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tion for the payment of the debts of the original district went over as property and persons subject to the authority of the constituted agents of the new districts. The liability which attached to them when in the old district equitably followed them in the changed form of their corporate existence. These principles have been recognized and accepted, not only in Iowa, but elsewhere. Stevenson v. Dist. Tp. of Summit, 35 Iowa, 462; Dist. Tp. of Knoxville v. Ind. Dists. of Liberty et al., 36 Iowa, 220; Knoxville Nat. Bk. v. Independent Dist. of Washington, 40 Iowa, 612; Kennedy v. Ind. School Dist. of Derby Grange, 48 Iowa, 189; Dist. Tp. of White Oak v. Dist. Tp. of Oskaloosa, 52 Iowa, 73, 2 N. W. 965 ; Dist. Tp. of Clay v. Ind. Dist. of Buchannan, 63 Iowa, 188, 18 N. W. 859 ; Fairfield v. Rural Independent Dists. (C. C.)111 Fed. 108; Morgan v. Beloit, 7 Wall. 613, 19 L. Ed. 203; Broughton v. Pensacola, 93 U. S. 266, 23 L. Ed. 896; Mount Pleasant v. Beckwith, 100 U. S. 514, 25 L. Ed. 699; Shapleigh v. San Angelo, 167 U. S. 646, 17 Sup. Ct. 957, 42 L. Ed. 310. There was no privity of contract between complainant or any holder of the bonds of the old district and the new constituent districts. See cases, supra. At best, the law provided for an assumption of those debts by the new districts. Such an assumption by a third party of the debt of another does not ordinarily create a legal liability which the creditor, not a party to the agreement of assumption, can assert against him in an action at law. As his right does not rest on privity of contract, but is purely equitable, he is required to resort to equity to enforce it. Whatever may be the decisions of state courts (and we admit they are contradictory on this question), the rule of the national courts is clear and uniform. Keller v. Ashford, 133 U. S. 610, 622, 10 Sup. Ct. 494, 33 L. Ed. 667; Willard v. Wood, 135 U. S. 309, 314, 10 Sup. Ct. 831, 34 L. Ed. 210; Union Mutual Life Ins. Co. v. Hanford, 143 U. S. 187, 190, 12 Sup. Ct. 437, 36 L. Ed. 118; Constable v. Nat. Steamship Co., 154 U. S. 51, 73, 14 Sup. Ct. 1062, 38 L. Ed. 903; Willard v. Wood, 164 U. S. 502, 519, 17 Sup. Ct. 176, 41 L. Ed. 531; Episcopal City Mission v. Brown, 158 U. S. 222, 15 Sup. Ct. 833, 39 L. Ed. 960; Winters v. Hub Min. Co. (C. C.) 57 Fed. 287, 289; Knapp v. Conn. Mutual Life Ins. Co., 85 Fed. 329, 332, 29 C. C. A. 171, 40 L. R. A. 861; Green v. Turner, 86 Fed. 837, 30 C. C. A. 427; Mercantile Trust Co. v. Baltimore & O. R. Co. (C. C.) 94 Fed. 722, 1725.

Not only did the equity of the creditor, resting on the ground just stated, exist in favor of the complainant in this case, but by the statute of Iowa in force in 1885, when the subdistricts were created (section 1715 Code Iowa 1873), there was to be an “equitable division of assets and liabilities” between the constituent districts. That equitable division would reasonably, and we think necessarily, involve an inquiry into taxable property and population of the two districts. Their equitable shares of the debts would depend largely upon the resources possessed by them, respectively, for raising money to pay them, and this could only be done by taxation. It is true the parties in the progress of the trial stipulated that a fair division of liabilities between the defendants was in the proportion of two-thirds for the district of

Allison and one-third for the district of Jackson. This stipulation as to one of the important facts of the case cannot affect the equitable jurisdiction of the court over the case if it existed when the suit was instituted. It very laudably saved time and expense in making proof of facts from which such equitable division might be made.

In Kennedy v. School Dist., supra, which was a bill in equity to secure payment from several subschool districts of a debt contracted by its predecessor before the subdivision, the Supreme Court of Iowa, after giving reasons for entertaining jurisdiction in equity like those heretofore adverted to, says: “That a court of equity should have jurisdiction in such an action, we have no doubt."

In Fairfield v. Rural Independent School Dists., supra (a case involving the same issue of bonds now under consideration), Judge Shiras makes use of the following language:

“This apportionment (between the two constituent districts) cannot be properly made in a trial at law before a jury, but can only be reached through a proceeding in equity wherein the court will ascertain and decree the amount due the creditor from the original district, and will then apportion and decree the parts of this sum that are chargeable against each of the several independent districts."

