services which he was entitled to be paid for, and if this pensioner agreed to let him have it upon the coming of his money; if he agreed, knowing that the money was there, that Hewitt should retain $200 for these professional services,-then, in my judgment, there was no unlaw· ful withholding. It was a debt that he owed-an honest debt. But if that was an after-thought on the part of the defendant to cover up the retention of $200 which he originally intended to have received for his services as a pension agent or attorney, that is for you to say. Now, what is the truth of that matter? Had this defendant, Hewitt, at the time of that settlement, performed such professional labor in other matters for .tbis poor man that $200 was a fair and honest compensation forbis labor, because there is no pretence that there was any contract as to the amount. Hewitt says that Barnes agreed he should retain it, and Barnes denies it. You have heard the testimony of all the witnesses. Is that an after consideration, or was it an agreement made at the time in good faith? Now, I wish, gentlemen, you to consider this case in the light of the testimony and tell the court what your views are on those two points. H the evidence and law justify it, we all desire that the defendant should be acquitted. Give tbe defendant the benefit of all reasonable doubts, and if, after careful consideration, you come to the conclusion that in point of fact this defence is made out, then bring in a verdict of not guilty. H, on the other hand, you think they have failed in that defence, it is your duty to convict him without regard to the consequences. The defendant was acquitted.
UNITED STATES 11. MOORE.
(Circuit Court, D. New
Where an exception is contained in the same clause of a statute creating an offence and prescribing its punishment, the indictment must show that the act or person is not within the exception; but if the exception or proviso bc in a subsequent clause, or a subsequent statute, it need not be stated in the indict· ment; it is mere matter of defence.
UNITED 8TATES V. MOORE.
SAME- VARIANOE BETWEEN PI,EADING AND PROOF.
Where nn indictment bronght unoer the statute of March 3, 1865, (13 St. at Large, 481,) charges the defendant with issuing an unstamped receipt for the payment of money, and the evidence shows that it was a receipt for the puyment of a debt, it was held, Dot a variance.
UXSTAMPgD HECEIPT-INDIC1'MENT SUFFICmN'f.
An indictment charging the defendant with issuing an unstamped receipt is snfficil,nt if it sets out the offence in the language of the statute. It is the giving of a receipt for a sum exceeding $20, and not the payment of the money, which requires a stamp.
U. S. Atty., for the United States. Barnard d' Sltnborn, for respondent. CLARK, D. J. This is an indictment against the respondent for issuing a receipt for the payment of moneY>rithout putting upon it a. stamp of two cents. It is founded upon the statutes of March 3. 1865. § 1. (13 St. at Large, 481,) which is as follows:
"That any person or persons who shall make, sign, or issue, or who shall cause to be made, signed, or issued, any instrument, document, or paper of any kind or description whatsoever, or shall accept, negotiate, or pay, or cause to he accepted, negotiated, or paid, any bill of exchange, draft, or order, or note, for the payment of money, without the same being duly stamped, or having thereupon an adhesive stamp for denoting the duty chargeable thereon, with intent to evade the provisions of this act, shall, for every such Ol'FE"CE, forfeit the sum of $50, and such instrument, document, or paper, bill, draft, order, or note shall be deemed invalid and of no effect."
The act of July 13, 1866, (14 St. at Large, 144,) provides for the amount of tax imposed on receipts in these words:
.. Receipts for any sum of money, or for the payment of any debt, exceeding $20 in all IOn nt, not being for the satisfaction of any mortgage or judgments, or decree of any court, or by inclorsements on any stamped obligation of its fulfilment, for each receipt, two cents."
Upon the trial of this indictment the respondent was found guilty. He now moves for a new trial and in arrest of judgment. New trials arc granted for something wrong at the former trial, as the admission of incompetent testimony, the misbehavior of the jury, or wrong rulings and instructions of the judge; also for other reason, as the discovery of new and important testimony. They are within the discretion of the court, and are to be granted only in the furtherance of justice. l'vlcLanahan v. Universal Ins. Co. 1 Pet. 107; Gray v. Bridge. 11 Pick. 189. Judgments are arrested for matters apparent in the record. ElL?'net v. BallaJna. 2 Nott & McC. 435; State v. James, 2 Day. 215.
