cester's Dictionary] 'also a collective name for domestic quadrupeds generally, including not only the bovine tribe, but horses, asses, mules, sheep, goats, and swine.' In its limited sense, it is used to designate the different varieties of horned animals, but it is also frequently used with a broader signification as embracing animals in general which serve as food for man. In England, even in a criminal case, where there is a greater strictness of construction than in a civil controversy, pigs were held to be inIcluded within the words 'any cattle.'' pass was prayed for in the equity suit, yet and that no evidence of substantial damage The most recent definitions of the diction- ing. thataries are as follows: Webster's New International Dictionary defines "cattle" thus: "Collectively, live animals held as property or raised for some use, now usually confined to quadrupeds of the bovine family, but sometimes including all domestic quadrupeds, as sheep, goats, horses, mules, asses, swine," etc. The Standard Dictionary defines the word as meaning: "Domesticated bovine animals, as oxen, cows, bulls, and calves; also, though seldom now as compared with former times, any live stock, kept for use or profit, as horses, camels, sheep, goats, swine" etc. Thus, although the word "sheep" is not in the section, and although in present day usage the word "cattle" would rarely be used with a signification sufficiently broad to include them, nevertheless, since the pasturing of sheep is plainly within the mischief at which this section aimed, since the word "cattle," which is used, may be given, say all the authorities, a meaning comprehensive enough to include them, and since the courts and the Department of Justice for almost 50 years have interpreted the section as applicable to "sheep," we accept this as the intended meaning of the section, for, had it been otherwise, Congress, we must assume, would long since have corrected it. *170 [4] *It is argued that the rule that penal statutes must be strictly construed forbids such latitude of construction. But this is sufficiently and satisfactorily answered by repeated decisions of this court. "The admitted rule that penal statutes are to be strictly construed, is not violated by allowing their words to have full meaning, or even the more extended of two meanings, where such construction best harmonizes with the context, and most fully promotes the policy and objects of the Legislature." United States v. Hartwell, 6 Wall. 385, 18 L. Ed. 830; United States v. Freeman, 3 How. 556, 565, 11 L. Ed. 724; United States v. Lacher, 134 U. S. 624, 628, 10 Sup. Ct. 625, 33 L. Ed. 1080. "A judgment is not conclusive of any question which, from the nature of the case or the form of action, could not have been adjudicated in the case in which it was rendered.” It results that the decree in No. 212 and the judgment in No. 285 must both be Affirmed. (252 U. S. 171) GAYON v. McCARTHY, U. S. Marshal, et al. (Argued Jan. 6, 1920. Decided March 1, 1920.) No. 540. 1. CRIMINAL LAW 242(7) - PRIMA FACIE CASE FOR REMOVAL OF ACCUSED TO DISTRICT WHERE INDICTED ESTABLISHED. In a proceeding for the removal of a person indicted in another state to such state, the introduction of the indictment and defendant's admission that he was the person named therein made a prima facie case, in the absence of other evidence. 2. CRIMINAL LAW 242(7)—EVIDENCE SUF FICIENT TO WARRANT REMOVAL TO STATE IN In a proceeding to remove a person to another state in which he was indicted for conspiring to retain a citizen to enlist in the Mexican revolutionary forces, evidence held to tend to show a violation of Cr. Code, § 10, as amended by Act May 7, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10174), and to show probable cause for believing defendant guilty of conspiring to compass such violation. 3. CRIMINAL LAW 113-DISTRIct Court of DISTRICT WHERE ACTS IN PURSUANCE OF CON- Where, by communication and concerted action between defendant in New York and other parties in Texas, a United States citizen was induced to go from New York to the Mexican border to join the insurgent forces, and one of the parties conferred with him and acted in promotion of the conspiracy in the Southern district of Texas, the court of that district had jurisdiction of an indictment for the conspiracy. 4. NEUTRALITY LAWS 3-How ONE MAY BE "RETAINED" TO ENTER SERVICE OF FOREIGN PEOPLE STATED. [5] It is also contended far from confidently, that the recovery of nominal damages Cr. Code, § 10, as amended by Act May 7, in the equity suit is a bar to the recovery of 1917 (Comp. St. 1918, Comp. St. Ann. Supp. the penalty in the case at law. While the 1919, § 10174), as to hiring or retaining anamount of the statutory penalty for the tres-other to go outside the United States with inFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (40 Sup.Ct.) tent to enlist in the service of a foreign people, | Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614; uses "retain" as an alternative to "hire,” and Brown v. Elliott and Moore v. Elliott, 225 U. as meaning something different from the usual S. 392, 32 Sup. Ct. 812, 56 L. Ed. 1136; Henry employment with payment in money; and one v. Henkel, 235 U. S. 219, 35 Sup. Ct. 54, 59 L. may be retained, in the sense of engaged, to Ed. 203. render a service by a verbal promise, and by a prospect for advancement or payment in the future. