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"the proceedings by which the mortgagee obtained his lien, three weeks before the filing of the petition," which at least suggests, if it does not adopt, the idea that the mortgage then first came into being as against the trustee.
trustee, the mortgage is to be regarded as | the act. In this case the court speaks of first having come into being when the mortgagee took possession, it would be void. In the latter view the anomalous case would be presented of a mortgage of all a man's stock in trade to secure a past debt, executed to one who had reasonable cause to believe that 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 bankruptcy under the United States bankruptcy act of 1867." We feel bound, on the whole, to take this as expressing a deliberate attitude of the court on the question under discussion, as undoubtedly that has been its attitude in the past.
The question, then, is one of Massachusetts law, and unfortunately the decision does not leave us free from doubt upon that point. If hereafter the supreme court of the state should adopt a different view from that to which we have been driven, this case would cease to be a precedent. The language of the Massachusetts statute is, "unless the property mortgaged has been delivered to and retained by the mortgagee, the mortgage shall not be valid against a person other than the parties thereto, until it has been so recorded; and a record made subsequently to the time limited [fifteen days] shall be void." Mass. Rev. Laws, chap. 198, § 1. There are cases which indicate that an assignee in bankruptcy is a universal successor, like an executor or a husband, and so that, as it is put in Lowell, Bankruptcy, § 309, the assignee is the bankrupt. Phosphate Sewage Co. v. Molleson, 5 Ct. Sess. Cas. 4th series, 1125, 1138; Bank of Scotland v. Cuthbert, 1 Rose, 462, 481; Selkrig v. Davies, 2 Dow, P. C. 230, 248, 2 Rose, 291, 317. So, in the Roman law, Bonorum emptor ficto se herede agit. Gaius, IV. § 35. But it is the settled law of Massachusetts that such a fictitious identity does not satisfy the statute, that the trustee in bankruptcy is "a person other than the parties thereto," and that, therefore, as against him the mortgage is void. Bingham v. Jordan, 1 Allen, 373, 78 Am. Dec. 748; Blanchard v. Cooke, 144 Mass. 207, 226, 11 N. E. 83; Haskell v. Merrill, 179 Mass. 120, 124, 125, 60 N. E. 485. Haskell v. Merrill is cited and relied on in the supreme court of the state, and we assume that it and the other cases cited still correctly state the law. It is clear under these cases that recording or taking possession after the qualification of the trustee would be too late, and it certainly would seem not illogical to hold that as against him the mortgage was to be treated as nonexistent at any earlier date, until the things were done which made it good under
In Briggs v. Parkman (1841) 2 Met. 258, 37 Am. Dec. 89, a messenger in insolvency took possession of the mortgaged property on July 15, at half-past one. At half-past three the mortgage was recorded. The first publication of the notice of issuing the warrant to the messenger was on July 16, and that by the terms of the insolvent law fixed the time when the property passed. It was held that the mortgage was valid as against the assignee in insolvency. In Mitchell v. Black (1856) 6 Gray, 100, a similar decision was made as to a bill of sale by way of security, and it was intimated that the law did not interfere with the action of purchasers in perfecting a title under a contract to which there was no legal objection when made. This case was relied on in Sawyer v. Turpin, 91 U. S. 114, 23 L. ed. 235, a case like the present, decided as we decide this, and cited by the court below. In Bingham v. Jordan (1861) 1 Allen, 373, 79 Am. Dec. 748, which decided that the assignee in insolvency was not a "party" within the statute, Briggs v. Parkman was referred to for its implications in favor of. that view, without a hint that the decision was disapproved and seemingly with no consciousness of inconsistency. Finally, in Folsom v. Clemence (1873) 111 Mass. 273, twelve years after Bingham v. Jordan, it was held that a mortgage made more than six months before the date of a petition in bankruptcy, and recorded within the six months, was valid. This case also betrays no sense of inconsistency with its predecessor, and is cited by the supreme court of Massachusetts as authority for its last-quoted statement of law. See, further, Bliss v. Crosier, 159 Mass. 498, 34 N. E. 1075.
As the supreme court of Massachusetts says that taking possession under the mortgage within four months would be valid as against the trustee in bankruptcy but for supposed peculiarities of the present bankruptcy law, and as Thompson v. Fairbanks, 196 U. S. 517, 25 Sup. Ct. Rep. 306, 49 L. ed. 577, although distinguishable from the present case, decides that it is valid under the present bankruptcy law if good by the laws of the state, it follows that the mortgagee was entitled to keep his goods, and that the judgment against him was wrong. Judgment reversed.
