UNITED STATES LOWELL,
J., considered that an objection under this subdivision might be valid "if the acts were at a time so recent that they would affect any of the creditors who can come in under the bankruptcy." Further on he observes that "the fraudulent payments, conveyance, or loss by gaming do not appear to be thus limited, and seem to include all such payments, conveyances, and losses as have diminished the assets which otherwise would have come to the assignee." The tenth subdivision of section 5110 provides that conviction of a misdemeanor under the bankrupt law shall prevent a discharge. Could it be held that such a conviction, to be a valid objection, must have occurred after the creditors' debt was contracted? It seems to me not, but that any such conviction since the passage of the bankrupt act would debar the bankrupt of any discharge under it, though the debt were contracted afterwards; and I am inclined to think that the same extended reach might be given to the other parts of section 5110, which are not limited in time, or to their effect upon specific creditors. It is by no means clear that it was not the purpose of the bankruptcy act to deny its privilege of discharge to all persons who, subsequent to its passage, should by their own acts violate its conditions. In re Gretiew, 5 N. B. R. 423; Inr6 Keefer, 4 N. B. R. 389; Peterson v. Speer, 29 Pa. St. 478. If the act were regarded as a permanent law instead of a temporary one, it might seem an unreasonable construction, and not within its presumed intention, to hold a discharge barred through loss by gaming, where the loss was so long anterior to the bankruptcy as to have no actual relation to the debts or assets involved in the bankruptcy. But if a division of time since the act were attempted, it would often be difficult to fix. any certain rule. It is not necessary to determine the whole question at this time. The evidence as to when the baukrupt lost any of his property by gaming, must, however, be admitted as far back as the origin of any of the debts of the bankrupt; and also to such anterior period,since the passage of the act, in which it may affirmatively appear, or be reasonably supposed, that the assets of the bankrupt which ought to and would have come into the assignee's hands were depleted through such losses.
(Circuit Oourt, D. New HampBhire. May 13, 1S84.)
An indictment need not set out the law upon which the ofJeusewasfounded.
If the indictment contains allegations, recitals, or averments that make it evident that the grand jury acted in finding it upon a statute which had lJeen repealed, the judgment must be arrested.
2. SAME-STATUTORY OFFENSE-STATUTE REPEALED-ARREST OF JUDGMENT.
3. SAME-SUiU'LUSAGE-,ALLEGATION8. Such allegations cannot, though unnecessary, be rejected all surplusage, so as to allow judgment to be rendered under another statute enacted in place of the one repealed.
Motion in Arrest of Judgment. Burns, U. S. Atty., for the United States. H. S. Clark, Sullo way, Topliff cf: O'Connor, for defendant· . CLARK, J. The indictment in this case contains three counts with the same averments and allegations, so far as necessary to be considered here. It was evidently drawn and found by the grand jury upon sections 4786 and 5485 of the Revised Statutes. The first of these sections provides that "in all cases where the application is made for pension or bounty land, and no agreement is filed with and approved by the commissioner as herein provided, the fee shall be ten dollars and no more." That is, the fee of the agent or attorney assisting the application. The other section (5485) declares that "any agent or attorney or other person instrumental in prosecuting any claim for pension or bounty land, who shall directly or indirectly contract for, demand, or receive or retain any greater compensation for his services or instrumentality in prosecuting a claim for pension or bounty land than is provided in the titie pertaining to pensions, .· · ·. shall be deemed guilty of a high misdemeanor, and upon conviction thereof shall for every such offense be fined," etc. The indictment alleges that one Roy waS an applicant for a pension, and that the respondent was his attorney; "that no articles of agreement-setting forth any fee agreed to be paid to said Richard J. P. Goodwin· by said Francis Roy were ever filed with the commissioner of pensions;" "that under the laws of the United States, and the provisions contained in the Revised Statutes of the United States in tM title pertaining to pensions, no greater fee than ten dollars could lawftlllybe received by said Richard J. P. Goodwin for his services in prosecuting the said application of said Francis Roy as aforesaid;" and that "the said Richard J. P. Goodwin unlawfully received from said ROY1for his services in prosecuting said application for a pen-sion as attorn.ey, aforesaid, a sum. greater than ten dollars, to-wit, the sum of sixty dollars." By the act of June 20, 1878, (Supp. Rev. St. 386,) section 4786 of the Revised Statutes, "in the title pertaining to pensions," was repealed, and no provision of law was left in that title to prevent any attorney from taking a larger fee than $10. for services rendered in prosecuting a vension claim. But by the act of June 20,1878, which repealed secticin4186, irithe Revised Statutes, title' "Pensiolls," it was again provided that "it shall be unlawful for any attorney, agent, or other person to demand or receive for his services in a pension case a greater sum than ten dollars." By the repeal of section 4786, section 5485 was rendered inoperative, because there was left no provision in the title relating to 1>en.