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Retain.] Appeal from and in Error to the District Court of the United States for the Southern District of New York. Habeas corpus by Roberto Gayon against Thomas D. McCarthy, United States Marshal for the Southern District of New York, and another. The writ was discharged, and petitioner appeals and brings error. Affirmed. Mr. Wm. S. Bennet, of New York City, for appellant and plaintiff in error. Mr. Assistant Attorney General Stewart, for appellee and defendant in error. Mr. Justice CLARKE delivered the opinion of the Court. The appellant, Gayon, was indicted in the Southern district of Texas for conspiring (section 37 of the Criminal Code [Comp. St. § 10201]) with one Naranjo, of San Antonio, Texas, and with one Mendoza, of Laredo, Texas, about January 1, 1919, to hire and retain Foster Averitt, a citizen of the United States, to go to Mexico, there to enlist in military forces organized in the interest of Felix Diaz, then in revolt against the government of Mexico, with which the United *172 *States was at peace, in violation of section 10 of the Criminal Code, as amended May 7, 1917, 40 Stat. 39, chapter 11 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10174). Gayon was arrested in New York, and, after a full hearing before a commissioner of the United States, was held subject to the order of the District Court for his removal to Texas. Thereupon, by petition for writs of habeas corpus and certiorari, the case was removed to the District Court for the Southern District of New York, and, upon a hearing on a transcript of the evidence before the commissioner, that court discharged the writ of habeas corpus and entered an order that a warrant issue for the removal of the appellant to Texas. An appeal brings this order here for review. The principles and practice applicable to this case are abundantly settled. Greene v. Henkel, 183 U. S. 249, 261, 22 Sup. Ct. 218, 46 L. Ed. 177; Beavers v. Haubert, 198 U. S. 77, 24 Sup. Ct. 605, 48 L. Ed. 882; Hyde v. Shine, 199 U. S. 62, 84, 25 Sup. Ct. 760, 50 L. Ed. 90; Tinsley v. Treat, 205 U. S. 20, 27 Sup. Ct. 430, 51 L. Ed. 689; Haas v. Henkel, 216 U. S. 462, 475, 30 Sup. Ct. 249, 54 L. Ed. 569, 17 Ann. Cas. 1112; Price v. Henkel, 216 U. S. 488, 490, 30 Sup. Ct. 257, 54 L. Ed. 581; Hyde v. United States, 225 U. S. 347, 32 Sup. Of many errors assigned only two are argued, viz: That the court erred in holding: (1) That the acts committed by the appellant "of which there was any evidence before the commissioner" constituted a crime under section 10 of the Penal Code, and (2) that the evidence before the commissioner showed probable cause for believing the defendant guilty of the crime charged in the indictment. By these assignments of error the correct rule of decision is recognized, that if there was before the commissioner or District Court evidence showing probable cause for believing the defendant guilty of having conspired with Naranjo or Mendoza, when either was in the Southern district of Texas, to hire or retain Averitt to go to Mexico to enlist in the insurgent forces operating under General Diaz against the Mexican government, the order of the District Court must be affirmed. #173 ried to the District Court, may be summar*The evidence before the commissioner, car ized as follows: ment and, with the admission by Gayon that [1] The government introduced the indicthe was the person named therein, rested. This established a prima facie case in the absence of other evidence. Tinsley v. Treat, 205 U. S. 20, 31, 27 Sup. Ct. 430, 51 L. Ed. 689, and cases cited. [2] Thereupon the testimony of the accused and of one Del Villar was introduced by appellant, and that of Averitt by the government, which we condense into narrative form: For five years before the arrest, Del Villar, a political exile from Mexico, had maintained offices in New York, from which he had conducted a systematic propaganda in the interest of Felix Diaz and against the Mexican government. The accused, Gayon, is a Mexican citizen, and during several administrations prior to that of Carranza had served as consul for the Mexican government at Roma, Texas, and at other places within and without the United States. For about two years he had been secretary to Del Villar and for some time prior to his arrest was in the joint service and pay of Del Villar and General Aurelio Blanquet, the latter then in Mexico serving with the forces of Diaz. Naranjo was editor and publisher of a newspaper at San Antonio, Texas, called "Revista Mexicana" (Mexican Review), which was opposed to the established Mexican government and favorable to the revolutionists operating in the interest of Diaz. On December 12, 1918, Gayon wrote from New York to Naranjo at San