;

that the appellant had purchased certain articles from one Maguire, and had caused them to weighed and measured and had also paid for them. By a memorandum at the foot of the bill, it was agreed that the goods were to remain in the vendors store until he should

send a carter for them. Maguire had caused the goods to be set apart in his cellar, and had given instructions to his clerk to deliver them to appellant whenever he should send for them. These goods were seized by the creditors of Maguire, and it was held that there had not been sufficient delivery as against them, although the officer had been told before he seized the goods that they were the appellants.

34 Godell v. Fairbrother, 12 R. I. 233; Sarle v. Arnold, 7 R. I. 582; Mead v. Gardner, 13 R. I. 257.

35 Collins v. Myers, 16 Ohio, 547; Rogers v. Dare, Wright, 136; Thorne v. Nat'l Bank, 37 O. St. 254.

36 Ingalls v. Herrick, 108 Mass. 351; Shurtleff v. Wilhand, 19 Pick. 202; Green v. Rowland, 16 Gray, 58; Harlow v. Hall, 132 Mass. 232; Thorndike v. Bath, 114 Mass. 116.

37 3 R. S. p. 2328; Hanford v. Archer, 4 Hill, 271; Mitchell v. West, 55 N. Y. 107; May v. Walter, 56 N.Y. 8; Husted v. Ingraham, 75 N. Y. 251; Mumper v. Rushmore, 79 N. Y. 19; Blant v. Gabler, 77 N. Y. 461; Steele v. Benham, 84 N. Y. 634; Southerd v. Benner, 72 N. Y. 424.

38 Rev. Stat. 1881, § 4911; New Albany Ins. Co. v. Wilcoxsen, 21, 4 Pl. 355; Rose v. Cotter, 76 Ind. 590; Kane v. Drake, 27 Ind. 29.

39 Code, § 1923; Boothly v. Brown, 40 Io. 104; Prother v. Parker, 24 Io. 26.

40 Laws of Minn. 1878, p. 543; Blackmen v. Wheaton, 13 Minn. 326; Benton v. Snyder, 22 Minn. 247; Camp v. Thompson, 25 Minn. 175.

41 Rev. Sts. of Wis. 1878, p. 655, § 2310; Grant v. Lewis, 14 Wis. 186; Osen v. Sherman, 27 Wis. 505; Blakesley v. Rossman, 43 Wis. 116.

42 Sts. of Neb. 1881, p. 287; Uhl v. Robinson, 8 Neb. 272; Densmore v. Torner, 1883.

43 Tognini v. Kyle, 17 Nev. 209.

44

45

bricks, or a large quantity of flour, or one hundred and fifty acres of hay in the field," or a large quantity of lumber, conspicuously marked but left in the yard of the vendor until the weather was favorable for its removal.47

In the case of the sale of the furniture of a large hotel, when the furniture could not be removed without great deterioration and expense, and was mainly valuable for the purposes of a hotel, and at the place where situated, it was held sufficient for the vendee to assume the direction and control of the property in an open and notorious manner. 48

H. A distinction has grown up between sales made in payment of an antecedent debt and those made on a new consideration, paid, or promised.

First as to sales made upon a new consideration.

If the seller be insolvent or in failing circumstances, and the purchaser knows, or is in possession of information reasonably calculated to stimulate inquiry, and which, if followed up, would lead to the discovery that the purpose of the seller is to put his property beyond reach or otherwise to delay, hinder, or defraud his creditors, then a purchaser under these circumstances, though full consideration be paid, is invalid as against creditors. But if the purchase be made without such knowledge, and without such information as reasonably to put him on inquiry, he acquires a good title, no matter how fraudulent the intent of the seller. There is this qualification, however, if the purchaser, before full payment, is chargeable with knowledge of the fraudulent intent of the seller, he is not permitted to make further payments to the seller, but must withhold the same for the paramount claims of his creditors. 49

Second. When the sale is in payment of

44 Woods v. Bugby, 29 Cal. 472; Allen v. Smith, 10 Mass. 308.

45 Cartwright v. Phoenix, 7 Cal. 287. 46 Choffin v. Doub, 14 Cal. 384.

47 Haynes v. Hunsicker, 26 Pa. 58; Chase v. Ralston, 30 Pa. 539.

48 McKibben v. Martin, 64 Pa. 352; 3 Am. R. 588; a very important case with an exhaustive opinion by Judge Sharswood.

49 Hall v. Heydon, 41 Ala. 242; Green v. Tanner, 8 Metc. 411; Crawford v. Kirksey, 55 Ala. 282; 28 Am R. 704.

antecedent debts, if there be no secret trust' or benefit or reservation, reserved to the grantor, an actual sale made by such debtor, at a fair and reasonable price, will be upheld, although it be known to both contracting parties that such sale will leave the debtor unable to pay his other debts. To hold otherwise, would be to declare that the vigilant creditor, who stipulates for security of his claim against a failing debtor loses his claim by attempting to save it. But the creditor must not go beyond the permissible purpose of securing his own demand. If he go beyond this, and secure a benefit to the debtor, he will thereby violate both the letter and the spirit of the law and the sale will be set aside for fraud.50

What the law is in each state can only be determined by an examination of its own statutes and supreme court decisions.

