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trustee, the mortgage is to be regarded as the act. In this case the court speaks of first having come into being when the mort-“the proceedings by which the mortgagee obgagee took possession, it would be void. In tained his lien, three weeks before the filing the latter view the anomalous case would be of the petition,” which at least suggests, if presented of a mortgage of all a man's stock it does not adopt, the idea that the mortgage in trade to secure a past debt, executed to then first came into being as against the one who had reasonable cause to believe that trustee. the mortgagor was insolvent and that he On the other hand, the court says in terms was receiving a preference, but executed that “the defendant's acquisition of posseswithout intent to prefer on the part of the sion of the mortgaged property before the mortgagor. There would be a preference commencement of the proceedings in bankwithin the definition in § 60a, and the mort. ruptcy, and before third persons had acgagee would know it, but he could not be quired liens or rights by attachment or said in a strict sense to have reasonable otherwise, gave him a title which was good cause to believe that it was intended to give at common law against creditors, and which a preference. We assume, for purposes of would have been good against an assignee in decision, that such a case must be regarded insolvency under the statutes of this comas falling within the intent of the act. monwealth, or against an assignee in bank.

The question, then, is one of Massachu- ruptcy under the United States bankruptcy setts law, and unfortunately the decision act of 1867.” We feel bound, on the whole, does not leave us free from doubt upon that to take this as expressing a deliberate attipoint. If hereafter the supreme court of tude of the court on the question under disthe state should adopt a different view from cussion, as undoubtedly that has been its atthat to which we have been driven, this case titude in the past. would cease to be a precedent. The lan- In Briggs v. Parkman (1841) 2 Met. 258, guage of the Massachusetts statute is, “un- 37 Am. Dec. 89, a messenger in insolvency less the property mortgaged has been deliv- took possession of the mortgaged property ered to and retained by the mortgagee, the on July 15, at half-past one. At half-past mortgage shall not be valid against a person three the mortgage was recorded. The first other than the parties thereto, until it has publication of the notice of issuing the warbeen so recorded; and a record made subse- rant to the messenger was on July 16, and quently to the time limited (fifteen days] that by the terms of the insolvent law fixed shall be void.” Mass. Rev. Laws, chap. 198, the time when the property passed. It was § 1. There are cases which indicate that an held that the mortgage was valid as against assignee in bankruptcy is a universal suc- the assignee in insolvency. In Mitchell v. cessor, like an executor or a husband, and Black (1856) 6 Gray, 100, a similar deciso that, as it is put in Lowell, Bankruptcy, sion was made as to a bill of sale by way § 309, the assignee is the bankrupt. Phos- of security, and it was intimated that the phate Sewage Co. v. Molleson, 5 Ct. Sess. law did not interfere with the action of purCas. 4th series, 1125, 1138; Bank of Scot-chasers in perfecting a title under a conland v. Cuthbert, 1 Rose, 462, 481; Selkrig tract to which there was no legal objection v. Davies, 2 Dow, P. C. 230, 248, 2 Rose, 291, when made. This case was relied on in 317. So, in the Roman law, Bonorum emp-Sawyer v. Turpin, 91 U. S. 114, 23 L. ed. tor ficto se herede agit. Gaius, IV. § 35. 235, a case like the present, decided as we But it is the settled law of Massachusetts decide this, and cited by the court below. that such a fictitious identity does not satis-In Bingham v. Jordan (1861) 1 Allen, 373, fy the statute, that the trustee in bankrupt-79 Am. Dec. 748, which decided that the ascy is "a person other than the parties there- signee in insolvency was not a "party" withto," and that, therefore, as against him the in the statute, Briggs v. Parkman was remortgage is void. Bingham v. Jordan, 1 ferred to for its implications in favor of. Allen, 373, 78 Am. Dec. 748; Blanchard v. that view, without a hint that the decision Cooke, 144 Mass. 207, 226, 11 N. E. 83; Has-was disapproved and seemingly with no conkell v. Merrill, 179 Mass. 120, 124, 125, 60 sciousness of inconsistency. Finally, in N. E. 485. Haskell v. Merrill is cited and Folsom v. Clemence (1873) 111 Mass. 273, relied on in the supreme court of the state, twelve years after Bingham v. Jordan, it and we assume that it and the other cases was held that a mortgage made more than cited still correctly state the law. It is six months before the date of a petition in clear under these cases that recording or bankruptcy, and recorded within the six taking possession after the qualification of months, was valid. This case also betrays the trustee would be too late, and it certain no sense of inconsistency with its predecesly would seem not illogical to hold that as sor, and is cited by the supreme court of against him the mortgage was to be treated Massachusetts as authority for its last-quotas nonexistent at any earlier date, until the ed statement of law. See, further, Bliss v. things were done which made it good under Crosier, 159 Mass. 498, 34 N. E. 1075.

