UNITED STATES V. DEAVER.
defendant would be entitled to a decree 'over against the principal debtor. The latter is therefore a necessary party 'to this suit, for the that it may make its defense, if it has any; and, secondly, to the end that if it has no defense, and a decree shall be rendered against the defendant herein, the latter may, without the expense and delay incident to the institution and prosecution of another and independent action, have his decree over against the corporation. We think, furthermore, that all the other parties to said agreement ought to be before the court. Complainant's claim is that defendant's intestate's estate is liable for its whole demand. We not determine, at this time, how this is. It is for the present enough to say that such is complainant's contention. If the position is correct, each of the other parties to said agreement is in equity bound to contribute his proportiona.te part. Other equities may arise in the progress of the litigation for adjustment; but no such full and final adjustment could be decreed in their absence. The demurrer is therefore sustained. Complainant will be allowed 60 days in which to amend its bill and make new parties, or else show some good and sufficient· reason for not doing so. lf such· amendment shall not be made within the time allowed, complainants' bill will be dismissed with costs.
Nat. Bank of Portsmouth, Ohio, v. Hannon, Adm'r, etc., 4 612, where it was held that an action at law could not be maintained upon the contract Bet out in the opinion reported above.-[REP.
UNITED STATES 'V. DEAVER.
(Distriet Oourt, W. D. North Oarolina. 1882
Extortion is the taking or obtaining of anything from another by a public officer by means of illegal compulsion or oppressive exaction. The offense of extortion, under 8utldivision 1, ; 3169, of the Revised Statutes, is the same a, the offense of extortion in the common law.
Oppression is an act of· cruelty, severity, unlawful exaction, domination, or use iii! excessive authority.
3, S.\ME-Bv OFFICER.
To make an act oppressive on t.be PIlrt of an. officer under the statute, it must be done WillfUlly, CJlOt' III lollV, ' aud "WHhout legal authority."
l!'OROE-AUTlIORITY OF OFFICERS.
Where an officer willfully and knowingly makes false representatIOns to his snperior officers as to the violent and lawless condition of the country, and thus in.l,wc, his supet'itJr o:!icera to send soldiera, which were unnecessary for the execution of the law. he is guilty of oppression. The law invests its oflkers with the necessary power to execute its mandates, and afIords them protection while properly performing official duties. 5.
SAME-AcTS WITHOUT AUTHORITY OF LAW.
The de3truction of a still by a revenue olficcr, before it lad hecn condemned by a proper decree of the court as forfeited to ttl" United IS an act of opprc,sion, as it is without authority of law.
6. SAME-ltEVENUE OFFICERS.
Where a revenue officer collects from parties sums of money as special taxes, as wl1:llesale and retail dealers in spirits, when no such taxes have beeu regularly assessed against them, he is guilty of oppre3sion. although such parties had beel1 guilty of selling spirits at wholesale antI retail without a license, as required by law; and the fact that he reportcd such taxes to the collecLor of the dist.rict as received, and the collector of the district, in his settlement with the revenue department, was requiredto,pay the sums·collected after the manner of their collection was fully known to the department, will not render legal the acts of Lhe defendants knowingly and willfully done, without authority of law.
The principle and policy of the com'llnn law, that a ministerial officer who had arrested a person, and who takes from such person money, or other reward, unier a pretense or promise of getting the olIender discharged, is guilty of a criminal olIense, was intended to be extended, by subdivision 10 of section 3169 of the Revised Statutes, to the officers of the revenue; and any subordinate re"l'enue officer whodemanets or accepts, or attempts to collect, directly or indirectly, as payment or gift, or otherwise, any sum of money,or other ·thing of ,-alue. for a compromise of the violation of the revenue laws, is guilty ofa misdemeanor.