5. The following was very highly commended by the Supreme Court of Texas as a proper charge to the jury. As between the parties delivery of possession is not essential to the completion of a sale of chattels, unless made so by the terms of the bargain; but as against an attaching creditor, such delivery of possession, actual or constructive, is essential to the completeness of such sale.

The change of possession, like other parts of the transaction, must be the will of both parties and with the design of rendering the sale complete. If anything remains to be done by the vendor which is material or important before the vendee can identify or possess the thing sold, or before it becomes deliverable, the sale is executory and incomplete, and the property does not pass absolutely to the vendee.”51

Springfield, Ohio.

WM. M. ROCKEL,

50 Johnson v. Thweatt, 18 Ala.741; King v. Kenan, 38 Ala. 63; Holbird v. Anderson, 5 T. R. 23; Burrill on Assignments, 3 ed. § 13; Croanhaven v. Hart,21 Pa. St. 495; Pearson v. Rockhill, 4 B. Monr. 296; U. S. Bank v. Huth, 4 B. Monr. 423; McMenomy va Murray, 3 Johns. Ch. 435.

51 Morgan v. Taylor, 32 Tex. 363. For additional authorities bearing on the same subject, see 2 Kent. 515; Ryan v. Young, 17 Cent. L. J. 499; Nelson v. Gaul, S. C. So. Car. 1884; Harlow v. Hall, 132 Mass. 116; Laughten v. Harden, 68 Me. 208; Claflin v. Mess, 30 N. J. 211, 358, 530; 1 Chit. on Cont. (11th ed.) 571, 572; Pregnall v. Miller, 53 Am. R. 684.

The complaint against the respondent in this case is criminal, and was made by Charles W. Cond, President of the Farmers' National Bank of Constantine, in behalf of the bank, for the larceny and embezzlement of its funds, while the respondent was engaged in its employment as clerk or servant. The Farmers' National Bank of Constantine, at the time the alleged crime was committed, was "an incorporated banking institution, organized and existing under the laws of the United States, providing for the creation of National Banking Associations."

The information against the respondent contains nine counts, upon two of which, the third and fourth, he was tried and convicted of the offense stated therein, in the St. Joseph Circuit Court at the last October term, and was, upon such conviction, sentenced to imprisonment at Jackson for the period of three years and six months.

The case is now before us for review on error. The counts upon which the conviction was had will be found in the margin.

The statute under which the conviction was had at the circuit, read as follows:

"If any officer, agent, clerk or servant of any incorporated company, or of any city, township, incorporated town or village, school district, or other public or municipal corporation, or if any clerk, agent or servant of any private persons, or of a co-partnership, except apprentices and other persons under the age of sixteen years, shall embezzle or fraudulently dispose of, or convert to his own use, or shall take or secrete with intent to embezzle and convert to his own use, without the consent of his employer or master, any money or other property of another, which shall have come to his possession, or shall be under his charge by virtue of such office or employment, he shall be deemed by so doing to have committed the crime of larceny." How. Stat. § 9151.

This statute was passed by the legislature prior to the national banking system, and could not have therefore special reference to the national legislation creating that system, however clearly the crime of the respondent may be described in the statute. Rev. Stat. 1838, p. 360, § 27; Rev. Stat. 1846, p. 666, § 29.

At the time the alleged act of embezzlement was committed, the respondent was in the bank and in its service as clerk.

The question raised in this case is, the Federal government having declared the act charged against the respondent a criminal offense, and provided for the apprehension, trial and conviction of the offender under its laws, had the State court any jurisdiction, concurrent or otherwise, to deal with the respondent under the State statute making the same act criminal and providing for its punishment?

The learned counsel for the respondent claim that the jurisdiction of the Federal Court in the case is complete and exclusive.

That the offense charged in the information is for the violation of a Federal law, and that the punishment therefor has been fixed and established and the whole subject has been covered by the legislation of Congress.

The Constitution of the United States provides as follows: "This Constitution and the laws of the United States which shall be made in pursuance thereof, and all the treaties made or which shall be made under the authority of the United States shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." Const. U. S. Art. VI.