As the supreme court of Massachusetts trial is to be had, in view of the act of June says that taking possession under the mort

22, 1874 (18 Stat. at L, 193, chap. 396), makgage within four months would be valid as

ing applicable to the courts of the District the

sections of the original judiciary act from against the trustee in bankruptcy but for

which § 1014 was taken, and of the powers supposed peculiarities of the present bank- given to that court as a court of the United ruptcy law, and as Thompson v. Fairbanks, States by D. C. Code, § 61, and of the pro196 U. S. 517, 25 Sup. Ct. Rep. 306, 49 L. ed.

vision of § 1 of that Code (31 Stat. at L. 1189,

chap. 854), making applicable to the District 577, although distinguishable from the pres

all general acts of Congress "not locally in. ent case, decides that it is valid under the

applicable." + present bankruptcy law if good by the laws 4. The crime of bribing a public officer in vioof the state, it follows that the mortgagee lation of U. S. Rev. Stat. § 5451, when begun was entitled to keep his goods, and that the by mailing a letter containing the money in judgment against him was wrong.

one Federal district, and completed by the Judgment reversed.

receipt of the letter in another district, is triable in the latter district.

[No. 308.] (198 U. S. 1) JOHN A. BENSON, Appt.,

Argued February 20, 21, 1905. Decided V.

April 17, 1905. WILLIAM HENKEL, United States Marshal.

PPEAL from the Circuit Court of the A

United States for the Southern District riminal law-removal to another Federal of New York to review an order dismissing district for trial sufficiency of indict

sufficiency of indict- a writ of habeas corpus to inquire into a de ment--removal to District of Columbia-tention to await a warrant for the removal jurisdiction of offense begun in one Fed- of a person charged with an offense against eral District and completed in another. the United States to the Federal district

where the trial was to be had. Affirmed. 1. Objections to an indictment charging a vio

See same case below, 130 Fed. 486. lation of U. S. Rev. Stat. $ 5451 (U. S. Comp. Stat. 1901, p. 3680), in bribing two Federal officers to reveal the contents of certain Statement by Mr. Justice Brown: reports pertaining to an investigation then This was an appeal from an order dispending in the Land Department with respect missing a writ of habeas corpus, and re

in lands, are not available in proceedings before manding appellant to the custody of the a United States commissioner for the removal marshal to await the action of the district of the accused to another Federal district for judge. trial, where such objections raise the ques- On December 31, 1903, an indictment was tions whether the statute applied to reports found by the grand jury of the District of which had not yet been filed and might never Columbia, charging appellant with a violabe filed, or whether the words of the statute; tion of Rev. Stat. § 5451 (U. S. Comp. Stat. "which may at any time be pending, or which may by law be brought before him in his of. 1901, p. 3680), in bribing an officer of the ficial capacity," apply to the pendency of the United States to do an act in violation of investigation or to the pendency of an obliga- his official duty. Appellant was arrested in tion not to reveal the contents of a paper the southern district of New York, upon a then in the officer's possession, or whether the revealing of the contents of such reports was warrant issued by a United States commisforbidden by any lawful authority, there be sioner, which warrant was issued upon the ing no statute imposing such obligation ; but complaint of a special agent of the Interior such questions should be determined by the Department, to which a copy of the indictcourt in which the indictment was found.

ment was annexed. Appellant demanded 2. The District of Columbia is a district of the

an examination before the commissioner, in United States within the meaning of U. S. Rev. Stat. § 1014 (U. S. Comp. Stat. 1901, p. the course of which witnesses were examined 716), authorizing the removal for trial of on behalf of the government, and a certified a person charged with an offense against the copy of the indictment was admitted as eviUnited States to the Federal district where dence. No material testimony was offered the trial is to be had, although this section was taken from the judiciary act of 1789, on behalf of the defendant. The commiswhen the District of Columbia was not in sioner found there was probable cause, and existence. *

remanded defendant to the custody of the 3. The supreme court of the District of Colum- marshal to await a warrant for his removal.

bia must be deemed a "court of the United Immediately thereafter appellant applied States' within the meaning of U. S. Rev. for a writ of habeas corpus and certiorari. Stat. § 1014, authorizing the removal of a At the close of the hearing he was remanded person charged with an offense against the United States cognizable by a court of the to the custody of the marshal. 130 Fed. United States to the Federal district where the 486. *Ed. Note.-For cases in point, see vol. 14, #Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, $ 509.