In Mt. Pleasant v. Beckwith, supra, it is held that when a municipal corporation is legislated out of existence, and its territory merged into several other corporations, the latter become liable for a proportionate share of the debts of the former, and vested with its power to levy taxes upon the property transferred and the persons residing thereon, for the purpose of raising money to pay such debts, and that the remedy of creditors of the old corporation is in equity against the corporations succeeding to its property and powers.

In the case of Morgan v. Beloit, supra, a question arose concerning the liability of two municipal corporations for the payment of bonds issued by one of them prior to the organization of the other, the latter embracing the territory of the former. The Supreme Court, in disposing of the case, says:

"The authority to tax for the payment of municipal liabilities in cases like this is in the nature of a trust. The jurisdiction of a court of equity to interfere in all cases involving such an ingredient is too clear to require any citation of authorities. It rests upon an elementary principle of equity jurisprudence."

We find nothing in the case of Shapleigh v. San Angelo, supra, inconsistent with the views expressed in the cases just cited. The old city of San Angelo was superseded by a new corporation, embracing substantially the same territory and corporators as the old one had. The Supreme Court held that the Legislature intended a continued existence of the same corporation, and that, in the absence of express provision otherwise, it will be presumed that the Legislature intended that the liabilities as well as the rights to property of the old corporation should accompany the new. We find no discussion in that case of the question whether the remedy of the creditor is by action at law or in equity. Moreover, it is obvious that the facts of that case are entirely different from the facts of the one before us, where two

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separate school corporations, with different territory, different taxable values, and different populations, are substituted for one which originally incurred the debt sued on.

We conclude that the trial court correctly held that it had jurisdiction in equity of this cause, but that it erred in not decreeing to complainant the face value of bond No. 43, with simple interest thereon at the rate of a per cent. per annum from its maturity to the date of the decree. It should also have decreed in favor of complainant the further sum of $35, represented by coupon No. 20 on bond No. 43, with interest thereon from its maturity to the date of the decree. In all other respects the conclusions reached by the learned trial judge are approved.

It results that the decree must be reversed, and the cause remanded to the trial court, with directions to enter one in accordance with the conclusions just stated.

i

VERNON v. UNITED STATES.

(Circuit Court of Appeals, Eighth Circuit. April 30, 1906.)

No. 2,239.

1. CRIMINAL LAW—WRIT OF ERROR-REVIEW-EXCEPTIONS.

Assignments of error cannot be reviewed on a writ of error in a criminal case, where no exceptions were saved at the trial to the matters complained of in such assignments.

[Ed. Note.-For cases in point, see vol. 15, 'Cent. Dig. Criminal Law, $

2656.) 2. SAME-CIRCUMSTANTIAL EVIDENCE-SUFFICIENCY.

Circumstantial evidence is insufficient to warrant a conviction in a criminal case unless it is such as to exclude every reasonable hypothesis but that of guilt of the offense charged, and cannot be reconciled with the theory of innocence.

[Ed. Note For cases in point, see vol. 14, Cent. Dig. Criminal Law,

88 1259–1262.] 3. BRIBERY-GOVERNMENT OFFICERS-EVIDENCE.

In a prosecution for alleged bribery of a government officer in violation of Rev. St. § 5451 [U. S. Comp. St. 1901, p. 3680], evidence held insufficient to warrant a finding that defendant made any promise or offer, or gave any money or other valuable thing to such officer in order to

effect his official action. 4. CRIMINAL LAW-CIRCUMSTANTIAL EVIDENCE-PROOF OF CIRCUMSTANCES.

Where circumstantial evidence is relied on to establish defendant's guilt of an offense, the circumstances must be proved, and cannot themselves be presumed.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, 8

1260.] 5. SAME-VENUE-PROOF.

Under Const. Amend. 6, providing that in all criminal prosecutions the accused shall enjoy the right to a speedy trial by an impartial jury of the state and district wherein the crime shall have been committed, a conviction cannot be sustained where the evidence, so far as it showed the

commission of an offense, indicated its commission in districts other than that in which the trial was bad.

[Ed. Note.—For cases in point, see vol. 14, Cent. Dig. Criminal Law, $8 1277, 1278.]

In Error to the District Court of the United States for the Eastern District of Missouri.

James H. Harkless (Charles S. Crysler and Clifford Histed, on the brief), for plaintiff in error.

David P. Dyer, for defendant in error.

Before SANBORN and HOOK, Circuit Judges, and TRIEBER, District Judge.

