brought into bankruptcy, but a number of the claims put in against the individual estate are these partnership debts, and two or three of the creditors assenting to the discharge are only creditors of the partnership, and have no individual claim against the bankrupt. In the schedules the bankrupt estimates his interest in the real and personal estate of the late firm of W. L. & G. W. Johnston, after the settlement of the debts of the partnership, at about $8,000. We cannot, therefore, assume that there were no assets of the firm to be administered, and that the case will fall within that class of cases where, in the absence of all partnership assets, the discharge of the bankrupt on his personal petition operates upon his partnership as well as his individual debts. It only discharges his individual obligations. See In re Little, 1 N. B. R. 341; In re Bidwell, 2 N. B. R. 229; Hudgins v. Lane, 11 N. B. R. 462; Crompton v. Conkling, 15 N. B. R. 417; In re Noonan, 10 N. B. R. 331.

It was, doubtless, lawful for the partnership creditors to prove their claims against the individual estate of one of the partners, for they would be entitled to come in and participate in any dividend of the assets, if any should happen to remain after the payment of the individual debts in full. But consenting to the discharge is quite a different matter. The law clearly contemplates that only those creditors should be allowed to assent whose claims will be discharged by the discharge of the bankrupt.

Eliminating from the proofs the claim of Elias A. Wilkinson, trustee, for $47,999.26, on which the bankrupt is not liable as principal debtor, and allowing the other proofs to stand, their aggregate amount is $22,116.18-one-third of which is $7,372.06. Deducting from the list of creditors assenting to the discharge those whose claims are against the partnership alone, it is clear that one-third in value have not assented to the discharge, and the same is therefore refused.

UNITED STATES v. OWENS.

(District Court, E. D. Missouri. July 3, 1883.)

INDICTMENT-SENDING LETTER THROUGH THE MAIL TO CREDITOR WITH INTENT TO DEFRAUD-REV. ST. § 5480.

An attempt to defraud a creditor by inclosing with a letter to him worthless slips of paper in place of money, stated by such letter to be inclosed therewith, and sending such letter and inclosed slips to such creditor through the mail, is not an indictable offense under section 5480 of the Revised Statutes.

Motion to Quash Indictment on the ground that it does not set out any offense under the statute.

1 Reported by B. F. Rex, Esq., of the St. Louis bar,

The indictment charges that the defendant, being indebted to the Bowman Distilling Company,

"Devised a certain scheme and artifice to defraud by means of certain slips of paper, to be inclosed in a certain letter with a certain coin known as a halfdollar, which said slips of paper were then and there to be inclosed as aforesaid in the place of a certain sum of money, to-wit, the sum of $162; and which said scheme and artifice was then and there intended by the said Owens to be effected by opening correspondence and communication with the said corporation by means of the post-office department of the United States,—did, in and for executing and attempting to execute the said scheme and artifice, then and there place in a certain post-office of the United States, to-wit, the postoffice at Alton, * * * a certain letter, then and there having inclosed therein the said slips of paper and the said coin, and then and there addressed to the said Bowman Distilling Company."

The letter is set forth in the opinion.

The section of the statute alleged to have been violated is as follows:

"Sec. 5480. If any person, having devised or intending to devise any scheme or artifice to defraud or be effected by either opening or intending to open correspondence or communication with any other person ** * * by means of the post-office establishment of the United States, * * *shall, in and for executing such scheme or artifice, or attempting so to do, place any letter * * * in any post-office of the United States, * * * such person so misusing the post-office establishment shall be published by a fine

William H. Bliss, for the United States.

Franklin Ferriss, for defendant.

* * *."