(198 U. S. 1)
JOHN A. BENSON, Appt.,
WILLIAM HENKEL, United States Mar
Triminal law removal to another Federal district for trial sufficiency of indictment-removal to District of Columbiajurisdiction of offense begun in one Federal District and completed in another.
1. Objections to an indictment charging a violation of U. S. Rev. Stat. § 5451 (U. S. Comp. Stat. 1901, p. 3680), in bribing two Federal officers to reveal the contents of certain reports pertaining to an investigation then pending in the Land Department with respect to certain frauds used in obtaining public
lands, are not available in proceedings before a United States commissioner for the removal of the accused to another Federal district for trial, where such objections raise the questions whether the statute applied to reports which had not yet been filed and might never be filed, or whether the words of the statute,
"which may at any time be pending, or which may by law be brought before him in his of ficial capacity," apply to the pendency of the Investigation or to the pendency of an obligation not to reveal the contents of a paper then in the officer's possession, or whether the revealing of the contents of such reports was forbidden by any lawful authority, there being no statute imposing such obligation; but such questions should be determined by the
court in which the indictment was found. 2. The District of Columbia is a district of the
United States within the meaning of U. S. Rev. Stat. § 1014 (U. S. Comp. Stat. 1901, p. 716), authorizing the removal for trial of a person charged with an offense against the United States to the Federal district where the trial is to be had, although this section was taken from the judiciary act of 1789, when the District of Columbia was not in existence. *
3. The supreme court of the District of Columbia must be deemed a "court of the United States" within the meaning of U. S. Rev. Stat. § 1014, authorizing the removal of a person charged with an offense against the United States cognizable by a court of the United States to the Federal district where the
*Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 509.
trial is to be had, in view of the act of June 22, 1874 (18 Stat. at L. 193, chap. 396), making applicable to the courts of the District the sections of the original judiciary act from which 1014 was taken, and of the powers given to that court as a court of the United States by D. C. Code, § 61, and of the provision of § 1 of that Code (31 Stat. at L. 1189, chap. 854), making applicable to the District all general acts of Congress "not locally inapplicable."†
The crime of bribing a public officer in violation of U. S. Rev. Stat. § 5451, when begun by mailing a letter containing the money in one Federal district, and completed by the receipt of the letter in another district, is triable in the latter district.
Statement by Mr. Justice Brown: This was an appeal from an order dismissing a writ of habeas corpus, and remanding appellant to the custody of the marshal to await the action of the district judge.
On December 31, 1903, an indictment was found by the grand jury of the District of Columbia, charging appellant with a violation of Rev. Stat. § 5451 (U. S. Comp. Stat. 1901, p. 3680), in bribing an officer of the United States to do an act in violation of his official duty. Appellant was arrested in the southern district of New York, upon a warrant issued by a United States commissioner, which warrant was issued upon the complaint of a special agent of the Interior Department, to which a copy of the indictment was annexed. Appellant demanded an examination before the commissioner, in the course of which witnesses were examined on behalf of the government, and a certified copy of the indictment was admitted as evidence. No material testimony was offered on behalf of the defendant. The commissioner found there was probable cause, and remanded defendant to the custody of the marshal to await a warrant for his removal. Immediately thereafter appellant applied for a writ of habeas corpus and certiorari. At the close of the hearing he was remanded to the custody of the marshal. 130 Fed. 486.
+Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 509.
Messrs. Frank H. Platt, J. C. Camp-| others, one of which is based upon the paybell, 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 appellee.
(1) Objection is made to the indictment upon the ground that at the time of payments to these officers the special agents' re
Mr. Justice Brown delivered the opinion port had not come into their possession or of the court:
But three questions are raised by the arguments and briefs of counsel in this case: 1. That the indictment charges no crime against the United States.
2. That the District of Columbia is not a district of the United States within the meaning of Rev. Stat. § 1014 (U. S. Comp. Stat. 1901, p. 716), authorizing the removal of accused persons from one district to another.
