the $500 originally fixed, but that he was to go on with the litigation, see how it came out, and then Charles Springer would do what was right, and after the property should be sold he would pay said Jones a big cash fee.

(8) If the jury believes from the evidence that the original contract in relation to Mr. Jones' compensation was afterward modified so that such compensation was not to be the $500 agreed upon, then you should find for the plaintiffs in such sum as you believe from the evidence to be the reasonable value for the services of Jones less whatever sum may have been paid thereon."

The plaintiff excepted to the refusal of the court to instruct the jury as follows:

"The court instructs the jury that the credibility of the witnesses is a question exclusively for the jury; and the law is that where two witnesses testify directly opposite to each other, the jury are not bound to regard the weight of the evidence as evenly balanced. The jury have a right to determine from the appearance of the witnesses on the stand, their manner of testifying, their apparent candor and fairness, their apparent intelligence or the lack of intelligence, and from all of the other surrounding circumstances appearing on the trial, which witness is the more worthy of credit and to give credit accordingly."

But so far as the plaintiff was entitled to this instruction it was given to the jury by instruction 14. A judge is not bound to charge the jury in the exact words proposed to him by counsel. The form of expression may be his own. If he instructs the jury correctly and in substance covers the relevant rules of law proposed to him by counsel, there is no error in refusing to adopt the exact words of the request. Continental Improvement Company v. Stead, 95 U. S. 161.

The judgment of the Supreme Court of New Mexico is, therefore,

Affirmed.

204 U.S.

Argument for Plaintiff in Error.

COFFEY v. COUNTY OF HARLAN.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA.

No. 177. Argued January 24, 1907.-Decided February 25, 1907.

The power of the State to enact laws creating and defining crimes against its sovereignty, regulating procedure in the trial of those charged with committing them, and prescribing the character of the sentence of those found guilty is absolute and without limits other than those prescribed by the Constitution of the United States. The statute of Nebraska, providing that one embezzling public money shall be imprisoned and pay a fine equal to double the amount embezzled, which shall operate as a judgment for the use of the persons whose money was embezzled, is not unconstitutional as depriving the person convicted of embezzlement of his property without due process of law because it provides for such judgment irrespective of whether restitution has been made or not.

In such a case the fine is a part of the punishment and it is immaterial whether it is called a penalty or a civil judgment, and the only question on which defendant can be heard is as to the fact and amount of the embezzlement, and if he has an opportunity to be heard as to that he is not denied due process of law.

THE facts are stated in the opinion.

Mr. C. C. Flansburg, with whom Mr. R. O. Williams was on the brief, for plaintiff in error:

An unconstitutional statute affords protection to no one who has acted under it. And the judgment rendered in accordance with its mandate is a nullity everywhere. Simonds v. Simonds 103 Massachusetts, 572; Campbell v. Sherman, 35 Wisconsin, 103; Monore v. Collins, 17 Ohio St. 665; Astrom v. Hammond, 3 McLean, 107; Woolsey v. Dodge, 6 McLean, 142.

A judgment rendered by the court upon a matter not within the pleadings nor tendered by the issues of the case must be treated as a nullity. Reynolds v. Stockton, 43 N. J. Eq. 211;

Argument for Defendant in Error.

204 U.S.

S. C., 140 U. S. 254; Munday v. Vail, 34 N. J. L. 418; Unfried v. Heberer, 63 Indiana, 67; Smith v. Ontario, 18 Blatchf. 454.

A judgment in a criminal case is not a bar in a civil case and cannot be pleaded as an estoppel. United States v. Schneider, 35 Fed. Rep. 107; Coffey v. United States, 116 U. S. 436; Betts v. New Hartford, 25 Connecticut, 180; Clark v. Irwin, 9 Ohio, 131; Mead v. Boston, 3 Cush. 404; Corbley v. Wilson, 71 Illinois, 209; Ches. & O. Ry. v. Dyer County (Tenn.), 11 S. W. Rep. 943, 945; Hutchinson v. The Bank &c., 41 Pa. St. 42; Wharton, Evidence, § 777; Potter v. Baker, 19 N. H. 166.

