; Kittredge v. Holt, 58 N. H. 191. Mr. Justice Holmes delivered the opinion of the court: This is a bill to reform a policy and to recover upon it as reformed. An action at law upon the same instrument, between the same parties, has come before this court heretofore. 183 U. S. 308, 46 L. ed. 213, 22 Sup. Ct. Rep. 133. In that case it was held that the plaintiff could not recover. The question before us at the present time is whether the supreme court of Nebraska failed to give full faith and credit to the judgment in the former case by holding that it was no bar to the relief now sought. (Neb.) 102 N. W. 246. The policy was conditioned to be void in [107] case of other "insurance, unless otherwise provided by agreement indorsed or added; and it stated, in substance, that no officer or agent had power to waive the condition except by such indorsement or addition. There was other insurance and there was no indorsement. The plaintiff alleged a waiver and an estoppel. The jury found that the agent who issued the policy had been informed on behalf of the insured and knew of the outstanding insurance. But this court held that the attempt to establish a waiver was an attempt to contradict the very words of the written contract, which gave notice that the condition was insisted upon and could be got rid of in only one way, which no agent had power to change. The judgment based upon this decision is what is now relied upon as a bar. Metcalf v. Watertown, 153 U. S. 671, 676, 38 L. ed. 861, 863, 14 Sup. Ct. Rep. 947; Hancock Nat. Bank v. Farnum, 176 U. S. 640, 645, 44 L ed. 619, 621, 20 Sup. Ct. Rep. 506. Whether sufficient grounds were shown for the relief which was granted is a matter with which we have nothing to do. But the state court was right in its answer to the question before us. The former decision, of course, is not an adjudication that the contract cannot be reformed. It was rendered in an action at law, and only decided that the contract could not be recovered upon as it stood, or be helped out by any doctrine of the common law. If it were to be a bar it would be so, not on the ground of the adjudication as such, but on the ground of election, expressed by the form in which the plaintiff saw fit to sue. As an adjudication it simply establishes one of the propositions on which the plaintiff relies,—that it cannot recover upon the contract as it stands. The supposed election is the source of the effect attributed to the judgment. If that depended on matter in pais it might be a ques tion, at least, as was argued, whether such a case fell within either U. S. Const. art. 4, § 1, or Rev. Stat. § 905, U. S. Comp. Stat. 1901, p. 677. It may be doubted whether the election must not at least necessarily appear on the face of the record as matter of law in order to give the judgment a standing under Rev. Stat. § 905. *We pass such doubts, because we are of[108] opinion that, however the election be stated, it is not made out. The plaintiff in the former action expressed on the record its reliance upon the facts upon which it now relies. It did not demand a judgment without regard to them and put them on one side, as was done in Washburn v. Great Western Ins. Co. 114 Mass. 175, where this distinction was stated by Chief Justice Gray. Its choice of law was not an election, but an hypothesis. It expressed the supposition that law was competent to give a remedy, as had been laid down by the supreme court of Nebraska and the circuit court of appeals for the circuit. Home F. Ins. Co. v. Wood, 50 Neb. 381, 386, 69 N. W. 941; Fireman's Fund Ins. Co. v. Norwood, 16 C. C. A. 136, 32 U. S. App. 490, 69 Fed. 71. So long as those decisions stood the plaintiff had no choice. It could not, or at least did not need to, demand reformation, if a court of law could effect the same result. It did demand the result, and showed by its pleadings that the path which it did choose was chosen simply because it was supposed to be an open way. Snow v. Alley, 156 Mass. 193, 195, 30 N. E. 691. A question argued as to the obligation of the contract having been impaired by a statute as construed was not taken below, and is not open here. Decree affirmed. |