An in(lictment founded upon the first and tenth subJivisions of sec,on 31(\9 of the Revised Statutes. James E. Boyd, Dist. Atty.;for the United States. C. llJ. illcLoud and James W. Gudger, for defendants. DICK, D. J., (chargingjurY.) This is the first time that it has been I ny duty in the course of a tri.al to construe this statute, and I.am tiot awa:re· of any direct judicial decision upon the subject. I win endea'lor to ascertain the meaning of the statute by applying certain well-settled rules of construction whjch have boen adopted by the ,ourt s and learned text- writers. .. . In the construction ofa statute we should endeavor to find the intent, object, and purpose of the legislature in enacting the law, and th)sm\lst he done by considering the words, the context,and subject-matter.Gener.a.lly. words must be taken int4eir ordinary and familiar signification, when they have acquil'ed a legal and tech-
nical signification we must presume that the legislature used them in their legal and technical sense. 'The ordinary meaning of the word "extortion" is the taking or obtaining of anything from another by means of illegal compulsion or oppressive exaction. If an officer of the law ba,; 11 prisoner in custody, and either by promises or threats him to make a confession of crime, such confession is regarded as extorted or forced, and is not admissible in evidence against the. prisoner. If such confessions are made to a person not in authority, . and in no way directly connected with the prosecution, the strictness of the rule is somewhat modified. ,The word "extortion" has acquired a technical meaning in the common law, and designates a crime COmmitted by an officer of the law, who, under color of his office; unlawfully and corruptly takes any money 01' thing of value that is. not, due to him, or more than .is due, or before it is due. The officer m,9st unlawfully and corruptly receive such money or ,article of. vaLue for his own benefit or advantage. We may well infer that congress used tbis word in its restricted and teclmical seuse, as in the same olause t,he word "oppression" is used, which,h8)s & morflexteusivesignification, and will embrace many other acts of official malfeasance and misfeasance. If a judicial officer, in the discharge of his official func,tions, PI1 Y,tially, maliciously, and corl;uptly, he was indictable at common law for the crime.of oppression in a.ffice. Gross :misconduct on the part of an inferior or ministerial officer was denQJJlinated malfeaslj,llce" or misfeasance in office.. Ifa ql,inisterialofficer ties a per" son for. some petty Qffense who makes nQ resistance, but quietly sub· mits to legal authority, there would be a stroug presumption tpat the of'fiGeracted from motiv.es of oppression; but if the was a. man of desperate a:ud lawless ,Qharactfjr, and purpose to resiRt or escape, and .he is charged with a s.erious crime, then it would \.Ie the duty of·the(l.flicer to secure the prisoner by lneans in his power; , .The wQrd"oppression" haanot acquired a strictly technical mean" IS ing, a,nd may in this statute be takeu in its ordinary: au act ofc;:ruelty, &everity, llulaWfulexactiQu, \lominatIon, or tlseofantbority. Wheoa· revenue officer, under ,color of fully and' unlawfully takes. ,the ,property of another, or him to greater hardships than are· necessary for. the prOPef euforceInent of the law, he is guilty of oppression. It is not essent.ial unlawful.act should bea serious a to make it oppr<:ssi \'C. The exercise of unlawful power other means, in de·
priving an individual of his liberty or propr-rty against his will, is generally an act of oppression. One of the wisest and best rulers that ever governed ancient Athens was called a tyrant because he exer':lised sovereign power contrary to the constitution and laws of the state. He established justice, insured domestic tranquillity, and promoted the general welfare of his people, and yet his numerous beneficences did not atone for his usurpation of authority, and his . name, fame, and splendid achievements are associated in history with the odium of tyranny. In some instances a person may be deprived of his rights and his property without the ordinary process of law, and still the acts not be official oppression. I· will illustrate this position by instances which have sometimes occurred in the courts. A person willfully and unlawfully does some serious bodily injury to another. He may be indicted for a crime against the peace and dignity of the state, and he is also liable to an action for the civil injury. If he is indicted and convicted of the crime, the judge, before passing sentence, may properly tell the defendant that if he will make suitable compensation for the civil injury the sentence will be greatly mitigated. The defendant acts upon this suggestion, and pays a large sum of money by way of compensation to the injured party.. In such a case. the defendant is deprived of his property without the right of trial by jury, ahd yet this is not judicial oppression; and auch proceedings have'often been adopted in the courts of the common law, both in this country and in England. At the federal court in Greensboro some time ago a number of tobacco manufacturers were indicted for violations of the internal-revenue laws. They became satisfied, from the careful preparation of the cases by the assistant district attorney, that they would be convicted, and they pleaded guilty, and on suspension of judgment offered terms of compromise to the commissioner of internal revenue. The terms offered were not accepted, and a sum of money was exacted by way of compromise which made nearly all of the defendants insolvent; and yet these proceedings were not acts of officialoppression, as they were done under authority of law. The defendants accepted the terms to avoid the severe punishments to which their violations of law had subjected them. In this court there have been frequent instances of defendants guilty, or, upon conviction, paying sums of moneyby way of eompromise, or in lieu of in order to obtain suspension of judgment on the crimes charged.
