UNITED STATES V. AMBROSE.-
(Oircuit Court, 8. D. Ohio. June, 1880.)
INDICTMENT-DESIGNATION OF OFFICER-ITEMS OF ACCOUNT-REV.
On demurrer to an indictment under section 5438, U. S. Rev. St. for making, as clerk of a United States court, false claims against the government. SWAYNE, C. J. Held: 1. That it is sufficient to charge a presentation to the "First Auditor of the Treasury" without naming the person who held such office. 2. That the different items of an account may all be included in one count of the indictment, and that it is not necessary that there should be separate counts for each false item. 3. Section 5438, U. S. Rev. St., provides that "every person who makes or causes to be made, or presents or causes to be presented, for payment or approval," etc., any claim against the government, knowing it to be false, etc., shall be guilty, etc. In the original statute, (12 St. at Large, 696,698,) from which this section in the Revised Statutes is taken, a semicolon followed the word "made," in the first clause, 'instead of the comma now there, and there was no comma after the word "presented, " whereas in the Revision there is. An indictment under this 5438th section, which charges that the accused did "unlawfully make a claim against the government of the United States," well knowing the same to be false, etc., is insufficient. It should charge that the claim was made "for payment or approval." The changes in the punctuation of the original statute have altered the meaning of this section, and the phrase "for payment or approv(tl" is a part of both the first and second clauses of the section.
-Reported by Messrs. Florien Giaque and J. C. Harper, of the Cincinnati Bar.
IN RE PENNEY.
In re PENNEY, Bankrupt.
(District Oourt, W. D. Pennsylvania. --,1880.)
stipulation in a bond for attorney'& commissions in case of default ill sustained by the supreme court of Pennsylvania.
In Bankruptcy. Sur exceptions of the Dollar Savings Bank to register's report disallowing attorney's commission. Rogers &; Oliver, for Dollar Savings Bank, exceptant. Kennedy &; Doty, for assignee of J oho Penney. ACHESON, D. J. The real estate of the bankrupt having been sold under an order of this court divested of liens, the distribution of the fund arising from the sale was referred to the register, to whose .report the Dollar Savings Bank, a judgment creditor, has filed exceptions. The exceptions are to the disallowance, by the register, of the claim of the bank to attorney's commissions, upon its judgment. The register states, in his report, as the ground for disallowing the claim, that the "commissions were not liquidated in the judgment, and no process was issued for the collection of the judgment." The bond of the bankrupt upon which judgment was confessed provides that in case of default in the payment of the principal debt, or a:::lY instalment of interest, the obligor "shall also pay all fees, costs and expenses of collecting the same, in. eluding an attorney's commission of 5 per centum;" and the warrant of attorney accompanying the bond authorizes the confession of judgment "for the penalty of the said bond, with costs of suit and attorney's commissions, as herein provided," upon any default being made in the condition of the bond. Pursuant to the terms of the bond and warrant, judgment was entered in the court of common pleas, No.2, of Allegheny county, on February 14, 1878, in favor of the bank and against John Penney, the now bankrupt, "for the sum of $40,000, with costs of suit, · · · · to be released on payment of $20,000, with interest from May 1,1877, at the rate of 8 per centum per annum, and 5 per centum attorney's commissions."