3. That the crime was committed in California, and is only triable there.
The indictment is founded upon Rev. Stat. § 5451, which enacts that "every person who promises, offers, or gives money or other thing of value any officer of the United States, or to any person acting for or on behalf of the United States in any official function, under or by authority of any department or office of the government thereof, with intent to influence his decision or action on any question, matter, cause, or proceeding which may at any time be pending, or which may by law be brought before him in his official capacity, with intent to induce him to do, or omit to do, any act in violation of his lawful duty, shall be punished as prescribed," etc.
The first three counts of the indictment charge, in substance, that the defendant was engaged with one Hyde, at San Francisco, California, in the business of unlawfully obtaining the public lands of the United States; that an investigation by special agents of the Land Department of the unlawful transactions so charged was ordered by the Secretary of the Interior; and it became the duty of such agents to make reports to the Secretary, the contents of which should not be revealed to any unofficial person; that at this time a department clerk was acting as chief of the special service division of the General Land Office, whose duty it was to act upon all reports of such special agents, and to preserve and keep for the exclusive use of the Land Department all such reports; and that pending such investigation the defendant unlawfully gave to such officer, in the District of Columbia, certain sums of money, with the intent to induce him to do an act in violation of his lawful duty, that is to say, to reveal to defendant the contents of the reports of such special agents relating to said investigation. These counts are representative of all the
knowledge, and there is no allegation to prove that it ever would; that they had no duty concerning it; that it was not shown that they ever would have such duty; and that a charge of bribery cannot be based upon payment to an officer to induce him to perform an act, as to which he has no duty, and may never have any duty. (2) That neither of these officers was forbidden by any lawful duty to reveal to Benson the contents of any report, even if they ever should come into a position to do so. Upon these grounds it is insisted that the indictment charges no offense against the United States under § 5451.
1. The extent to which a commissioner in extradition may inquire into the validity of an indictment put in evidence before him, as proof of probable cause of guilt, has never been definitely settled, although we have had frequent occasion to hold generally that technical objections should not be considered, and that the legal sufficiency of the indictment is only to be determined by the court in which it is found. Ex parte Reggel, 114 U. S. 642, 650, 29 L. ed. 250, 252, 5 Sup. Ct. Rep. 1148; Roberts v. Reilly, 116 U. S. 80, 96, 29 L. ed. 544, 6 Sup. Ct. Rep. 291; Horner v. United States, 143 U. S. 570, 577, 36 L. ed. 266, 269, 12 Sup. Ct. Rep. 522; Greene v. Henkel, 183 U. S. 249, 260, 46 L. ed. 177, 22 Sup. Ct. Rep. 218; Beavers v. Henkel, 194 U. S. 73, 87, 48 L. ed. 882, 887, 24 Sup. Ct. Rep. 605.
Indeed, it is scarcely seemly for a committing magistrate to examine closely into the validity of an indictment found in a Federal court of another district, and subject to be passed upon by such court on demurrer or otherwise. Of course, this rule has its limitations. If the indictment were a mere information, or obviously, upon inspection, set forth no crime against the United States, or a wholly different crime from that alleged as the basis for proceedings; or if such crime be charged to have been committed in another district from that to which the extradition is sought,—the commissioner could not properly consider it as ground for removal. In such cases resort must be had to other evidence of probable cause.
While the principle laid down in some of the earlier cases in this court, that an indictment upon a statute is ordinarily sufficient if framed in the language of the statutes, has been somewhat qualified in later
be treated as an act in violation of the lawful duty of an official or clerk. United States v. Macdaniel, 7 Pet. 1, 14, 8 L. ed. 587, 592.
While we have no desire to minimize what we have already said with regard to the indictment setting out the substance of the offense in language sufficient to apprise the accused of the nature of the charge against him, still it must be borne in mind that the indictment is merely offered as proof of the charge originally contained in the complaint, and not as a complaint in itself or foundation of the charge, which may be supported by oral testimony as well as by the indictment. When the accused is arraigned in the trial court he may take advantage of every insufficiency in the indictment, since it is there the very foundation of the charge; but to hold it to be the duty of the commissioner to determine the valid
cases, the rule still holds good that, where | tody of its papers, a breach of which may the statute contains every element of the offense, and an indictment is offered in evidence before the extradition commissioner as proof of probable cause, it is sufficient if framed in the language of the statute with the ordinary averments of time and place, and with such a description of the fraud, if that be the basis of the indictment, as will apprise an intelligent man of the nature of the accusation, notwithstanding that such indictment may be open to motion to quash or motion in arrest of judgment in the court in which it was originally found. An extradition commissioner is not presumed to be acquainted with the niceties of criminal pleading. His functions are practically the same as those of an examining magistrate in an ordinary criminal case, and, if the complaint upon which he acts, or the indictment offered in support thereof, contains the necessary elements of the offense, it is sufficient, although a more critical ex-ity of every indictment as a pleading, when amination may show that the statute does not completely cover the case. Pearce v. Texas, 155 U. S. 311, 39 L. ed. 164, 15 Sup. Ct. Rep. 116; Davis's Case, 122 Mass. 324; State ex rel. O'Malley v. O'Connor, 38 Minn. 243, 36 N. W. 462; Re Voorhees, 32 N. J. L. 141; Re Greenough, 31 Vt. 279, 288.