,To make an act' oppressive on the part of l;LP. 'officer, under this stat· ute, it must be done willfully, "under color and without legal authority. You must carefully consider all the evid,ence relating to the several counts in the indictment upon this clausF of the statute, and if you are fully satisfied from the that the defendant, under color of his office, exacted.. and received any money or thing of value from the persons named in the indictment, for his own benefit or advantage, which was not due to him, or more than was due, or before it was due, then you mJ.y properly find him guilty of extortion as charged in the indictment. If you are satisfied beyond a reasonable doubt that the defendant, under "color of law," illegally, unjustly, and willfully deprived the persons named in the .indictment of their property, or used unauthorized or excessive force towards them in the transactions mentioned, then you may properly find him guilty of oppressiQn under color of law. It was insisted by the district attorney that the in using unnecessarily the regular soldiers of the government, was guilty of an act of oppression, as the force was excessive. ' The soldiers were sent by a superior officer at the request of the defendant, ang. under orders from the proper departmellt at Washington. While I do n9t approve of the use of, soldiers in the execution ,of t,he ,process of law courts, I will take it for granted, for the purposes of this trial, that the offi· cers at Washington, in ordering the soldiers to be sent to the defendant', did not exceed the limits of their constitutional and the defendant was not guilty of Oppression, up.der color of law, if he used the soldiers properly in accomplishing purposes intended., ' If however, the defendant willfully a.ndknowipgly made fallile representations to his superior olficers as to the and, lawless condition. of the country, and thus induced his superior officers to Bend soldiers, which were unnecessary fOr the proper execution oftheJaw.,then hE;) was guilty. of an act ,of ,oppression, as the mere presence ':'f a companyof soldiers was excessive force in a peaceable community; and was, well calculated to produce disquietudealld alarm a lawabiding people., who had so recently witnessed the disorder astation of war. The peace, security, and well-being of and the very existence of political government, require that the la",sof the land should be speedily and effe(ltually enforced. For these purposes the law invests its officers withtbe necelil!?aryauthorityand power for tue effectual execution of its ml;l.ndates, and it affords them all the protectioo;pos!iible iu the rightful performance; of the duties imposed.
Sheriffs and marshals have the authority to appoint nece!>sary deputies to assist them in the execution of process, and they may also summon the posse cOIn'itatus for such purpose. Collectors, deputy collectors, and revenue agents are authorized to make seizure of property. for violations of the internal-revenue laws, and the commissioner of internal revenue is empowered to furnish them the necessary force to enable them to perform their official duties. We frequently hear of revenue officers and agents, well armed and in large numbers, making what they call "raids" through the country. When the emergencies of the service require it, all officers of the law should carry with them such assistance as will tend to prevent lawless resistance, or enable them to' easily overcome resistance if made. They are not required to risk their lives in an equal rencounter with lawless and desperate men, or desist from the pedormance of duty when armed resistance is made. The law must be supreme in its appropriate sphere, and its officers, in the execution of its mandate, may use just such force as may be necessal'y to accomplish its purposes. If they use excessive force, then their acts are unjustifiable and oppressive. If an officer acts honestly, and without any malice or corruption, the force used must appear to be clearly excessive before he is deemed guilty of oppression under color of law. You have heard the evidence as to the existence of the violations of law in the section of country in which the defendant was performing official duty, and as to the character and disposition of the citizens of that community ; and it is for you to say whether there was such a condition of insubordination and lawlessness as to justify the proceedings of the defendant. It was further insisted that the defendant, in cutting and destroying the sWI of John Wortman before it had been condemned by a proper decree of this court as forfeited to the United States, was guilty of an act of oppression, as he acted without authority of law. The still had been used in the illicit distillation of spirits, and was found in a still-ho'use, and was liable to forfeiture at the time of the unlawful use, bilt the seizure did not make the forfeiture absolute. The owner was' entitled to be heard in proper legal proceedings before his property could be condemned as forfeited. The act of congress authorizing revenue officers, upon certain conditions and under certain circumstances, to destroy illicit stills, had not then been passed. The destruction of said still was, therefore, without authority of law, and the rule of law is that when an unlawful act is done by a .person, there is a presumption of an unlawful intent; but this
UNIT.ED STATES V. DEAVER.
presumption may be rebutted by facts and circuillstl\nces showing that there was no actua;l unlawful intent. The correspondence between the defendant and the revenue department upon this subject and if this evidence satisfies you that has been read in your the defendant acted without any unlawful intent, then the presumption of law is rebutted and the defendant is not guilty in this matter, as there must be an unlawful act done with an unlawful intent to constifute crime. It was further insisted thattbe defendant was guilty of an act of willful oppression under color of law in collecting from the parties named in the indictment sums of money as special taxes as wholesale and retail dealers in spirits, when no such taxes had been regularly assessert against them. The said parties had been guilty of selling spirits at wholesale and retail without license obtained as required by law. The defendant reported such taxes as received to the collector of the district, but tbe same were not reported by the collector to the revenue department at Washington until after the commencement of this prosecution. The collector, in his settlement with said department, was required to pay the sums collected, after the manner of their collection was fully known in the offices of the department. This payment did not render legal the acts of the defendant, if he acted, knowingly and willfq.lly, without authority of law. The department had the power to have such taxes assessed against the parties named for selling spirits at wholesale and retail without license. You have heard read the correspondence between the defendant and the revenue department upon this subject, and if you believe that he was instructed or authorized to make such collection of special taxes then he cannot be held criminally liable. Tho defendant, without any warrant of distraint, advertised the lands of some of the parties named in the indictment for sale for non-payment of the special taxes referred to. The lands were not sold and the possession of said parties was in no way disturbed. This was not an act of oppression, as it resulted in no injury; but it may be considered in connection with other acts as tending to manifest So purpose of oppression on the part of the defendant. This court has no jurisdiction over crimes, except those defined and declared by a statute of the United States. It never enters the broad fields of the common law to investigate and puniSh offenses committed by its officers, unless provision is ma.de for such proceedings by a federal statute. It looks to the common law for instruction and guidance as to the forms and modes of procedure in a.