TREAT, J. An indictment was found against defendant under section 5480, Rev. St. A motion to quash has been interposed. The questions presented call for an interpretation of said section, and the sufficiency of the averments made. Substantially, the indictment charges that the defendant, being a debtor of the Bowman Distilling Company for $162.50, remitted to the latter, through the mail, a 50-cent coin, with certain slips of paper, (their character and value not stated,) the letter inclosing the same being as follows:

"ALTON, MO., February 21, 1883. "Bowman Distilling Company-GENTS: Please inclosed find $162.50, being the whole amount due you from us, for which you will please place to our credit and forward the receipt for the same, and oblige yours, truly, "A. B. OWENS & Co."

It is averred that defendant, within the meaning of said section, opened a correspondence with said creditor to defraud him by the means aforesaid. It is obvious, so far as the indictment discloses, that the fraudulent scheme could not be effective. The debt would not be discharged by the receipt of worthless slips of paper, nor even by the giving of a receipt obtained by fraud. If the design was to obtain credit for $162.50 and a receipt through the carelessness of the creditor, does the transaction fall within said section? No one was defrauded, and no one could possibly be. There may have been

an attempt to cheat, cognizable, possibly, by some state statutes or a common law. Were the postal laws designed to draw within federal jurisdiction each and every individual transaction between debtor and creditor, when postal correspondence ensues, with respect thereto, irrespective of the possibilities of effecting a fraud, if any were designed? Remittances may be made which may or may not be received in discharge of a debt, and may or may not be of the value stated. If the creditor chooses to receive such remittances-may be drafts, etc.-in payment of his demand, and it should turn out, after litigation, that such remittances were valueless, and forwarded with the knowledge of the debtor that they were of no value, is resort to be had to the postal laws for the ascertainment of such facts and the punishment of the offender? If such is the scope of the section named, it may draw within federal cognizance nearly all the commercial correspondence of the country as to disputed demands and the value of remittances.

It appears to the court that the act was designed to strike at common schemes of fraud, whereby, through the post-office, circulars, etc., are distributed, generally to entrap and defraud the unwary, and not the supervision of commercial correspondence solely between a debtor and creditor. This seems to be the true interpretation from the language in the last clause in the section, viz.:

"The indictment, information, or complaint may severally charge offenses to the number of three, when committed within the same six calendar months; but the court thereupon shall give a single sentence, and shall apportion the punishment especially to the degree in which the abuse of the post-office establishment enters as an instrument into such fraudulent scheme and device."

The court, on this motion, looks solely to the charge as made in the indictment, without holding that no case of private correspondence between debtor and creditor can, under any circumstances, fall within the statute. It was hinted in argument that certain devices. were resorted to, in connection with a registered letter, for the purpose of inducing the creditor to believe that the remittance had been tampered with and abstracted while in the post-office, and that at the trial facts to that effect would appear. If such are the facts the indictment does not disclose them. It must suffice that averments made do not bring the defendant within the statute. Whether the fact dehors the record may justify a new indictment, it is for the pleader to determine. The motion is sustained.

UNITED STATES v. EARL.

(Circuit Court, D. Oregon. June 26, 1883.)

1. INDIAN-WHEN UNDER CHARGE OF AN AGENT.

When a tribe of Indians is placed under the charge of an Indian agent by treaty or otherwise, each member of such tribe is under the charge of such agent, within the purview of section 3129 of the Revised Statutes, and no member thereof can dissolve his tribal relation or escape from such charge by absenting himself from such reservation, or otherwise, without the consent of the United States.

2. SAME.

An Indian boy in Oregon, who left the locality of his tribe and lived with a white family until his tribe had entered into treaty relations with the United States and gone upon a reservation in pursuance of such treaty, and until he was 23 years of age, and then went to live upon such reservation as a member of his tribe, could not thereafter, by simply absenting himself from the reservation, dissolve his tribal relation or cease to be under the charge of the agent of such reservation.

3. INTERCOURSE WITH INDIANS.

It is the duty of congress to regulate the intercourse with the Indians, and to that end they may provide for punishing the giving of spirituous liquors to them on or off a reservation within or without a state.