UNITED STATES V. GOODWIN.
sions to which it could apply, nor could it apply without further legislation to the act of June 20, 1878; which further legislation was supplied by the act of March 3, 1881, (1 Supp. Rev. St. 602.) The question then is, can this indictment, found at the October term of this court in 1882, be sustained under the allegations in the indict· ment; section 4786 of the Revised Statutes; in the title pertaining to pensions, having been repealed by act of June 20, 1878? The district attorney contends that it can, under section 1 of the act of June 20, 1878, which provides that "it shall be unlawful for any attorney, agent, or other person to demand or receive for his services in a pension case a greater sum than ten dollitrs;" and under the act of March 3, 1881, which makes section 5485 of the Revised Statutes apply and extend to the act of the twentieth of June, 1878. But the difficulty is, that the indictment alleges that "under the laws of the United States, and the provisions contained in the Revised Statutes of the said United States in the title pertaining to pensions, no greater fee than ten dollars" could 181 wfully be received by said Richard J. P. Goodwin for his services, and the act of June 20, 1878, does not answer this allegation of the indictment. It is neither in the Revised Statutes nor iu the title pertaining to pensions. It is a pretty decisive answer to the position to say that the grand jury in this indictment have eharged the respondent with violating the law of the United States as eontained in the title "Pensions" in the Revised Statutes, and not otherwise. . Again, it is argued that the act of June 20,1878, may be regarded Re one of the provisions of the title "Pensions" because it relates to pensions, and it was so held in U. S. v: Jessup, 15 FED. REP. 79Wlind in U. S. v. Dowdell, 8 FED. REP. 881; while the contrary opinion was held in U. S. v. Mason, 8 FED. REP. 412; U. S. v. Hewitt, 11 FED. REP. 243; and U. S. v. Jenson, 15 FED. REP. 138. The weight of authority and argument, it seems to me, is against such contention or construction of the law. '1'he actof June 20, 1878, is neither in the title "Pensions" nor in the Revised Statutes. Again, it is maintained that the offense charged in this indictment is, as alleged, against the laws of the United States, if not against the provisions contained in the Revised Statutes in the titlepertainjng to pensions, and that the words "and in the provisions contained in the Revised Statutes of said United States, in the title pertaining to pensions," may be rejected as surplusage. But that cannot well be. These last words proposed to be rejected limit the extent of the expression "laws of the United States" to the laws of the United States eontained in the Revised Stattltes, in the provisions in the title "Pensions," and point out particularly the law on which this indictment was found by the grand jury. It is never necessary to set forth matters of law in a criminal proeeeding. U. S. v. Rhodes, 1 Abb. (U. S.) 28. But if the indictIneni
set out the offense with greater particularity than is required, the proof must correspond with the averment; nothing connected with the of· fense is regarded as surplusage. U. S. v. Brown, 8 McLean, 233. And it must be that if the law supposed to govern the offense be set out in the indictment, and the grand jury present it to the court as their finding, it cannot be rejected, if erroneous, because it was the ground of. their action. In Butler v. State, 3 McCord, 383, it was held that an indictment need not recite the statute on which it is founded; but if an indict· ment professes to do so, a material variance will be fatal; 01', if the statute does not support the ver,lict, it must fail. If there had been no allegations in the indictment as to the law, the indictment might have been sllstained; but as these allegations make it quite evident that the finding of the grand jury was upon a law which had been repealed, I think that judgment must be arrested. The act of June 20,1878, is a penal statute, and mUElt be construed strictly, and it cannot be held to be a part of the Revised Statutes, title "Pensions," so as to found the judgment in this case upon it.
POTTER, Trustee, v. BERTHELET and another.
(Oircuit Oourt, E. D. Wisconsin.
RULE FOR THE INTERPRETATION OF A CONTRACT.
A contract is to be construed according to the intent of the parties thereto, and b,v looking at all the provisions of the instrument, and not one alone. But, if the language of the contract is plain and unambiguous, interpretation is not allowable to ascertain the intent of the parties thereto. If it admits of more senses than one, it is to be interpreted in the sense in which the promisor had reason to suppose it was understood by the promisee The word" each" occurring in the phrase" and each of them," in a contract, construed to mean ., every."
THE WORD ,. EACH" OONSTRUE!).
A complaint based upon the breach of a contract examined, and held to state a cause of action, and that a demurrer must be overruled.
Demurrer to Complaint. Da'/)is, Rie88 tX Shepard, for plaintiff. Jenkins, Winkler tX Smith, for defendants. DYER, J. In an agreement of date April 11, 1870, made between Edward L. Baker, Henry Knight, and Edwin Dayton, of the first part, and the defendants, Henry and Joseph R. Berthelet, of the second part, it was, among otner things, recited that"Whereas, the following specified letters patent of the United States, granted to secure certain inventions therein set forth, of machines and of improvements in machines, and in mechanical devices for moulding or fonni'1g hydraulic sewer and drain pipes, of cement or of other plastic material,-