Cent. Dig. Criminal Law, § 509.

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Messrs. Frank H. Platt, J. C. Camp- others, one of which is based upon the pay- . bell, and James Russell Soley for appellant. ment of money to another officer of the

Messrs. Francis J. Heney, Arthur B. United States, with like intent. Pugh, and Solicitor General Hoyt for ap- (1) Objection is made to the indictment pellee.

upon the ground that at the time of pay

ments to these officers the special agents' reMr. Justice Brown delivered the opinion port had not come into their possession or of the court:

knowledge, and there is no allegation to But three questions are raised by the ar- prove that it ever would; that they had no guments and briefs of counsel in this case: duty concerning it; that it was not shown

1. That the indictment charges no crime that they ever would have such duty; and against the United States.

that a charge of bribery cannot be based 2. That the District of Columbia is not a upon payment to an officer to induce him district of the United States within the to perform an act, as to which he has no meaning of Rev. Stat. § 1014 (U. S. Comp. duty, and may never have any duty. (2) Stat. 1901, p. 716), authorizing the removal That neither of these officers was forbidden of accused persons from one district to an- by any lawful duty to reveal to Benson the other.

contents of any report, even if they ever 3. That the crime was committed in Cali- should come into a position to do so. Upon fornia, and is only triable there.

these grounds it is insisted that the indictThe indictment is founded upon Rev. Stat. ment charges no offense against the United § 5451, which enacts that "every person who States under $ 5451. promises, offers, or gives


1. The extent to which a commissioner in money or other thing of value

to extradition may inquire into the validity of any officer of the United States, or to any an indictment put in evidence before him, as person acting for or on behalf of the United proof of probable cause of guilt, has never States in any official function, under or by been definitely settled, although we have

uthority of any department or office of the had frequent occasion to hold generally that government thereof,

with intent technical objections should not be considto influence his decision or action on any ered, and that the legal sufficiency of the inquestion, matter, cause, or proceeding dictment is only to be determined by the which may at any time be pending, or which court in which it is found. Ex parte Regmay by law be brought before him in his gel, 114 U. S. 642, 650, 29 L. ed. 250, 252, 5 official capacity,

with intent Sup. Ct. Rep. 1148; Roberts v. Reilly, 116 to induce him to do, or omit to do, U. S. 80, 96, 29 L. ed. 544, 6 Sup. Ct. Rep. any act in violation of his lawful duty, shall | 291; Horner v. United States, 143 U. S. 570, be punished as prescribed,” etc.

577, 36 L. ed. 266, 269, 12 Sup. Ct. Rep. The first three counts of the indictment 522; Greene v. Henkel, 183 U. S. 249, 260, charge, in substance, that the defendant was 46 L. ed. 177, 22 Sup. Ct. Rep. 218; Beavers engaged with one Hyde, at San Francisco, v. Henkel, 194 U. S. 73, 87, 48 L. ed. 882, California, in the business of unlawfully ob- 887, 24 Sup. Ct. Rep. 605. taining the public lands of the United Indeed, it is scarcely seemly for a comStates; that an investigation by special mitting magistrate to examine closely into agents of the Land Department of the un- the validity of an indictment found in a lawful transactions so charged was ordered Federal court of another district, and subby the Secretary of the Interior; and it be-ject to be passed upon by such court on decame the duty of such agents to make re- murrer or otherwise. Of course, this rule ports to the Secretary, the contents of which has its limitations. If the indictment were should not be revealed to any unofficial per a mere information, or obviously, upon inson; that at this time a department clerk spection, set forth no crime against the was acting as chief of the special service di- United States, or a wholly different crime vision of the General Land Office, whose from that alleged as the basis for proceed. duty it was to act upon all reports of such ings; or if such crime be charged to have special agents, and to preserve and keep for been committed in another district from the exclusive use of the Land Department that to which the extradition is sought,—the all such reports; and that pending such in- commissioner could not properly consider it vestigation the defendant unlawfully gave as ground for removal. In such cases reto such officer, in the District of Columbia, sort must be had to other evidence of probcertain sums of money, with the intent to able cause. induce him to do an act in violation of his While the principle laid down in some of lawful duty,—that is to say, to reveal to de- the earlier cases in this court, that an infendant the contents of the reports of such dictment upon a statute is ordinarily suffispecial agents relating to said investigation. cient if framed in the language of the statThese counts are representative of all the utes, has been somewhat qualified in later



cases, the rule still holds good that, where tody of its papers, a breach of which may