Motion for New Trial. Information for disposing of spirituous liquor to an Indian.

On April 28, 1883, the district attorney, by the leave of the court, filed an information in the district court, charging the defendant with the disposing of spirituous liquor in this district to Jake Thomas, an Indian under charge of an Indian agent of the United States, on March 1, 1883, contrary to section 2139 of the Revised Statutes, which provides that every person who disposes of spirituous liquor to any Indian "under the charge of any Indian superintendent or agent" shall be punished as therein provided. The defendant pleaded not guilty to the information, and the cause was thereupon removed to the circuit court and there tried before the, district judge with a jury. On May 17th the jury, under the instruction of the court, found the defendant guilty as charged in the information. The defendant moved for a new trial on the ground of error in the instruction to the jury, and the motion was heard on June 26th before Mr. Justice FIELD and the district judge.

James F. Watson, for the United States.

Charles B. Bellinger, for defendant.

12

DEADY, J. On June 25, 1855, a treaty was negotiated with "the confederated tribes and bands of Indians residing in middle Oregon," at Wasco, Oregon, and ratified by the senate, March 8, 1869. St. 963. Among these tribes were the Wascoes, belonging to the country about the Dalles of the Columbia. The treaty provided for the cession to the United States of the country belonging to these tribes, and the establishment of a reservation therein for their "exclusive use," commonly called "the Warm Spring reservation," to which they were to remove within a year from the ratification of the treaty.

On the trial it was admitted that the defendant kept a saloon at the Dalles, about 30 miles from the agency, and there disposed of whisky to the Indian, Jake Thomas, as alleged in the information. It also appeared from the testimony of said Indian that his parents belonged to the Wasco tribe of Indians, and that he was born near the Dalles about the year 1845, and that about 1855 he came down to the Wallamet valley with his parents, where he lived with them near Oregon City, at the residence of Col. Jennings, a well-known citizen. Thomas' father carried an express for the "government" in the Cayuse war of 1847. Gen. Palmer, when superintendent of Indian affairs, transferred the father to the "Grand Round reservation," as Thomas says, in 1861; but as Palmer was not superintendent after the early part of 1857, and the Indian is more likely to remember the name of the superintendent than the date of the transaction, such transfer must have taken place during Palmer's superintendency, and probably in 1856 or 1857, as the Grand Round reservation was not formally established until the latter year. 11 St. 183; Ex. Order, June 30, 1857. In about a year he returned to Col. Jennings' place and died; but Thomas remained with the latter, except a a short interval spent in running on a steam-boat to the Dalles in 1862, until 1868, when he went to live upon the Warm Spring reservation, where he remained about four years-part of the time engaged in teaching. In the winter of 1872-3 he served three months with a company of Indian scouts from the reservation in the Modoc war. Then he was in the Wallamet valley, knocking about on steam-boats and in tavern kitchens for two years, and the two following years he spent upon the reservation. Since then he has lived about the Dalles until last fall, when he went upon the reservation, where he has a sister, but no house, and remained there until this spring. During the latter period he bought and sold a piece of land. He has a family, that now reside about five miles from the Dalles. He also has a band of horses upon the reservation, and is allowed the privileges of the same as a Wasco Indian. When on the reservation he does not appear to have drawn any annuity or supplies, but says he could have done so if he wanted to; and that the reason he did not draw any supplies the last time he was there, was, "the treaty had run out." The court instructed the jury that the disposition of the spirituous liquor to the Indian being admitted, the only other question in the case is, "Was he an Indian under the charge of an agent?" and upon this point he said:

"If you believe the testimony of Thomas himself, then you ought to find the defendant guilty, because upon that testimony he is, and was at the date of the disposition to him of the liquor in question, an Indian under the charge of the Indian agent at the Warm Spring reservation."

To this instruction there was an exception, and counsel for the defendant now contend that it was erroneous, and therefore the motion for a new trial ought to be allowed.