Some of the exceptions of .the defendant are to matters of record, and some are to the rulings of the court. We will consider them in the order in which they have been stated by the counsel for the respondent in his brief. 1. That an indictment will not lie in this case. It is provided by the act July 13, 1866, (14 St. at Large, 145,) that "all fines, penal. ties, anq, forfeitures which may be imposed or incurred shall and may be 8ued for and recovered, where not otherwise provided, in the name of the United States, in any proper form of action, or by any appropriate form of proceedings, before any circuit or distriCt court of the United States for the district within which said fine, penalty, or forfei'ture may have been incurred;" and there is a further provision that the informer shall have a certain portion of the fine, penalty, and forfeiture recovere'd. There is no doubt of the position taken by the defendant, that where the statute which creates the offence prescribes the particular mode of proceeding or form of action, that mode of must be followed. That point is well settled. But in this statute there is no mode of proceeding or form of action mentioned. The proceeding must be in t4e name of the United States-in any proper f(YNfl, of action (Yf' by any appropriate form of proceeding. Now, is not an indictment an appropriate mode of proceeding? Is it not effectual and speedy for the government? Is it not safe for the respondent? Does he object that, before he is put on his trial, 16 or more of his fellows composing the grand jury must say he ought to be tried? Why is it not quite as appropriate as an action of debt? In either case the suit must be in the name of the United States, and carried forward by the same officers of the government and in the same courts. The statute on which this indictment is founded provides that any person who shall issue any writing wit.hout the required stamp shall forfeit $50. The respondent contends this forfeiture can only be recovered by action of debt. It is a general rule that where a statute either prohibits a matter of public grievance, or commands a matter of public convenience, every Buch disobedience is indictable. State v. Fletcher, 5 N. H. 257; 3 Bacon, Abr. 549; Arch. Cr. PI. & Ev. 1; 1 Chitty, Cr. Law, 162. Injuries of a private nature are not indictable. 3 Bac. Abr. 549. This is not an injury of a private nature. It is a defrauding of the government-of public nature-a misdemeanor; also all misde. meaJ;lors of a public llvil example are indictable. The statute calls
UNITED STATES V. MOORE.
3 Bac. Abr. 549; 1 Russell, Crimes, 45; Rex ris,4 T. R. 202; Rex v. Smith, 2 Dav. 441. It is quite true that where it is merely provided that if any person do a certain act he shall forfeit a sum, to be recovered by action of debt, etc., no indictment can be supported. 1 Chit. Crim. Law, 162. The specific mode there pointed out must be observed, but in this statute no mode is pointed out. In a subsequent statute (act of July 13, 1866; 14 St. at Large, 145,) it is provided that "all fines, penalties, and forfeitures which may be imposed or incurred shall and may be sued for and recovered, where not otherwise provided, in the name of the United States, in any proper form of action, or by any appropriate proceeding," etc. This is no limitation of the prosecution to an action of debt, or other specific mode of procedure, but is quite broad enough to cover an indictment. But it is contended that the language of the statute is "may be sued. fM"," and that these words limit the action to a civil suit. To sue means to prosecute; to make legal claim; to seek for in law. Such are the definitions given by Webster. Bouvier says (vol. 2, p. 558, word, "Suit") that "in its most extended sense the word' suit includes not only a civil action, but also a criminal prosecution, as indictment, information, and a conviction by a magistrate." An application for a prohibition has been held to be a suit. 2 Pet. 449. Bacon says (vol. 3, Abr. p. 542) that "an indictment is defined as an accusation at the suit of the king." Again, (p. 544,) "that it is a prosecution at the suit of the king merely;" and, again, "it being the king' 8 8uit." The words "sued for and recovered," in the statute, mean the same as "prosecuted for and recovered;" and, taken in connection with the expressions "any proper form of action," "or by any appropriate pro. ceeding," cannot be held to exclude a suit or prosecution by indict· ment, as the proceeding must be in the name of the United States. 2. The next objection is that the indictment is defective "in that it does not show the receipt given was not given for the satisfaction of some mortgage or judgment, or a decree of some court, nor for money indorsed on a stamped obligation, such receipts not· requiring a stamp. The rule of law in cases of this kind is very clear that, when the exception is contained in the same clause of the act which creates
it an offence.