TRIEBER, District Judge. The defendant was indicted for violation of section 5451, Rev. St. [U. S. Comp. St. 1901, p. 3680). There were four indictments, each of them containing three counts. By order of the court all the indictments were consolidated and tried at one time. As the defendant was, by direction of the court, acquitted on one of the indictments and on the third count of all the indictments, it is only necessary to consider the first two counts in the three indictments, in which the jury returned verdicts of guilty. As the . three indictments are identical except as to the dates and locality of the sites selected, and the second count only differs from the first in charging a promise of money to Charles L. Blanton, a copy of the first count of one of the indictments will be sufficient to show clearly the issues involved. That count charges:

“That J. B. Vernon, whose Christian name is to the grand jurors aforesaid unknown, on the 1st day of August, in the year 1902, in the Northern Division of the Eastern Judical District of Missouri, and within the jurisdiction of said court, did unlawfully, feloniously and corruptly offer and give a large sum (the exact amount thereof being to the grand jurors aforesaid unknown) of the lawful money of the United States to one Charles L. Blanton, who was then and there, as he the said J. B. Vernon then and there well knew, a person acting for and on behalf of the United States in an official function, under and by authority of a department of the government, to wit, the Treasury Department of the United States, with the intent then and there of him the said J. B. Vernon to unlawfully, feloniously and corruptly influence the action of the said Charles L. Blanton on a matter then and there pending before him in said official function as aforesaid, that is to say, in making examination of and reporting and recommending to the Secretary of the Treasury a site for a United States post office at Kirksville, Missouri, contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States."

One of the other indictments charges the offer and payment of money to influence the action of Blanton in the examination and recommendation of a site for a post office at Columbia, Mo., and the other at Moberly, Mo. Kirksville and Moberly are both within the jurisdiction of the court, while Columbia is in another district, the Western District of Missouri.

Eleven errors are assigned in the assignment of errors; but as no exceptions were saved at the trial to any of the matters complained of except those set forth in the first and fourth assignments, none other can be reviewed by this court. United States v. Breitling, 20 How.

252, 15 L. Ed. 900; Tucker v. United States, 151 U. S. 164, 14 Sup. Ct. 299, 38 L. Ed. 112; Lindsay v. Turner, 156 U. S. 208, 15 Sup. Ct. 355, 39 L. Ed. 399; Kansas & A. V. Ry. Co. v. Dye, 70 Fed. 24, 16 C. C. A. 60+; Drexel v. True, 74 Fed. 12, 20 C. C. A. 265. The assignments properly before us relate solely to the refusal of the court to direct a verdict in favor of the defendant on all the counts of the consolidated indictments. The gist of the offense charged in the indictments is the promise, offer or giving of money to Charles L. Blanton, who was then a person acting for and on behalf of the United States, for the purpose of unlawfully influencing his action on a matter then and there pending before him in his official function. No matter how reprehensible the conduct of the defendant might have been, under the indictments there could be no conviction unless there was substantial evidence justifying a finding by the jury that he had offered, given or promised to Blanton money for the purposes in the indictment set out. There is nothing in the statute under which he was indicted forbidding Vernon from persuading or influencing Blanton to select the sites he recommended to the end that he (Vernon) may receive a fee from the owners of the sites. It is no violation of this statute to take compensation from owners to present their sites to any officer of the government and to portray and plead their eligibility and desirability, provided he did not promise, offer or give to such officer a bribe for the purpose of unlawfully influencing his action. Was there substantial evidence to show these facts? In view of the verdict of the jury, it must be assumed that they disbelieved the explanations and denials of the defendant and Blanton. The jury, being the triers of the facts and the sole judges of the credibility of the witnesses, had a right to do that, and this cause must therefore be determined upon the evidence introduced by the government.

As there was no direct evidence to establish the fact that the defendant made any promise or offer or gave any money or other thing of value to Blanton, but the conviction was secured solely upon circumstantial evidence, the question to be determined now is whether this evidence was of such a nature as to warrant a submission of it to the jury. Circumstantial evidence warrants a conviction in a criminal case, provided it is such as to exclude every reasonable hypothesis but that of guilt of the offense imputed to the defendant; or, in other words, the facts proved must all be consistent with and point to his guilt only and inconsistent with his innocence. The hypothesis of guilt should flow naturally from the facts proved and be consistent with them all. If the evidence can be reconciled either with the theory of innocence or of guilt the law requires that the defendant be given the benefit of the doubt and that the theory of innocence be adopted. People v. Bennett, 49 N. Y. 144; United States v. Babcock, 3 Dill. 581, Fed. Cas. No. 14,487; United States v. Hart (D. C.) 78 Fed. 868, 873, affirmed in Hart v. United States, 84 Fed. 799, 28 C. C. A. 612; United States v. McKenzie (D. C.) 35 Fed. €26 ; People v. Ward, 105 Cal. 335, 38 Pac. 945; Asbach v. Chicago, etc., Ry. Co., 74 Iowa, 428, 37 N. W. 182; Smith v. First National Bank, 99 Mass. 605, 97 Am. Dec. 59.

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