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Missouri,” Delaware,23 Nevada,24 and Illi- selling them. It was held that there was a nois, 25 it is enacted by law that every sale not sufficient delivery even as to attaching credaccompanied by an immediate delivery, and

itors. 29 followed by an actual and continued posses- The facts in the case are very much simsion of the thing sold, shall be conclusive ilar to Hull v. Sigisworth,30 where the concluevidence of fraud as against the creditors of sion reached was just the opposite.

In the vendor or subsequent purchaser in good Packard v. Wood,51 it was held that the deed faith. But whether the possession is actual of a bakehouse and land in a distant place, and continued as against a creditor, must be and a bill of sale including all the implements ordinarily determined by a jury.26 In Mary in the house and a bread cart standing under land it is provided by statute, that unless the an open shed upon the land, accompanied by bill of sale is recorded, it is invalid as to a delivery by the vendee to the vendor of a third persons.?

lease of the house, land, cart and impleF. Prima Facie Fraudulent. The largements, is not sufficient evidence of a delivery majority of the States hold, that whether or of the cart as against an attaching creditor not a fraud has been committed by the ven

of the vendor. dor, is, taking all the circumstances into con- In the same court in Dempsey v. Gardner, 32 sideration, a question for the jury.

it was held that when it had appeared that That the mere fact of the vendor retaining

the plaintiff had from time to time advanced possession is prima facie fraudulent, and that

sums of money to his mother, equal to or the burden is upon him to show that the

greater than the value of the horse, and

about three months prior to the attachment, transaction was fair, honest and free from

in consideration of the payment of fifteen fraud. 28

dollars additional, the mother executed a bill 1. Common Law Decisions.-In Webster

of sale of the horse to the plaintiff. The v. Anderson, the facts were found to be that

horse was kept in the barn of the mother beAnderson was at work for Hooper on his

fore and after the sale. She did not live farm; that Hooper owed him $100; that An

with her son, but he frequently went to see derson requested him to pay him, and it was

her and often saw the horse. It was held agreed between them that the latter should

that the title bad not passed as against a transfer to him twenty hogs, then on his

creditor of the mother. place, with others, at the price of $96, and that Anderson should receive them at that In delivering the opinion in this case, C. J. price; that the parties went where the hogs Gray, now of the U. S. Supreme Court said, were, and those to be taken by Anderson “But by the law as established in this state were pointed out and specified, and Hooper it was necessary, as against subsequent purcharged Anderson the purchase price on ac- chasers or attaching creditors, that there count; that it was a part of the arrangement

should be a delivery of the property. No that the bogs should remain in the same pas

delivery actual or symbolical, was proved. ture as before with the other hogs, and be The buyer did no act by way of taking pos-fed and cared for by Anderson with the oth- session or exercising ownership, and the ers until an opportunity should be found for seller did not agree to hold or keep the horse

for him, there was no evidence of the delivery 22 Wagner's Sts. 281, $ 10; Claflin v. Rosenberg, 42

for the consideration of the jury, except such Mo. 439; Bishop v. O'Connell, 56 Mo. 158; Wright v. as might be implied from the execution and McCormick, 67 Mo. 626.

delivery of the bill of sale. That was not. 23 Laws of 1874, p. 356, ch. 65, $ 4; Taylor v. Richardson, 4 Houst. 300.

enough. 24 Laws. 1873, & 292; Conway v. Edwards, 6 Nev. 190. A somewhat sim

was Nesbit v. 25 Tickner v. McClelland, 84 III. 471; Hart v. Wing,

Bank of Montreal,33 in which it was shown 44 Ill. 141; Allen v. Carr, 85 III. 388; Davis v, Ransom, 18 III. 396; Goodheart v. Johnson, 88 Ill. 58; Greene. baum v. Wheeler, 90 III. 296.