Antonio to secure an advertisement in the Review for "my work 'El General Blanquet,'" saying, "There *174 are some reasons that you may know in the [ Gayon introduced him as "undertaking a trip next few days why I want a big circulation to Mexico on special mission to General Felix of the book," asking if he might send some Diaz and Aurelio Blanquet," and requested that he "supply him the necessary informacopies to be sold at the newspaper *office, and tion to enable him to make his trip as quickly concluding, "I will await your letters hoping as possible." to give you good news in my next letter." On December 23, 1918, Gayon wrote Naranjo, addressing him as "My dear Friend," and saying that he had received his letter of the 18th instant. In this letter a discussion of the sale of his book "El General Blanquet" is followed by comment on the activities of other persons, in which he discourages new projects and urges joining "with the National Union Committees,” which he states had already passed the embryonic state and now constitute a reality. He concludes: "God grant us, now that we are on the threshold of success, we may leave aside our obstinate custom of projecting, and go ahead to produce results exclusively." On January 14, and again on January 21, 1919, he addressed Naranjo as "My dear Friend" and discussed further advertising and circulating of his book. This correspondence makes it clear enough that Gayon, although in New York, in December, 1918, and January, 1919, was in close as sociation with Naranjo, and that the two were actively engaged in promoting opposition to the established Mexican government. On January 5, 1919, Foster Averitt, an American citizen, whose home was in Texas, called at the office of Gayon, and what passed between them is derived from the testimony of the two, as follows: Averitt had recently resigned from the United States Naval Academy at Annapolis and, being without employment, says that he called at the office of Gayon, for the purpose of securing, if possible, a position in Mexico or Central America as an engineer. He was wearing his uniform as midshipman of the United States Navy and he first showed Gayon some official papers, which the latter did not read, and then said that he was of the United States Navy, and that he must go at once to Mexico to see Generals Diaz and *175 Blanquet personally. He did not give any reason for desiring to see these men but asked for letters of introduction to them, which Gayon refused until he could confer with Del Villar. Averitt returned the next day and, after discussing with Gayon conditions in Mexico, the location of the several armed forces near the border, and whether he should go by sea to Vera Cruz or overland, he again left for the day. On returning the next day he received from Gayon two letters, one addressed to Naranjo, at San Antonio, and one to "General Aurelio Blanquet, General Headquarters, Mexico." Gayon had no knowledge of or acquaintance with Averitt before his first call at his office and he did not present any letters of introduction, but in the letter to Naranjo The letter which he gave to Averitt addressed to General Blanquet opens with this paragraph: "The bearer, Mr. Foster Averitt, Marine about the reasons for his trip and of the work Guard of the United States, will inform you we are undertaking here. I kindly request from you, after meeting Mr. Foster [sic], to be good enough to introduce him to General Felix Diaz, as he wants to take up some matters with both of you." The remainder of the letter explains how he had given publicity to "the recent successful arrival" of the general in Mexico and the motives inspiring the movement of reorganization under the leadership of General Diaz. It predicts early recognition by our government of the belligerency of the Diaz insurgents and urges the general to write as often as possible to enable "us to continue our campaign of propaganda.” *176 Supplied with these letters, Averitt straightway went to San Antonio and presented his letter to Naranjo, who, *after some conferences with him, gave him a letter to General Santiago Mendoza, at Laredo, on the border. This letter was presented to Mendoza and through him arrangements were made for Averitt's crossing into Mexico with two or three others, but they were arrested by customs guards and the proceedings we are considering followed. In the interviews in New York there was suggestion of payment of expenses and a commission for Averitt, but Gayon, saying that the furnishing of either would violate the neutrality laws of the United States, told him there would be no difficulty in his getting a commission from General Blanquet on his arrival in Mexico and the last thing he said to him when leaving was "that he expected that he should be at least a colonel when he saw him again down there." He told him it might be possible to have his expenses made up to him when he arrived in Mexico, and, as a matter of fact, he received $15 from General Mendoza at Laredo. The statute which Gayon is charged with violating provides: (40 Sup.Ct.) promised