, the statute contains every element of the be treated as an act in violation of the lawoffense, and an indictment is offered in evi- ful duty of an official or clerk. United dence before the extradition commissioner States v. Macdaniel, 7 Pet. 1, 14, 8 L. ed. as proof of probable cause, it is sufficient if 587, 592. framed in the language of the statute with While we have no desire to minimize the ordinary averments of time and place, what we have already said with regard to and with such a description of the fraud, if the indictment setting out the substance of that be the basis of the indictment, as will the offense in language sufficient to apprise apprise an intelligent man of the nature of the accused of the nature of the charge the accusation, notwithstanding that such against him, still it must be borne in mind indictment may be open to motion to quash that the indictment is merely offered as or motion in arrest of judgment in the court proof of the charge originally contained in in which it was originally found. An ex- the complaint, and not as a complaint in ittradition commissioner is not presumed to self or foundation of the charge, which may be acquainted with the niceties of criminal be supported by oral testimony as well as pleading. His functions are practically the by the indictment. When the accused is same as those of an examining magistrate arraigned in the trial court he may take adin an ordinary criminal case, and, if the vantage of every insufficiency in the indictcomplaint upon which he acts, or the in- ment, since it is there the very foundation dictment offered in support thereof, con of the charge; but to hold it to be the duty tains the necessary elements of the offense, of the commissioner to determine the validit is sufficient, although a more critical ex-ity of every indictment as a pleading, when amination may show that the statute does offered only as evidence, is to put in his not completely cover the case. Pearce v. hands a dangerous power, which might be Texas, 155 U. S. 311, 39 L. ed. 164, 15 Sup. subject to serious abuse. If, for instance, Ct. Rep. 116; Davis's Case, 122 Mass. 324; he were moved by personal considerations, State ex rel. O'Malley v. O'Connor, 38 Minn. popular clamor, or insufficient knowledge of 243, 36 N. W. 462; Re Voorhees, 32 N. J. L. the law to discharge the accused by reason 141; Re Greenough, 31 Vt. 279, 288. of the insufficiency of the indictment, it

Applying these considerations to the pres- might turn out that the indictment was perent case, it appears plainly from the indict- fectly valid, and that the accused should ment that the accused was charged with the have been held. But the evil once done is, crime of bribery in paying to two officers or may be, irremediable, and the commiscertain sums of money to reveal to the peti- sioner, in setting himself up as a court of tioner the contents of certain reports, per- last resort to determine the validity of the taining to an investigation then pending indictment, is liable to do a gross injustice. with respect to certain frauds used in ob- 2. It is further urged in support of this taining public lands. The commissioner appeal that Rev. Stat. § 1014, does not au

, was not required to determine for himself thorize a removal to the District of Columwhether the statute applied to reports which bia, as it is not a district of the United had not yet been filed, and which might States within the meaning of the law; and never be filed, or whether the words of the the supreme court of the District is not a statute, "which may at any time be pend- court of the United States, as the words ing, or which may by law be brought before are used in that section. The pertinent him in his official capacity," apply to the words in the section are that "for any crime pendency of the investigation, or to the pen or offense against the United States, the ofdency of an obligation not to reveal the con- fender may,” by certain officers therein destents of a paper then in his possession. ignated, “be arrested and imprisoned or This was peculiarly a subject for examina- bailed, as the case may be, for trial before tion by the court in which the indictment such court of the United States as by law was found.

has cognizance of the offense; Like comment may be made with respect and, where any offender or witness is comto the second objection, that neither of these mitted in any district other than that where clerks was forbidden by any lawful author- the offense is to be tried, it shall be the duty ity to reveal the contents of such reports,

of the marshal to execute a warrant upon the ground that there was no statute for his removal to the district where the imposing such obligation. But it is clearly trial is to be had.” It is true that this secfor the court to say whether every duty to tion was taken from the judiciary act of be performed by an official must be desig- 1789, and at that time the District of Conated by statute, or whether it may not be lumbia was not in existence. But the same within the power of the head of a depart. remark may be made of the dozens of differment to prescribe regulations for the con- ent districts which have been formed since duct of the business of his office and the cus- this act was passed. The fact that the Dis