29 42 Mich, 554. 2 Herthal v. Myles, 53 Cal. 623. 27 Rev. Code, 1878, p. 391; Kruiezer v. Conway, 45

supra 18. Md. 582; Thompson v. B. &0. R. R. 28 Md. 376.

31 4 Gray, 307. % Nelson v. Good, s. C. SC. Jan. 1884; 18 Cent. L.

32 127 Mass. 381. J. 139.

83 9 Low Can. 193.

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that the appellant had purchased certain ar

or a large quantity of flour, or one ticles from one Maguire, and had caused them hundred and fifty acres of hay in the field, to weighed and measured and had also paid or a large quantity of lumber, conspicuously for them. By a memorandum at the foot of marked but left in the yard of the vendor the bill, it was agreed that the goods were to

until the weather was favorable for its reremain in the vendors store until he should

moval.4 send a carter for them. Maguire had In the case of the sale of the furniture of a caused the goods to be set apart in his cellar, large hotel, when the furniture could not be and had given instructions to his clerk to

removed without great deterioration and deliver them to appellant whenever he should expense, and was mainly valuable for the send for them. These goods were seized by purposes of a hotel, and at the place where the creditors of Maguire, and it was held situated, it was held sufficient for the vendee that there had not been sufficient delivery as

to assume the direction and control of the against them, although the officer had been property in an open and notorious manner. 4 told before he seized the goods that they were

H. A distinction has grown up between the appellants.

sales made in payment of an antecedent debt In Rhode Island, 34 Ohio,35 and Massachu

and those made on a new consideration, paid, setts, 36 it has been held that the retention by

or promised. the vendor is only prima facie evidence of First as to sales made upon a new considfraud.

eration. 2. Prima facie. Fraudulent by statutory

If the seller be insolvent or in failing cirenactment.

cumstances, and the purchaser knows, or is The States of New York, 37 Indiana, 38 in possession of information reasonably calIowa, a9 Minnesota, 40 Wisconsin4 and Nebras culated to stimulate inquiry, and which, if ka, 42 it is provided by statute that the reten followed up, would lead to the discovery that tion by the vendor is only prima acie evi the purpose of the seller is to put his propdence of fraud subject to explanation, &c. erty beyond reach or otherwise to delay,

G. Sometimes the nature of the article sold hinder, or defraud his creditors, then a purwill excuse immediate change of pos

chaser under these circumstances, though full session as a sale of 12,000 bushels of char consideration be paid, is invalid as against coal, 43 in pits in the vendor's land, a kiln of creditors. But if the purchase be made with


out such knowledge, and without such infor34 Godell v. Fairbrother, 12 R. I. 233; Sarle v. Ar mation as reasonably to put him on inquiry, pold, 7 R. I. 582; Mead v. Gardner, 13 R. I. 257.

he acquires a good title, no matter how 85 Collins v. Myers, 16 Ohio, 547; Rogers v. Dare, Wright, 136; Thorne v. Nat'l Bank, 37 0. St. 254.

fraudulent the intent of the seller. There is 36 Ingalls v. Herrick, 108 Mass. 351; Shurtleff v. Wil

this qualification, however, if the purchaser, hand, 19 Pick. 202; Green v. Rowland, 16 Gray, 58; before full payment, is chargeable with Harlow v. Hall, 132 Mass. 232; Thorndike v. Bath, 114 Mass. 116.

knowledge of the fraudulent intent of the 37 3 R. S. p. 2328; Hanford v. Archer, 4 Hill, 271;

seller, he is not permitted to make further Mitchell v. West, 55 N. Y. 107; May v. Walter, 56 N.Y. payments to the seller, but must withhold the 8; Husted v. Ingraham, 75 N. Y. 251; Mumper v. Rushmore, 79 N. Y. 19; Blant v. Gabler, 77 N. Y. 461; same for the paramount claims of his crediSteele v. Benham, 84 N. Y. 634; Southerd v. Benner, 72 N. Y. 424.

