Dissenting Opinion: Fuller, C. J., Field, Harlan, Brewer, JJ. served so much of the act of 1845 as announced the common law rule and omitted so much as established new restrictions, referring instead to the restrictions of 1864. If the intention had been to change the common law rule the words "under protest" would have been stricken out, and it seems to me a most dangerous and wholly inadmissible rule of construction to treat them as accidentally retained traces of something that had ceased to be. The words "at or before the payment" were omitted, but, as already said, these were merely declaratory and redundant, and that was undoubtedly the reason of the omission. The last clause of section 3011 as amended. refers to the notice in writing required by section 2931, and is simply a cross reference to the additional requirement that the Treasury proceeding shall be had before the action is commenced. In my opinion the action remained an action in the nature of a common law action, and governed by the principles of the common law, except as otherwise specifically provided. Indeed section 3011 as it now stands is unambiguous on its face, and does not call for construction unless in respect of the character of the protest; and that need not be considered, as the finding of facts must be taken to mean that no protest at all was made at the time these duties were paid and the pieces of iron obtained by the importer. I cannot accept the conclusion that under this act the importer can recover on a payment not made under duress, and think that such duress cannot be said to exist in the absence of any objection to making the payment. I, therefore, dissent from the opinion and judgment of the court, and am authorized to say that MR. JUSTICE FIELD, MR. JUSTICE HARLAN and MR. JUSTICE BREWER concur in this dissent. Opinion of the Court. MCELROY v. UNITED STATES. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF ARKANSAS. No. 402. Submitted October 13, 1896. — Decided November 2, 1896. G., B., H., C., S. and J. were indicted April 16 for assault with intent to kill EM.; also, on the same day, for assault with intent to kill SM.; also, May 1, for arson of the dwelling house of EM.; and, on the same 16th of April, G., B. and H. were indicted for arson of the dwelling house of BM. The court ordered the four indictments consolidated. All the defendants except J. were then tried together, and the trials resulted in separate verdicts of conviction, and the prisoners so convicted were severally sentenced to terms of imprisonment. Held, that the several charges in the four indictments were for offences separate and distinct, complete in themselves, independent of each other, and not provable by the same evidence; and that their consolidation was not authorized by Rev. Stat. § 1024. Such a joinder cannot be sustained where the parties are not the same, and where the offences are in nowise parts of the same transaction, and depend upon evidence of a different state of facts as to each or some of them. THE case is stated in the opinion. Mr. William M. Cravens for plaintiff's in error. Mr. Assistant Attorney General Dickinson for defendants in error. MR. CHIEF JUSTICE FULLER delivered the opinion of the court. George McElroy, John C. W. Bland, Henry Hook, Charles Hook, Thomas Stufflebeam and Joe Jennings were indicted in the district Court for the Western District of Arkansas for assault with intent to kill Elizabeth Miller, April 16, 1894, the indictment being numbered 5332; also for assault with intent to kill Sherman Miller, on the same day, the indictment being numbered 5333; also for arson of the dwelling house of one Eugene Miller, May 1, 1894, the indictment being numbered 5334. Three of these defendants, namely, Opinion of the Court. George McElroy, John C. W. Bland and Henry Hook, were also indicted for the arson of the dwelling house of one Bruce Miller, April 16, 1894, the indictment being numbered 4843. It does not appear that Jennings was tried. The court ordered the four indictments consolidated for trial, to which each of the five defendants duly excepted. Trial was then had and resulted in separate verdicts finding the defendants guilty, and, after the overruling of motions for new trial and in arrest, they were severally sentenced on each indictment to separate and successive terms in the penitentiary, and sued out this writ of error. The consequence of this order of consolidation was that defendants Stufflebeam and Charles Hook were tried on three separate indictments against them and three other defendants, consolidated with another indictment against the other defendants for an offence with which the former were not charged, while an indictment for feloniously firing the dwelling house of one person on a certain day was tried with an indictment for arson committed a fortnight after in respect of the dwelling house of another person. Section 1024 of the Revised Statutes is as follows: "When there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offences, which may be properly joined, instead of having several indictments the whole may be joined in one indictment in separate counts; and if two or more indictments are found in such cases, the court may order them to be consolidated." The order of consolidation under this statute put all the counts contained in the four indictments in the same category as if they were separate counts of one indictment, and we are met on the threshold with the inquiry whether counts against five defendants can be coupled with a count against part of them or offences charged to have been committed by all at one time can be joined with another and distinct offence committed by part of them at a different time. The statute was much considered in Pointer v. United States, Opinion of the Court. 