The defendant Bertha WuH owned certain real estate in Indianapolis which she conveyed, her husband joining, to a third person, who conveyed it back to her husband,Henry Wul£. The husband, the wife joining, then mortgaged the same prop61·ty to the Phmnix Mutual Life Insurance Company to secure a loan. The mortgage showed upon its face that it was to secure a loan to the husband. The loan was not paid at maturity, and on the fifth day of December, 1876, the mortgage was foreclosed in this court. On the twelfth day of November, 1877, B(lrtha Wulf brought suit in this court to set aside her deed to the third party, his deed to her husband, and the mortgage of herself and husband to the insurance company, on the sole ground that she was a minor when she executed those instruments. The service in the foreclosure suit was after Bertha Wulf had attained her majority, and the decree against her was by default. The marshal's return shows that the subpmna in the foreclosure suit was properly served on Henry Wulf, in compliance with equity rule 13. As to Bertha Wulf the return reads thus: "I served Bertha WuH by leaving a copy for her with her husband." Some time after Bertha WuIf commenced her suit, as already stated, the marshal appeared and asked leave to amend his return so as to show that he had served the subpmna on Bertha Wulf by leaving a copy for her with an adult person, a member and resident of the family, to-WIt: her husband, Henry Wulf, at her dwelling-house, or usual place of abode. The defendant Henry Wulf occupied a building at the corner of Virginia avenue and Coburn street, in Indianapolis, both as a dwelling and a family grocery. In the lower story there were two rooms, the main room being occupied as a grocery, and the back smaller room for storage. These two rooms were separated by a hall, which wa,s entered by a door from Coburn street, and also from Virginia avenue through the grocery. A stairway led from the hall to the second story, where the family dwelt, eating and sleeping. The hall and stairway were accessible in both ways, and were, in fact, approached in both ways. The deputy marshal found WuH
· PH<ENIX INS. CO. '17. WULF.
in the grocery and there served the subpama on him, and inquired for his wife, when the officer was informed that it was early in the morning and she was up stairs in bed, where the family lived. The officer then and there, in the grocery, handed to the husband a copy of the subpcena for his wife. Upon these facts was there a valid service on Bertha Wulf, under the thirteenth equity rule, which declares that the service of all subpcenas shall be by a delivery of a copy thereof, by the officer serving the same, to the defendant personally, or by leaving a copy thereof at the dwelling-house or usual place of abode of each defendant, with some adult person who is a member or resident in the family? It is urged by counsel that the officer handed to Henry Wulf a copy of the Bubpcena when he was not "at the dwelling-houso 01' usual place of abode;" that the grocery room was as distinct from the residence in the upper story as if the two had been in separate buildings, wide apart. That construction of the rule is narrow and unreasonable. It is conceded that if the officer had handed the copy to the husband in the hall the' service would have been good, because the upper story was approached only through the hall, and it was therefore connected with the dwelling. There were but two ways of ingress to the residence or upper story; one from Virginia avenue, through the grocery, and the other through the door opening from Coburn street. The fami':" passed in and out both ways, as best suited their convenience. A copy was left with one who understood its contents, and was likely to deliver it to the person for whom it was intended. The case of KibiJe v. Benson, 17 Wall. 625, is cited against the sufficiency of the service. That was an action of ejectment in the circuit court of the United States, for the northern district of Illinois, which had adopted thestatute of Illinois relating to actions of ejectment. After judgment was entered for the plaintiff by default, the defendant filed a bill in equity to set aside the judgment on theground that he had no notice or knowledge of the pendency of the suit, and for fraud. The Illinois statute required that. in actions of ejectment, when the premises were actually
occupied, the declaration should be served by delivering a copy thereof to the defendant named therein, who should be in the occupancy of the premises, or, if absent, by leaving the same with a white person of the family, of the age of 10 years or upwards, "at the dwelling-house of such defendant." On the trial of the equity suit, one Turner swore that when he called at Benson's house, to serve upon him the declaration, he was informed by Benson's father that Benson was not at home, and that while the father was standing near the southeast corner of the yard adjoining the dwelling-house, and inside of the yard, and not over 125 feet from the house, he handed him a copy of the declaration, explaining its nature, and requesting him to hand it to his son, after which the father threw the copy upon the ground, muttering some angry words. There was a conflict in the testimony, but the circuit court decided that even if the copy was handed to the father, as testified to by Turner, the service was not sufficient, and vacated and set aside the judgment which had been entered by default, and this decree was affirmed on appeal. In deciding the case the supreme court says: l'It is not unreasonable to require that it [copy of the declaration] should be delivered on the steps, or on a portico, or in some outhouse adjoining to, or immediately 00nnected with, the family mansion, where, if dropped or left, it would be likely to reach its destination. A distance of 125 feet, and in a corner of the yard, is not a compliance with the requirement." Rule 13 must receive a reasonable construction. It does not require the copy of the subpama to be left with a person in the dwelling-house; it is sufficient if the person who receives the copy is at the dwelling-house. The rule is satisfied by a service outside the dwelling-house, at the door, just as much as inside the house. I think Bertha Wulf was in court when the decree of foredosure was entered. This is not a motion to correct the pleadings, judgment or process. Courts have the power to permit officers to amend their returns to both mesne and final process, and the power is exercised liberally in the interest of justice, especially when the rights of third parties are not to
UNITED STATES 'V. CONNALLY.