Second. When the sale is in payment of $8 Rev. Stat. 1881, $ 4911; New Albany Ins. Co. v. Wilcoxsen, 21, 4 Pl. 355; Rose v. Cotter, 76 Ind. 590; Kane v. Drake, 27 Iud. 29.

44 Woods v. Bugby, 29 Cal. 472; Allen v. Smith, 10 39 Code, $ 1923; Boothly v. Brown, 40 Io. 104; Pro

Mass. 308. ther v. Parker, 24 Io. 26.

45 Cartwright v. Phønix, 7 Cal. 287. 40 Laws of Minn. 1878, p. 543; Blackmen v. Wheaton,

46 Choffin v. Doub, 14 Cal. 384. 13 Minn. 326; Benton v. Snyder, 22 Minn. 247; Camp 17 Haynes v. Hunsicker, 26 Pa. 58; Chase v. Ralston, v. Thompson, 25 Minn. 175.

30 Pa. 539. 41 Rev. Sts. of Wis. 1878, p. 655, $ 2310; Grant v. 48 McKibben v. Martin, 64 Pa. 352; 3 Am. R. 588; Lewis, 14 Wis. 186; Osen v. Sherman, 27 Wis. 505; a very important case with an exhaustive opinion by Blakesley y. Rossman, 43 Wis. 116.

Judge Sharswood. 12 Sts. of Neb. 1881, p. 287; Uhl v. Robinson, 8 Neb. 49 Hall v. Heydon, 41 Ala. 242; Green v. Tanner, 8 272; Densmore v. Torner, 1883.

Metc. 411; Crawford v. Kirksey, 55 Ala. 282; 28 Am 13 Tognini v. Kyle, 17 Nev. 209.

R. 704.

tors. 49


antecedent debts, if there be no secret trust' CRIMINAL LAW-LARCENY - EMBEZZLEor benefit or reservation, reserved to the


TIONAL BANKS. grantor, an actual sale made by such debtor, at a fair and reasonable price, will be upheld,

PEOPLE V, FONDA. although it be known to both contracting parties that such sale will leave the debtor Supreme Court of Michigan, July 15, 1886. unable to pay his other debts. To hold

1. Congress alone has jurisdiction of the affairs of otherwise, would be to declare that the vigi- National Banks, and the power to punish offenses arislant creditor, who stipulates for security of

ing under the National Banking Law is reserved by

that law to the Federal courts. his claim against a failing debtor loses his

2. siate courts have no power, either under State claim by attempting to save it. But the cred

statutes, or at common law, to punish embezzlements itor must not go beyond the permissible pur- committed by the officers of National Banks. pose of securing his own demand. If he go beyond this, and secure benefit to the The complaint against the respondent in this debtor, he will thereby violate both the letter

case is criminal, and was made by Charles W.

Cond, President of the Farmers' National Bank and the spirit of the law and the sale will be

of Constantine, in behalf of the bank, for the set aside for fraud.50

larceny and embezzlement of its funds, while the What the law is in each state can only be respondent was engaged in its employment as determined by an examination of its own

clerk or servant. The Farmers' National Bank of statutes and supreme court decisions.

Constantine, at the time the alleged crime was

committed, was “an incorporated banking institu5. The following was very highly commen

tion, organized and existing under the laws of the ded by the Supreme Court of Texas as a

as a tional Banking Associations."

United States, providing for the creation of Naproper charge to the jury. As between the parties delivery of possession is not essential The information against the respondent contains to the completion of a sale of chattels, unless

nine counts, upon two of which, the third and

fourth, he was tried and convicted of the offense made so by the terms of the bargain; but as

stated therein, in the St. Joseph Circuit Court at against an attaching creditor, such delivery

the last October term, and was, upon such conof possession, actual or constructive, is es- viction, sentenced to imprisonment at Jackson for sential to the completeness of such sale. the period of three years and six months. The change of possession, like other parts

The case is now before us for review on error.