The statute passed by Congress punishing the offence charged in the information is as follows: "Every president director, cashier, teller, clerk or agent of any association, who embezzles, abstracts or wilfully misapplies any of the moneys, funds or credits of the association, or who, without authority from the directors, issues or puts in circulation any of the notes of the association, or who, without such authority, issues or puts forth any certificate of deposit, draws any order or bill of exchange, makes auy acceptance, signs any note, bond, draft, bill of exchange, mortgage, judgment or decree; or who makes any false entry in any book, report or statement of the association, with intent in either case, to injure or defraud, the association or any other company, body politic or corporate, or any individual person, or to deceive any officer of the association, or any agent appointed to examine the affairs of any such association; and every person, who with like intent, aids or abets any officer, clerk or agent in any violation of this section, shall be deemed guilty of a misdemeanor, and shall be imprisoned not less than five years nor more than ten." An examination of this statute, I think must convince any one that, the offense described in this information is clearly defined therein, and falls within the scope of the act and within the jurisdiction of the Federal Court, and if that jurisdiction if exclusive in the case, but little remains to be said. If it is, the conviction cannot be sustained. Is the jurisdiction concurrent with that of the State is the only remaining question.

"Section 711 of chapter twelve of the Revised Statutes of the United States provides that, "jurisdiction vested in the courts of the United States in the cases and proceedings hereinafter mentioned, shall be exclusive of the Courts of the several States. First, of all crimes and offences cognizable under the authority of the United States."

The other clauses of the section need not be here given, as none of them relate to criminal jurisdiction.

Congress by law created the National Banking system and provided for their internal workings and prescribed a punishment for the offence charged against the respondent, Rev. Sate. U. S. Title 62.

It seems to me clearly the case is one falling within the paragraph of section 711 above quoted, and that by the federal law itself the jurisdiction of the State is expressly excluded.

Chancellor Kent in his Commentaries in concluding his discussion of the matter says: "In judicial matters the concurrent jurisdiction of the State tribunals depends altogether upon the pleasure of Congress and may be revoked or extinguished whenever they think proper, in every case in which the subject matter may be made cognizable in Federal courts; and that without an express provision to the contrary, the State courts will retain a concurrent jurisdiction, in all cases where they had jurisdiction originally over the subject matter."

First Kent, Com.p. 400, and there are other authorities to the same effect, Delafield v. State of Illinois 2, Hill 159; Houston v. Moore, 5 Wheat. 22; Harlin v. the People, 1 Doug. Mich., 207; Snoddy v. Howard, 51 Ind. 411; Hendrick's Case 5 Leigh 713; Hill's case 97 Mass. 570.

It is also held that in cases to which the jurisdiction of the State courts might extend, in the absence of any action by Congress, where Congress does assume jurisdiction, its control then becomes paramount and exclusive.

The Moses Taylor 4 Wallace 411; Ex-parte Bridges, 2 Woods Rep. 418; Ex-parte Houghton 7 Fed. Rep. 657; Brown v. U. S. 14 Am. Law Reg. 566; Sturges v. Crowninshield, 4 Wheat. 539; Prigg v. Commonwealth, 16 Pet. 539; Martin v. Hunter 1 Wheat. 304; Houston v. Moore, 5 Wheat 1; State v. Pike, 15 N. H. 83; State v. Adams; 4 Blackford 146; Com. v. Fuller, 8 Met. 313; Com. v. Tenney 97 Mass. 50. Commonwealth v. Felton, 101 Mass. 204; The People v. Kelly, 38 Cal. 145; 3 Story Com. on Const. 623.

Commonwealth v. Felton states the conclusion of the matter in that case in language quite applicable to the present. The respondent was charged in that case, with being an accessory to an embezzlement by officer of a National Bank. In delivering the opinion of the court, Mr. Justice Ames said, "The difficulty in the way of holding the defendant upon the present indictment is, that the Act of Congress has taken the crime of

the principal out of our jurisdiction and our courts cannot deal with him upon that charge."

As the case comes to us upon this record, I do not think the judgment should be allowed to stand. The Circuit Court was without jurisdiction. The judgment must be reversed and the prisoner discharged.

R. T. Sherwood, James V. Campbell, J. W. Champlin.

NOTE.-An examination of a good many cases bearing on the subject of the concurrent jurisdiction of the State courts over matters which have been legislated upon by Congress, shows that the decisions on the subject are not altogether harmonious and that it would be almost impossible, from the decisions alone, to draw a clear line between the exclusive jurisdiction of the federal courts and the concurrent jurisdiction of the State courts, over questions upon which there has been federal legislation. In a Pennsylvania case,1 it was held that embezzlement from a National bank is not punishable by a State court of Pennsylvania. In Connecticut it was held, that where an act of Congress creating a corporation provides a punishment to be inflicted upon any officer of the corporation who embezzles its property, it is not competent for the State legislature to make the same act an offense against the laws of the State. But when an act of Congress creates a corporation within a State, and authorizes it in general terms to pursue the business of banking, it is competent for a State legislature to protect the bank, and those who deal with it, in that business, by suitable penal enactments. Such an en⚫actment is not predicated on, and has no relation to any law of Congress or offense created thereby. Therefore when the act of Congress authorizing the establishment of National banks, provided a punishment to be inflicted upon the officers of the bank who should embezzle its property, but made no provision for such punishment in case of the embezzlement or theft of the property of its customers, and a teller of the bank purloined a package of bonds, specially deposited in the vault of the bank by one of its customers, it was held that, the act was within the purview of the statute of the State punishing officers of banks for embezzling the property of third persons deposited therein, and within the jurisdicsion of our courts.2