be affected by the amendment. In the exercise of a sound discretion they have allowed officers to amend their returns according to the real facts, after the lapse of several years, and when there is no doubt about the facts such amendments' have been allowed after the officer's term has expired. Adams 'v. Robinson, 1 Pick. 461; Johnson v. Day, 17 Pick. 106; People v. Ames, 35 N. Y. 482; Jackson v. O. rf M. R. 15 Ind. 192; De Armand v. Adams, 25 Ind. 455; Freeman on Executions, §§ 358, 359; Herman oli Executions, § 248. I think justice requires that the amendment should be allowed in this case.
UNrXED STATES V. CONNALLY.
(.District Court, D. Indiana.
March 29, 1880.)
WRONGFULLY WITHHOLDING PENSION MONEy-REV. ST. H 4766 AND 5485 CONSTRUED AND HECONCILED.-Section 4766 of the Revised Statutes, which declares that" hereafter no pension shall be paid to any person other than the pensioner entitled thereto," does not conflict with section 5485 of the Revised Statutes, which declares that any person" who shall wrongfully withhold from the pensioner or claimant the whole or any part of the pension or claim allowed and due such pensioner or claimant, shall be deemed guilty of a high misdemeanor." CHARGE OF CoURT-FORM OF QUESTION PUT TO JURY.-Where there were two conflicting theories as to how defendant obtained possession of certain money, it was not outside the province of the court, in commenting upon the testimony, to ask the jury whether one theory was not the probable and natural theory rather than the other.
This case was argued by Mr. Holstein, district attorney, for the government, and Mr. George Butler for the defendant, it being submitted to both judges by though tried in the district court, in order to take the opinion of the circuit judge, who concurred with the district judge. DRUMMOND, J. The defendant was tried before the district judge, on the indictment in this case, and found guilty on the second and third counts, and not guilty on the first, and a motion is now made for a new trial and in arrest of judg. ment.
The indictment is founded on section 5485 of the Revised Statutes. The first count charges the defendant with wrongfully withholding from one Andrew J. Henderson, a pensioner of the 1Jnited States, certain moneys which came to the defendant as an agent and attorney of the said Henderson. The second and third counts charge him with being instrumental in prosecuting the claim of Henderson for a pension, and, being so instrumental in the prosecution of the claim, withholding wrongfully from him certain moneys of the pensioner. The first question made is as to the validity of the counts in the indictment upon which he was found guilty. It is sufficient ordinarily, in cases of a misdemeanor, to allege _he offence in the language of the statute; and to state that the defendant was instrumental in presenting the claim of Henderson for a pension, without setting forth the particular circumstances in which that instrumentality consisted, was all that was requisite in this case. The main offence, if any, was in wrongfully withholding money from the pensioner. The law punishes a person because, being instrumental in the prosecution of a claim for a pension, he is presumed to have a special connection with the circumstances which constitute the gravamen of the charge. And it seems, for that reason, to declare that no person who has this connection with the prosecution of a claim shall be permitted unlawfully to withhold money from the pensioner. '1'here is another question in the case growing out of the legislation of congress as to the description of the offence. The thirteenth section of the act of July 4, 1864, declared that no agent or attorney should demand or receive any greater compensation than that prescribed in the act; and it also declared, in language somewhat similar to a portion of section 5485 of the Revised Statutes, that if an agent or attorney wrongfully withheld from a pensioner any part of a pension or claim allowerl he was to be deemed guilty of a high misdemeanor, and punished as prescribed in the statute. It will be seen that in this section, while the "withholding" fol-