The counts upon which the conviction was bad of the transaction, must be the will of both

will be found in the margin. parties and with the design of rendering the

The statute under which the conviction was had sale complete. If anything remains to be

at the circuit, read as follows: done by the vendor which is material or im- “If any officer, agent, clerk or servant of any portant before the vendee can identify or

incorporated company, or of any city, township,

incorporated town or village, school district, or possess the thing sold, or before it becomes

other public or municipal corporation, deliverable, the sale is executory and incom

if any clerk, agent or servant of any priplete, and the property does not pass abso- vate persons,

of co-partnership, exlutely to the vendee.

cept apprentices and

other persons

under WM. M. ROCKEL,

the age of sixteen years, shall embezzly Springfield, Ohio.

fraudulently dispuse of, or convert to his own use,

or shall take or secrete with intent to embezzle 50 Johnson v. Thweatt, 18 Ala. 741; King v. Kenan,

and convert to his own use, without the consent 38 Ala. 63; Holbird v. Anderson, ó T. R. 23; Burrill

of his employer or master, any money or other on Assignments, 3 ed. $ 13; Croaphaven v. Hart,21 Pa. property of another, which shall have come to his St. 495; Pearson v. Rockhill, 4 B. Monr. 296; U. S. possession, or shall be under his charge by virtue Bank v. Huth, 4 B. Monr. 423; McMenomy v Murray, of such office or employment, he shall be deemed 3 Johns. Ch. 435. 51 Morgan v. Taylor, 32 Tex. 363. For additional au

by so doing to have committed the crime of larthorities bearing on the same subject, see 2 Kent. 515;

ceny." How. Stat. $ 9151. Ryan v. Young, 17 Cent. L. J. 499; Nelson v. Gaul, s. This statute was passed by the legislature prior C. So. Car. 1884; Harlow v. Hall, 132 Mass. 116; to the national banking system, and could not have Laughten v. Harden, 68 Me. 208; Claflin v. Mess, 30 N.

therefore special reference to the national legislaJ. 211, 358, 530; 1 Chit. on Cont. (11th ed.) 571, 572;

tion creating that system, however clearly the Pregnall v. Miller, 53 Am. R. 684.

crime of the respondent may be described in the statute. Rev. Stat. 1838, p. 360, $ 27; Rev. Stat. 1846, p. 666, § 29.




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At the time the alleged act of embezzlement was “Section 711 of chapter twelve of the Revised committed, the respondent was in the bank and Statutes of the United States provides that, "jurin its service as clerk.

isdiction vested in the courts of the United States The question raised in this case is, the Federal in the cases and proceedings bereinafter mengovernment having declared the act charged tioned, shall be exclusive of the Courts of the against the respondent a criminal offense, and several States. First, of all crimes and offences provided for the apprehension, trial and convic cognizable under the authority of the United tion of the offender under its laws, had the State

States." court any jurisdiction, concurrent or otherwise, The other clauses of the section need not be to deal with the respondent under the State stat here given, as none of them relate to criminal ute making the same act criminal and providing jurisdiction. for its punishment?

Congress by law created the National Banking The learned counsel for the respondent claim system and provided for their internal workings that the jurisdiction of the Federal Court in the and prescribed a punishment for the offence case is complete and exclusive.

charged against the respondent, Rev. Sate. U.S. That the offense charged in the information is Title 62. for the violation of a Federal law, and that the It seems to me clearly the case is one falling punishment therefor has been fixed and estab within the paragraph of section 711 above quoted, lished and the whole subject has been covered by and that by the federal law itself the juristhe legislation of Congress.

diction of the State is expressly excluded. The Constitution of the United States provides