Mr. J. W. Deweese, with whom Mr. W. A. Myers and Mr. W. S. Morlan were on the brief, for defendant in error:

At common law, a fine could be enforced by levy of execution and a sale of property thereunder. Statutes providing for the issuance of execution upon a fine are declaratory of the common law. Gill v. State, 39 W. Va. 479; Howard v. Fuller, 100 Kentucky, 148; Huddleson v. Ruffin, 6 Ohio St. 604; Ex parte Dickerson, 30 Texas, 448; State v. Terry, 17 S. W. Rep. 1075.

A statute that provides, as part of the punishment for embezzlement, for a fine for the use of the party whose money or property has been embezzled, is not unconstitutional for the reason that it makes the amount of the fine equal to double the amount of money or property embezzled. Mo. Pac. Ry. Co. v. Humes, 115 U. S. 512; Minneapolis & St. L. Ry. Co. v. Beckwith, 129 U. S. 26; Mier v. Phillips Fuel Co., 107 N. W. Rep. 621.

The construction of a state statute and its effect upon sheriff's sale of land as determined by the highest court of a State, is conclusive upon the Federal court as to the land in that State. Henry v. Pittsburg Clay Mf'g Co., 80 Fed. Rep.

485.

The constitutionality of a state statute cannot be attacked on the ground that it is repugnant to the clause of the Four

teenth Amendment prohibiting a State from depriving any person of property without due process of law, by one who is not thereby deprived of any property.

If there had been, prior thereto, any doubt as to the validity of the county's title to the land in question, that question was resolved in its favor by the proceedings brought against John Everson for destroying the timber on the premises, and the matter is one that has been adjudicated. Everson v. State, 66 Nebraska, 154.

"Due course of law" simply means that a person should be brought into court and have an opportunity to prove any fact for his protection; the regular course of the administration of the law being through courts of justice by timely and regular proceedings to judgment and execution, according to the fixed forms of law. Morley v. Lake &c., 146 U. S. 162; Murray v. Hoboken Land Co., 18, How. 272; People v. Essex County, 70 N. Y. 229; Central Land Co. v. Laidley, 159 U. S. 103.

MR. JUSTICE MOODY delivered the opinion of the court.

The plaintiff in error, a citizen of Kansas, brought an action of ejectment against the defendant in error, a citizen of Nebraska, in the Circuit Court for the District of Nebraska, where there was judgment for the defendant, which is brought here by writ of error on a constitutional question. The land sought to be recovered was once the property of Ezra S. Whitney, through whom both parties claim title; the plaintiff, through a deed of the land executed and delivered by Whitney, on November 30, 1898; the defendant, under a sale of the land on execution in pursuance of a levy duly made on April 12, 1898. The defendant's paper title is therefore the earlier one and must prevail if the sale upon execution was valid. The validity of this sale is the only question in the case. The execution issued on a judgment in a criminal case, in which, by information, Whitney was charged with the

embezzlement, while County Treasurer of Harlan County, in the State of Nebraska, of eleven thousand one hundred and ninety dollars of the public money in his possession by virtue of his office. Upon trial by jury Whitney was found guilty as charged and sentenced to imprisonment for a term of years, and to "pay a fine in the sum of $22,390," which was double the amount of the embezzlement found by the jury. On appeal the conviction was affirmed by the Supreme Court of Nebraska. Whitney v. State, 53 Nebraska, 287. The sentence awarded was that prescribed by section 124 of the Nebraska criminal code, which provides that a public officer who embezzles the public money "shall be imprisoned in the penitentiary not less than one year nor more than twenty-one years, according to the magnitude of the embezzlement, and also pay a fine equal to double the amount of money or other property so embezzled as aforesaid, which fine shall operate as a judgment at law on all of the estate of the party so convicted and sentenced, and shall be enforced to collection by execution or other process for the use only of the party or parties whose money or other funds, property, bonds or securities, assets or effects of any kind as aforesaid has been so embezzled." Compiled Statutes of Nebraska, 1903, p. 1942.

The proceedings which ended in the sale on execution under which the defendant claims title were in conformity with the constitution and laws of Nebraska, and the sheriff's deed vested title in the defendant. Everson v. State, 66 Nebraska, 154. It is within the power of the State to enact laws creating and defining crimes against its sovereignty, regulating the procedure in the trial of those who are charged with committing them, and prescribing the character of the sentence which shall be awarded against those who have been found guilty. In these respects the State is supreme and its power absolute, and without any limits other than those prescribed by the Constitution of the United States. The exercise of the power of the State in this field cannot be drawn in question in this court or elsewhere than in its own courts, except for