Averitt that upon his arrival in This discussion of the record makes it Mexico he would be given a commission in sufficiently clear that there was substantial the army of General Blanquet; that at the evidence before the commissioner and the same time he delivered to Averitt a letter ad- court tending to show that section 10 of the dressed to General Blanquet, who was then Criminal Code had been violated and that in Mexico in command of revolutionary forc- there were was probable cause for believing es; that Averitt visited and held conferences the appellant guilty of conspiring with Narwith Naranjo, who gave him a letter to Men-anjo and Mendoza to compass that violation, doza, at Laredo, in the Southern district of as charged in the indictment, and therefore the order of the District Court must be Affirmed. *177 *Texas; and that Averitt, under instructions received from Naranjo, called upon and conferred with Mendoza at Laredo and with him arranged to enter Mexico with others, with intent to join the forces of Diaz under General Blanquet. (251 U. S. 524) BATES v. DRESSER. DRESSER v. BATES. (Argued Jan. 19 and 20, 1920. Decided March 1, 1920.) Nos. 155-158. NOT GUILTY OF ACTIONABLE NEGLIGENCE IN Where the bookkeeper of a national bank stole a great part of its assets, concealing his thefts by overcharging depositors and thus reducing the apparent liabilities of the bank, the charged them with liability for the losses by acdirectors held not guilty of such negligence as cepting the cashier's statements of liabilities and failing to inspect the depositors' ledger, although a by-law required the appointment of a committee every six months to count the cash and compare its assets and liabilities with the balances on the general ledger. While the narration of what took place between Gayon and Averitt does not show a hiring of the latter in the ordinary sense of the word, yet, when taken with the conduct of Averitt in going immediately to Texas, and in attempting to cross into Mexico, plainly, it tends to show that Gayon retained Averitt in the sense of engaging him to go to Mexico, 1. BANKS AND BANKING 253-DIRECTORS that he was induced to enter into that engagement by the promise that he would be given a commission in the forces of Diaz when he arrived there and that he would probably be reimbursed for his expenses. [3] There was also evidence tending to show that by communication and concerted action between Gayon, Naranjo and Mendoza, Averitt was induced to go from New York to the border and would have succeeded in reaching Mexico and joining the insurgent forces but for the vigilance of the United States officers who arrested him. The evidence also is that Mendoza conferred with Averitt and acted in promotion of the conspiracy when in the Southern district of Texas, thus establishing the jurisdiction of the court to which the indictment was returned, under Hyde and Schneider v. United States, 225 U. S. 347, 32 Sup. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614, and Brown v. Elliott and Moore v. Elliott, 225 U. S. 392, 32 Sup. Ct. 812, 56 L. Ed. 1136. 2. BANKS AND BANKING 253-PRESIDENT Where the bookkeeper of a national bank stole a great part of its assets concealing his thefts by overcharging depositors, the president of the bank held guilty of negligence making him liable for the bank's losses where he had knowledge of unexplained shortages, the disappearance of a package left for safe-keeping, the seeming rapid decline in deposits, and suspicious circumstances regarding the bookkeeper's con duct. AMOUNT [4] The word "retain" is used in the statute as an alternative to "hire" and means something different from the usual employment with payment in money. One may be retained, in the sense of engaged, to render 3. BANKS AND BANKING 254-INTEREST ON a service as effectively by a verbal as by a written promise, by a prospect for advancement or payment in the future as by the immediate payment of cash. As stated long ago by a noted Attorney General, in an opinion dealing with this statute: *178 RECOVERABLE FROM OFFICER FOR NEGLIGENCE IS A MATTER OF DISCRETION. Whether interest should be charged on the amount recovered from the president of a national bank for negligence is a question of dis cretion, and not of right. 4. INTEREST 53-ALLOWED, ON RECOVERY FOR NEGLIGENCE, FROM DATE OF DECREE TO DATE OF RECEIVER'S APPEAL. *"A party may be retained by verbal promise or invitation for a declared or known purpose. If such a statute could be evaded or set at In an action against the president of a naught by elaborate contrivances to engage national bank for negligence, where a judgment without enlisting, to retain without hire, to in favor of plaintiff, the receiver of the bank, invite without recruiting, * it would be was reduced by the Circuit Court of Appeals, idle to pass acts of Congress for the punishment and the receiver appealed, interest is properly of this or any other offenses." Opinions of the allowed, to the extent that the decree of the Attorney General, vol. 7, pp. 367, 378, 379. District Court was affirmed, to