criminal trial, but never as a source of jurisdiction in matfers of crime. This indictment is founded upon a federal statute, and the defendant cannot be convicted except for acts of misfeasance and malfeasance mentioned in the statute, and distinctly and positively charged in the indictment. It is therefore unnecessary for me to consider the able arguments of the district attorney and the authorities cited by him as to the offenses of officers at the common law which are not embraced in the statute and indictment before us. I will now give you my construction 6f the tenth subdivision of the statute, upon which'some of the connts in the bill of indictment are fminded. At the common law it was an offense against the administration of justice for a ministerial officer who had arrested a person to take lrom him money or other reward under a pretense or promise of getting the offender disdharged. Such an act was justly regarded as a gross impropriety and breach of duty on the part of an officer employed by the government to assist in the enforcement of the law. The officor could not properly receive any compensation in such matters except his lawful fees. The statute before us was intended to extend this wise principle and policy to the officers of the revenue. They cannot receive anything in the course of official duty except the compensation allowed by law; and they cannot rightfully do any act which ianot authorized by law, under color of office. They have no authority to make compromises of any charge or complaint for any violation or alleged violation of the revenue laws. Such authority is alone intrusted to the commissioner of internal revenue, acting with the advice of the secretary of the treasury. If, therefore, any subordinate revenue officer demands or accepts, or attempts to collect, directly or indirectly, as payment or gift, or otherwise, any sum of money or other thing of value for the compromise of a violation of the revenue laws, he is guilty of a misdemeanor under this clause of the statute. Before you can find the defendant guilty under this count, you must be fully satisfied from the evidence that he agreed to make a compromise as charged, and received in consideration of such agreement some thing of value for his personal benefit. You have heard the evidence and the comments of counsel upon this point, and it is your duty to determine whether this clause of the'statute, as construed by the court, has been violated by the defendant. If you have any reasonable doubt upon the sub· jectyou should give the benefit of that doubt to the defendant. Upon a trial for crime the law presumes the defendant innocent, and that presumption remains as a protection to him until removed by evi-
dencethat satisfies a jury, beyond a reasonable doubt, as to his guilt. In delivering this charge I ha",e carefully endeavored to avoid any expression or intimation of opinion as to the weight of the evidence. You should not in any degree be controlled in your verdict by any conjectures which you may make as to the opinion of the court upon questions of fact. The evidence should alone control you upon such questions, and I believe that you will render an honest and just vernict. '
GRAHAM v. SPENCER.
(Circuit Court, D. Massachusetts. December 20, 1882.)
Where a foreign judgment is sued on or is set ul' in bar, the party supposed
to be bound by it may aver and prove, even in contradiction of the record, any
jurisdictional fact appearing therein, as that he was not a resident within the territorial jurisdiction of the court rendering it; that he was not Personally served with process within that jurisdiction i and that the attorney who appears for him had no authority to do so.
2. JURISDICTION-By ATTACIIMENT.
An attachment givcs no jurisdiction over the person: and a law of the state Mnnot authorize its courts. to enter judgment against a non-resident not served which will be valid even against property within the state, except such as has been attached on m8Sn61»'0C68s.
The appearance of a non-resident defendant by attorney, to plead to the jurisdiction of the court only, and the withdrawal of such appearance by leave of court, is not a submission of defendant's to the jurisdiction of the court, but leaves the case as if there had been no appearance.
SAME-A.UTIIOIlI'I.'Y OF AT'I.'ORNEY.
A record which shows an appearance by attorney may be explained by proof that the attorney was not authorized to submit the defendant to the jurisdiction of the court.
Ii. JUDliMENT-H.ES AbJUDICATA.
The judgment of the state court overruling the plea to the 'jurisdiction, was not a decision upon the question of the submission of defendant's person to the jurisdiction sO as to make it res adjudicata.
At Law. Trial by jury having been waived, the court found the following facts:
This is an action upon a judgment rendered in the county court at Windsor, Vermont, at the term which began December 2, 1873, for the plaintiff against the defendant, for $3,880 debt, and $33.01 costs of suit, and interest amount-