A State court has no jurisdiction of criminal offenses against the United States, nor can such jurisdiction be conferred upon them by an act of Congress. The offense of fraudulent conversion by an officer of a National bank of property of individuals deposited in such bank is not punishable under any existing law of the United States and the courts of the commonwealth have jurisdiction thereof.4 The act of the State of Pennsylvania that the officers and privates of the militia of the State, neglecting or refusing to serve when called into actual service by the President of the United States, shall be liable to the penalties defined in the act of Congress of February 28th 1795, and also providing for the trial of such delinquents by a State Court martial is not repugnant to the constitution and laws of the United States.5

The statute of the United States are as much the law of the land in any State as are those of the State,

1 Ketner v. Commonwealth, 92 Pa. 372.

2 State v. Fuller, 34 Conn. 280.

8 U. S. v. Lathrop, 17 Johns. 4.

4 Commonwealth v. Tenney, 97 Mass. 50.

5 Housten v. Moore, 5 Wheat. 1.

and although exclusive jurisdiction for their enforcement may be given to the Federal courts, yet when it is not given, either expressly or by necessary implications, the State courts, having competent jurisdiction in other respects, may be resorted to. In the Cornell case it was held that the right of exclusive legislation carries with it the right of exclusive jurisdiction.7

A state has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits, as any foreign nation, when that jurisdiction is not surrendered or restrained by the constitution of the United States.8 The statutes of the several States regulating the subject of pilotage, are in view of the numerous acts of Congress recognizing and adopting them to be regarded as constitutionally made, until Congress by its own acts supersedes them.

The power vested in Congress by the Federal constitution, "to provide for the punishment of counterfeiting the current coin of the United States" may be exercised by the several States concurrently with Congress.10 The jurisdiction of the Federal courts is not exclusive of the jurisdiction of the State courts, over offenses against State laws, making it punishable to counterfeit such coin. An indictment lies, under the statute of the State for counterfeiting the current coin of the United States.12 The Courts of Indiana have jurisdiction of the offense of retaining in possession,apparatus made use of in counterfeiting gold or silver coin of the United States current in this state.13 A teller of a National bank may be convicted in a State court upon an indictment charging him with fraudulently making false entries, reports, and statements of the bank with intent to injure and defraud said bank.14

Although the offender be indictable in the courts of the United States for an offense against the laws of the United States, he is also indictable in the courts of Virginia for the offense against the laws of the State.15 It is no objection to an indictment for an offense against a statute of a State, that the defendant is liable to punishment, for the same act, under a law of the United States.16 The jurisdiction of the State courts extends to the case of a forgery of powers of attorney to receive warrants for lands granted by acts of Congress for military services.17

The courts of Massachusetts have jurisdiction of an action by an informer against a collector of customs to recover a share of a penalty or forfeiture recovered by the latter for smuggling.18 The courts of Maryland have jurisdiction in cases instituted to recover double the amount of interest unlawfully taken by a National bank.19 The court of Common Pleas of Pennsylvania has jurisdiction of returns arising under the act of Congress imposing new duties on licenses to distillers of spirituous liquors.20 Trover may be maintained in the courts of New York against a postmaster for improperly detaining a newspaper, although such deten

6 Claflin v. Houseman, 93 U. S. 130.

7 U. S. v. Cornell, 2 Mason, 91.

8 City of New York v. Miln, 11 Pet. 102.

9 Ex parte McNeil, 13 Wall. 240.

10 Harlan v. People, 1 Doug. (Mich.) 207. 11 Id.

12 Chess v. State, 1 Blackf. 198.

13 Snoddy v. Howard, 51 Ind. 411.

14 Luberg v. Commonwealth, 94 Pa. St. 85.

15 Hendricks v. Commonwealth, 5 Leigh, 707.

16 State v. Moone, 6 Ind. 436.

17 Commonwealth v. Shaeffer, 4 Dal. 23.

18 Lapham v. Almy, 13 Allen, 301.

19 Ordway v. Central Nat. Bank, 47 Md. 217.

20 Buckwalter v. U. S., 11 S. & R. 193.