the time the * For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes receiver interposed a delay by taking his ap-reported that the daily balance book was peal. very much behind, that it was impossible to Mr. Justice McKenna and Mr. Justice Pitney dissenting. Appeals from the United States Circuit Court of Appeals for the First Circuit. *527 *prove the deposits, and that a competent bookkeeper should be employed upon the work immediately. Coleman kept the deposit ledger and this was the work that fell into Suit by John L. Bates, receiver of the Na- his hands. There was no cage in the bank, tional City Bank of Cambridge, Mass., against and in 1904 and 1905 there were some small Sumner Dresser, administrator of Edwin shortages in the accounts of three successive Dresser, deceased, and others. From a de-tellers that were not accounted for, and the cree of the Circuit Court of Appeals (250 last of them, Cutting, was asked by Dresser Fed. 525, 162 C. C. A. 541), reversing a decree of the District Court (229 Fed. 772), and dismissing the bill as against some of the defendants, the receiver and certain defendants appeal. Modified and affirmed. to resign on that ground. Before doing so he told Dresser that someone had taken the money and that if he might be allowed to stay he would set a trap and catch the man, but Dresser did not care to do that and thought that there was nothing wrong. From Cutting's resignation on October 7, 1905, Coleman acted as paying and receiving teller, in addition to his other duty, until November, 1907. During this time there were no shortages disclosed in the teller's accounts. In May, 1906, Coleman took $2,000 cash from the vaults of the bank, but restored it the next morning. In November of the same year he began the thefts that come into question here. Perhaps in the beginning he took the money directly. But as he ceased to Mr. Justice HOLMES delivered the opinion have charge of the cash in November, 1907, of the Court. This is a bill in equity brought by the receiver of a national bank to charge its former president and directors with the loss of a great part of its assets through the thefts of an employé of the bank while they were in power. The case was sent to a master who found for the defendants; but the District Court entered a decree against all of them. 229 Fed. 772. The Circuit Court of Appeals reversed this decree, dismissed the bill as against all except the administrator of Edwin Dresser, the president, cut down the amount with which he was charged and refused to add interest from the date of the decree of the District Court. Dresser v. Bates, 250 Fed. 525, 162 C. C. A. 541. Dresser's administrator and the receiver both appeal, the latter contending that the decree of the District Court should be affirmed with interest and costs. he invented another way. Having a small account at the bank, he would draw checks for the amount he wanted, exchange checks with a Boston broker, get cash for the broker's check, and, when his own check came to the bank through the clearing house, would abstract it from the envelope, enter the others on his book and conceal the difference by a charge to some other account or a false addition in the column of drafts or deposits in the depositors' ledger. He handed to the cashier only the slip from the clearing house that showed the totals. The cashier paid whatever appeared to be due and thus Coleman's checks were honored. So far as Coleman thought it necessary, in view of the absolute trust in him on the part of all concerned, he took care that his balances should agree with those in the cashier's book. *528 *By May 1, 1907, Coleman had abstracted The bank was a little bank at Cambridge $17,000, concealing the fact by false additions with a capital of $100,000 and average de- in the column of total checks, and false posits of somewhere about $300,000. It had balances in the deposit ledger. Then for the a cashier, a bookkeeper, a teller and a mes- moment a safer concealment was effected by senger. Before and during the time of the charging the whole to Dresser's account. losses Dresser was its president and execu- Coleman adopted this method when a bank tive officer, a large stockholder, with an examiner was expected. Of course when the inactive deposit of from $35,000 to $50,000. fraud was disguised by overcharging a deFrom July, 1903, to the end, Frank L. Earl positor it could not be discovered except by was cashier. Coleman, who made the trou- calling in the passbooks, or taking all the ble, entered the service of the bank as mes- deposit slips and comparing them with the senger in September, 1903. In January, 1904, depositors' ledger in detail. By November, he was promoted to be bookkeeper, being then 1907, the amount taken by Coleman was not quite eighteen but having studied book-$30,100, and the charge on Dresser's account keeping. In the previous August an auditor employed on the retirement of a cashier had To $264,088.02. was $20,000. In 1908 the sum was raised from $33,000 to $49,671. In 1909 Coleman's activity began to increase. In January he |