trict of Columbia was not created out of District of Columbia.” Criticism is made territory theretofore unorganized, but was of this act in that it only authorizes a resimply carved out of the district of Mary-moval from the District of Columbia to othland, is of no more importance than would er districts, but that it does not authorize be the creation of a new district, rendered the removal of persons arrested in some other necessary by an increase of population or judicial district to the District of Columbia. business, of which almost every Congress But we think that, if there were any doubt produces an example. Even if this were upon the subject still remaining, it was renot so, the re-enactment of this section of moved by the new Code of the District of the judiciary act in 1873 as § 1014 of the Columbia (31 Stat. at L. 1189, chap. Revised Statutes, clearly extended the word 854), taking effect January 1, 1902, "district” to the District of Columbia as wherein it is declared by § 61 that the suwell as to all other districts created since preme court of the District “shall possess the judiciary act. United States v. Bowen, the same powers, and exercise the same ju100 U. S. 508, 25 L. ed. 631; Arthur v. risdiction, as the circuit and district courts Dodge, 101 U. S. 36, 25 L. ed. 949; Cam- of the United States, and shall be deemed bria Iron Co. v. Ashburn, 118 U. S. 57, 30 a court of the United States;" and by ş one L. ed. 61, 6 Sup. Ct. Rep. 929.

(1) of the same Code, that "all general acts The anomaly in Rev. Stat. § 1014, as ap- of Congress not locally inapplicable in the plied to this District, consists in its limita- District of Columbia, and all acts of Contions to offenses "against the United gress by their terms applicable to the DisStates," since the courts of the District of trict of Columbia and to other places under Columbia have a local as well as a Federal the jurisdiction of the United States, in jurisdiction, and may punish for offenses, force at the date of the passage of this act, which, if committed within the limits of shall remain in force, except in so far as any other district of the United States, the same are inconsistent with, or are rewould be relegated to the state courts. Of placed by, some provision of this Code.” fenders against state laws escaping from

In conclusion of this branch of the case, the state where the crime is committed and it may be said that any construction of the found in another state are surrendered up-law which would preclude the extradition on the demand of the governor, by proceed to the District of Columbia of offenders who ings taken under a different statute. Rev. are arrested elsewhere would be attended by Stat. $$ 5278, 5279, U. S. Comp. Stat. 1901, such abhorrent consequences that nothing p. 3597. Certain cases are to be found, but the clearest language would authorize which hold that persons accused of crimes such construction. It certainly could never committed within the District of Columbia, have been intended that persons guilty of against its local laws, cannot be removed to offenses against the laws of the United this district for trial under § 1014. If this States should escape punishment simply by objection might have been a sound one un-crossing the Potomac river, nor, upon the der § 33 of the judiciary act [1 Stat. at L. other hand, that this District should become 91, chap. 20, U. S. Comp. Stat. 1901, p. 716], an Alsatia for the refuge of criminals from since the Revised Statutes local Offenses every part of the country. have also been treated as offenses against 3. Appellant makes further objection to the United States. The question, however, a removal to the District of Columbia upon does not arise in this case, since the indict the ground that the offense, if any, was comment charges an offense against the United mitted in California, and that under the States in violation of § 5451 (U. S. Comp. Constitution he is entitled to a trial in that Stat. 1901, p. 3680), respecting the bribery jurisdiction. of public officers.

The objection does not appear upon the It is unnecessary to decide whether the face of the indictment, which charges the power to remove offenders found in other offense to have been committed within this districts to this district is affected by the District, but from the testimony of one of act of February 21, 1871 (16 Stat. at L. 426, those clerks it seems that the money was rechap. 62) providing that “the Constitutionceived by him in certain letters mailed to and all the laws of the United States, which him from San Francisco and received in are not locally inapplicable, shall have the Washington. Without intimating whether same force and effect within the said Dis- the question of jurisdiction can be raised in trict of Columbia as elsewhere within the this way, the case clearly falls within that United States,” since by § 2 of the act of of Re Palliser (Palliser v. United States) June 22, 1874 (18 Stat. at L. 193, chap. 136 U. S. 257, 34 L. ed. 514, 10 Sup. Ct. Rep. 396) the provisions of the 33d section of the 1034, in which it was held that, where an judiciary act of 1789, from which Rev. offense is begun by the mailing of a letter Stat. § 1014, is taken, "shall apply to in one district, and completed by the recourts created by act of Congress in the 'ceipt of a letter in another district, the of

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