151 U. S. 396, 403. In that case the defendant was charged in different counts with two murders alleged to have been committed on the same day and in the same county and district, and moved to quash on that ground, which motion was denied. Before the case was opened to the jury for the government the defendant moved that the district attorney be required to elect on which count of the indictment he would claim a conviction. The motion was overruled, and he was required to go to trial upon all the counts. Upon the conclusion of the evidence the defendant renewed the motion that the government be required to elect upon which count of the indictment it would prosecute him, but this motion was overruled. The jury found separate verdicts of guilty of each murder as charged in the appropriate count. This court, speaking through Mr. Justice Harlan, said: "While recogniz ing as fundamental the principle that the court must not permit the defendant to be embarrassed in his defence by a multiplicity of charges embraced in one indictment and to be tried by one jury, and while conceding that regularly or usually an indictment should not include more than one felony, the authorities concur in holding that a joinder in one indictment, in separate counts, of different felonies, at least of the same class or grade, and subject to the same punishment, is not necessarily fatal to the indictment upon demurrer or upon motion to quash or on motion in arrest of judgment, and does not, in every case, by reason alone of such joinder, make it the duty of the court, upon motion of the accused, to compel the prosecutor to elect upon what one of the charges he will go to trial." It was decided that it could not be held from anything on the face of the indictment that the trial court erred or abused its discretion in overruling the defendant's motion to quash the indictment, or his motions for an election by the government between the two charges of murder. The indictment showed that the two murders were committed on the same day, in the same county and district, and with the same kind of an instrument, and these facts justified the trial court in forbearing at the beginning of the trial to compel an election. And when the evidence was closed it appeared Opinion of the Court. therefrom that the two murders were committed at the same place, on the same occasion, and under such circumstances that the proof in respect of one necessarily threw light upon the other; and that "there was such close connection between the two felonies, in respect of time, place and occasion, that it was difficult, if not impossible, to separate the proof of one charge from the proof of another." As it was apparent that the substantial rights of the accused were not prejudiced by the action of the trial court, we declined to reverse on the ground of error therein. It will be perceived that the two offences were charged against one and the same defendant, and that the case disclosed such concurrence as to place, time and circumstances as rendered the proof the same as to both, and made the two alleged murders substantially parts of the same transaction. In the case at bar, the two indictments for assault with intent to kill on April 16, 1894, and the indictment for arson on May 1, 1894, were against all of the defendants, while the indictment for arson committed April 16, 1894, the same day of the alleged assaults with intent to kill, was against three of the defendants and not against the others. On the face of the indictments there was no connection between the acts charged as committed April 16 and the arson alleged to have been committed two weeks later, on which last occasion the government's testimony, according to the record, showed that the two defendants Charles Hook and Thomas Stufflebeam were not present. The record also discloses that there was no evidence offered tending to show that there had been or was a conspiracy between defendants, or them and other parties, to commit the alleged crimes. The several charges in the four indictments were not against the same persons, nor were they for the same act or transaction, nor for two or more acts or transactions connected together; and in our opinion they were not for two or more acts or transactions of the same class of crimes or offences which might be properly joined, because they were substantive offences, separate and distinct, complete in themselves and independent of each other, committed at different times and |