the offimce, the indictment must show that the act or person is not within the exception. Arch. Crim. PI. & Ev. 48, and cases there cited. But it is equally well settled that if the exception or proviso be in It subsequent clause or a subsequent statute, it need not be stated in the indictment, but is a matter of defence. King v. Hale, 1 T. R. 320; Arch. ubi supra, 48. Now, in this case, the exception is not found iu the clause of the statute creating the offence, nor in that statute, to-wit, the act of March 3, 1865, (13 St. at Large, 481,) but it is found in the act of July 13, 1866, (14 St. at Large, 144.) The exception, therefore, need not have been set out in the indictment, and this objection cannot prevail. 3. The next objection is that the indictment calls the receipt in question a receipt in payment of mouoy, while in truth and in fact, the respondent contends, it was a receipt for board and horse hire. The receipt was in these words-the statute says: "Receipts for any sum of money, or for the payment of any debt." The respondent contends that this is a receipt for the payment of a debt, and that so there is a fatal variance between the indictment and the proof. But we think the receipt is also, or as well, for a sum of money. There appears to have been a debt, which was discharged by a sum of money, and the receipt is for that money in payment of that debt. If there had been nothing in the receipt to show that the payment of the debt was in money, perhaps the conclusion might have been different. 4. A further objection is that the indictment charges "that the receipt was issued without having thereupon an adhesive stamp of two cents for denoting the tax chargeable thereon," etc. This, it is contended, is insufficient, and it is insisted that the allegation should have been "an adhesive stamp of the value of two cents." It is a sufficient answer to this objection to say that the indictment l1uswers all the requirements of the statute. The words of the statute are, (13 St. at Large, 481,) "without the
same being duly stamped, or having thereupon an Q,dhesive stfl,mp for denoting the duty chargeable thereon." Now, the duty or tax on receipts is two cents, (14 St. at Large, 144,) not the value of two cents, and the
indictment follows the statute. Another objection is that the court improperly ruled that the receipt might go to the jury as evidence of the payment of $41. The respondent contended it was evidence of the payment of only one dollar. But the court instructed the jury that they might consider
SOUTHERN PAC. R. CO. V. DOYLE.
the receipt as evidence of the payment of the whole sum of $41. It is not the payment of money which requires a stamp; it is the giving a receipt for a sum exceeding $20. Now, there may have been two or more payments of money, and one receipt to cover both. It is contended that it does not appear but that a receipt duly stamped was given when the $40 was paid, and so no stamp was necessary for the receipt of one dollar. That might be so; but, if it had been, the respondent could have shown it in defence, and completely rebutted the evidence arising from the receipt itself that it was for the payment of $41.
CO. V. DOYLE.
'Oircuit Court, D. Oalifornia.
April 3, 1882.)
MORTGAGE-CONVEYANCE IN TRUST.
The conveyance of lands by the Southern Pacific Railroad Company to Mills and Tevis, in trust, to secure the payment of certain" first-mortgage bonds," in the usual form of a mortgage, except being to trustees, with a condition of defeasance, providing that upon the payment of the bonds" this indenture and the estate hereby granted shall cease and determine," etc., reserving to the grantor the" sole and exclusive management and control" of the lands, and only providing for an entry, foreclosure, and sale by the trustees upon default and subsequent demand by the bondholders, is in substance and law a mortp;age unrler the California Code; and the right of posse"sion until default, and a demand by the bondholders, remains in the mortgagor or grantor.
MORTGAGE, SALE UNDER-RIGHT OF POSSESSION.
Under tlle Code, a mortgage may confer a power of sale upon the mortgagee, "or any other person," after breach of the obligation secured. Where the power is conferred upon any person, other than the party secured, it necessarily embraces a trust; but it does not necessarily give a right of possession to the trustee, at least not before condition broken.
TRUST DEED-RIGHT TO POSSESSION UNDER.
If t.he instrument in question, under the Code, is strictly It trust deed, rather than a mortgage, the rcsult is the same in either case; for it conveys no right t6 the possession, management, or control of the lands upon the trustees till after default, and a demand by the bondholdcrs.
4. ExPIlEss TllUBTB. Express trusts may be created to sell real propcrty and apply or dispose of the proceeds, but only" in accordance with the instrument creating the trust;" and, in this instance, the lands convcyel by the terms of the ded are left in the sole and exclusive managc;ncnt, cumrul, and possession of the grantor till defanlt and demand. 5. Under the Code, every valid express trllRt vests the title, suhject to the execution of the trust, in the trustees, and not in the beneHciaries.