Chancellor Kent in his Commentaries in conas follows: "This Constitution and the laws of cluding his discussion of the matter says: “In the United States which shall be made in pursu judicial matters i he concurrent jurisdiction of the ance thereof, and all the treaties made or which State tribunals depends altogether upon the pleasshall be made under the authority of the United

ure of Congress and may be revoked or extinStates shall be the supreme law of the land; and guished whenever they think proper, in every case the judges in every State shall be bound thereby, in which the subject matter may be made cognize anything in the Constitution or laws of any State able in Federal courts; and that without an exto the contrary notwithstanding." Const. U. S. press provision to the contrary, the State courts Art. VI.

will retain a concurrent jurisdiction, in all cases The statute passed by Congress punishing the where they had jurisdiction originally over the offence charged in the information is as follows: subject matter."

“Every president director, cashier, teller, clerk First Kent, Com.p. 400, and there are other auor agent of any association, who embezzles, ab thorities to the same effect, Delafield v. State of stracts or wilfully misapplies any of the moneys, Illinois 2, Hill 159; Houston v. Moore, 5 Wheat. funds or credits of the association, or who, with 22; Harlin v. the People, 1 Doug. Mich., 207; out authority from the directors, issues or puts in Snoddy v. Howard, 51 Ind. 411; Hendrick's Case circulation any of the notes of the association, or 5 Leigh 713; Hill's case 97 Mass. 570. who, without such authority, issues or puts forth It is also beld that in cases to which the jurisany certificate of deposit, draws any order or bill diction of the State courts might extend, in the of exchange, makes auy acceptance, signs any absence of any action by Congress, where Congress note, bond, draft, bill of exchange, mortgage, does assume jurisdiction, its control then becomes judgment or decree; or who makes any false entry

paramount and exclusive. in any book, report or statement of the associa

The Moses Taylor 4 Wallace 411; Ex-parte tion, with intent in either case, to injure or de Bridges, 2 Woods Rep. 418; Ex-parte Houghton 7 fraud, the association or any other company, body Fed. Rep. 657; Brown v. U. S. 14 Am. Law Reg. politic or corporate, or any individual person, or 566; Sturges v. Crowninshield, 4 Wheat. 539; to deceive any officer of the association, or any Prigg v. Commonwealth, 16 Pet. 539; Martin v. agent appointed to examine the affairs of any Hunter 1 Wheat. 304; Houston v. Moore, 5 Wheat such association; and every person, who with like 1; State v. Pike, 15 N. H. 83; State v. Adams; 4 intent, aids or abets any officer, clerk or agent in Blackford 146; Com. v. Fuller, 8 Met. 313; Com. any violation of this section, shall be deemed v. Tenney 97 Mass. 50. Commonwealth v. Felton, guilty of a misdemeanor, and shall be imprisoned 101 Mass. 204; The People v. Kelly, 38 Cal. 145; not less than five years nor more than ten."

3 Story Com. on Const. 623. An examination of this statute, I think must Commonwealth v. Felton states the conclusion convince any one that, the offense described in of tbe matter in that case in language quite apthis information is clearly defined therein, and plicable to the present. The respondent was falls within the scope of the act and within the charged in that case, with being an accessory to jurisdiction of the Federal Court, and if that juris an embezzlement by officer of a National Bank. diction if exclusive in the case, but little remains In delivering the opinion of the court, Mr. Justice to be said. If it is, the conviction cannot be sus Ames said, “The difficulty in the way of holding tained. Is the jurisdiction concurrent with that of the defendant upon the present indictment is, the State is the only remaining question.

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, 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.3 The of. fense 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,

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 bas 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. 11 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.18 A teller of a National bank may be convicted in a State court upon an indictment charging him with fraudu. lently 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. 8., 11 S. & R. 193.

1 Ketner v. Commonwealth, 92 Pa. 372. 2 State v. Fuller, 34 Conn. 280. 3 U. S. v. Lathrop, 17 Johns. 4. 4 Commonwealth v. Tenney, 97 Mass. 50. 3 Housten v. Moore, 5 Wheat. l.

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