Applying these considerations to the present case, it appears plainly from the indictment that the accused was charged with the crime of bribery in paying to two officers certain sums of money to reveal to the petitioner the contents of certain reports, pertaining to an investigation then pending with respect to certain frauds used in obtaining public lands. The commissioner was not required to determine for himself whether the statute applied to reports which had not yet been filed, and which might never be filed, or whether the words of the statute, "which may at any time be pending, or which may by law be brought before him in his official capacity," apply to the pendency of the investigation, or to the pendency of an obligation not to reveal the contents of a paper then in his possession. This was peculiarly a subject for examination by the court in which the indictment was found.
Like comment may be made with respect to the second objection, that neither of these clerks was forbidden by any lawful authority to reveal the contents of such reports, upon the ground that there was no statute imposing such obligation. But it is clearly for the court to say whether every duty to be performed by an official must be designated by statute, or whether it may not be within the power of the head of a department to prescribe regulations for the conduct of the business of his office and the cus
offered only as evidence, is to put in his hands a dangerous power, which might be subject to serious abuse. If, for instance, he were moved by personal considerations, popular clamor, or insufficient knowledge of the law to discharge the accused by reason of the insufficiency of the indictment, it might turn out that the indictment was perfectly valid, and that the accused should have been held. But the evil once done is, or may be, irremediable, and the commissioner, in setting himself up as a court of last resort to determine the validity of the indictment, is liable to do a gross injustice.
2. It is further urged in support of this appeal that Rev. Stat. § 1014, does not authorize a removal to the District of Columbia, as it is not a district of the United States within the meaning of the law; and the supreme court of the District is not a court of the United States, as the words are used in that section. The pertinent words in the section are that "for any crime or offense against the United States, the offender may," by certain officers therein designated, "be arrested and imprisoned or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offense; and, where any offender or witness is committed in any district other than that where the offense is to be tried, it shall be the duty of the marshal to execute a warrant for his removal to the district where the trial is to be had." It is true that this section was taken from the judiciary act of 1789, and at that time the District of Columbia was not in existence. But the same remark may be made of the dozens of different districts which have been formed since this act was passed. 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 § 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 the state where the crime is committed and found in another state are surrendered upon the demand of the governor, by proceedings taken under a different statute. Rev. Stat. §§ 5278, 5279, U. S. Comp. Stat. 1901, p. 3597. Certain cases are to be found, which hold that persons accused of crimes committed within the District of Columbia, against its local laws, cannot be removed to this district for trial under § 1014. If this objection might have been a sound one under § 33 of the judiciary act [1 Stat. at L. 91, chap. 20, U. S. Comp. Stat. 1901, p. 716], since the Revised Statutes local offenses have also been treated as offenses against the United States. The question, however, does not arise in this case, since the indictment charges an offense against the United States in violation of § 5451 (U. S. Comp. Stat. 1901, p. 3680), respecting the bribery of public officers.
In conclusion of this branch of the case, it may be said that any construction of the law which would preclude the extradition to the District of Columbia of offenders who are arrested elsewhere would be attended by such abhorrent consequences that nothing but the clearest language would authorize such construction. It certainly could never have been intended that persons guilty of offenses against the laws of the United States should escape punishment simply by crossing the Potomac river, nor, upon the other hand, that this District should become an Alsatia for the refuge of criminals from every part of the country.
3. Appellant makes further objection to a removal to the District of Columbia upon the ground that the offense, if any, was committed in California, and that under the Constitution he is entitled to a trial in that jurisdiction.
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 Constitution ceived 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