to show that the defendant's signature to the note had been procured by fraud was irrelevant, under the issue of non est factum, and the case was affirmed on the ground that the defendant below was guilty of negligence in signing the note, and that the plaintiff below acquired the note after it became due, but from prior indorsees, who, for anything that appeared, to the contrary, were bona fide holders. "But," say the court, "when either party demurs to the evidence his demurrer must be ruled upon according to the practice in this state, in view of all the evidence which has been given in the cause at the time the demurrer was filed." Other Indiana cases were cited in support of the demurrer, but they need not be reviewed, as I think the law is correctly stated in Fowle v. Common Council of Alexandria. In the case in hand, the plaintiff had no right to assume that she had sustained the affirmation of the issue and demurrer to the defendant's evidence. There was no joinder jn the demurrer, which was necessary, and the proper admissions were not made in the demurrer, or upon the record, upon which the court could found a judgment. A new trial is the only solution of the embarrassment.
UNITED STATES V. DAVIS.
Court, D. Massachusetts. - - 1881.)
1. INDICTMENT-REV. ST. § SG23.
An indictment under section 5523 of the Revised Statutes, for a refusal to answer a lawful inquiry of the supervisor of elections, in the verification of a registration list, must aver that such inquiries were made of the defendant at the place assigned by him in such list as his place of residence.
2. SAME-AMENDMENT-REV. ST. § 1025. Such omission is matter of SUbstance, and cannot be aided byamendment under section 1025 of the Revised Statutes.-[ED
E. W. Burdett, for the United States. A. Lawrence, Jr., for defendant.
NELSON, D. J. The defendant has been convi(lted under Rev. St. § 5523, and now moves in arrest of judgment for alleged defects in the indictment. Section 5523 is as follows: "Every person who, during the progress of any verification of any list of the persons who may have registered or voted which is had or made under any of the provisions of title , The Elective Franchise,' refuses to answer or refrains from answering, or, knowingly gives false information in respect to any inquiry lawfully made, shall be punishable by imprisonment for not more than 30 days, or by a fine of not more than $100, or by both, and shall pay the costs of the prosecution." The provisions of the elective franchise title referred to in this section are contained in sections 2016, 2021, and 2026. Section 2026 provides that the chief supervisor of elections "shall require of the supervisors of elections, when necessary, lists of the persons who may register and vote,or either,in their respective election districts or voting precincts, and cause the names of those upon any such list whose right to registel' Or vote is honestly doubted, to be verified by proper inquiry and examination at the respective places by them assigned as their residences. .. Section 2016 makes it the duty of super. visors of elections "to make, when required,the lists, or either of them, provided for in section 2026, and verify the same;" and section 2021 provides for the appointment of special deputy marshals, "whose duty it shall be, when required thereto, to aid and assist the supervisors of elections in the verification of any list of personswho may have registered or voted." These several provisions were originally parts of the act of February 28, 1871, and though separated in the revision of the statutes, they should evidently be construed together to ascertain their true meaning and effect. Taken together their meaning is very plain. They provide for a verification, by the supervisors of elections, under the direction of the chief supervisor, of the lists of persons who may register and Tote in the election districts or voting precincts, and direct the manner in which the verificatIon shall be conducted. It is to be made by the supervisors by inquiry and examination
at the'places assigned in the registration or voting lists by the persons whose names are registered thereon as their places of residence. It is made the duty of all persons found by the supervisors at such places of residence, in the progress of their verification, in response to proper inquiries, to give to the supervisors all the information in their possession in regard to the persons registered as residing there, bearing upon their' eligibility as voters. Neglect or refusal to answer such inquiries, or the giving of false information, is made a misdemeanor, punishable by fine and imprisonment. The inquiries can be lawfully made only at the assigned as residences, and no person is bound, under the penalties of section 5523, to answer the inquiries or give the information elsewhere. The indictment should correspond with the statute, and should set forth the offence according to its terms· .T.he evidence at the trial shpwed that the inquiry of the refused to answer, was suporvisor to the defendant, which place assignedbyhim in the registration list as his place of ,residence. But the indictment fails to aver this certainty, to the rllles of criminal that the supervisor made an pleading. The allegation inquiry, which was a lawful inquiry, of the defendant, which, the unlawfully refused to But it designates no place where the inqniry was made, except that it was made in the.city of Boston. The indictment, therefore, describes no offence punishable by the laws of the United States. The. omission is matter of substance and not of form only, and the indictment is not aided by section 1025, which provides that no indictment shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected, by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant. Judgment arrested.
IN BE MOTT.
(Distrid Oourt,8. D. New York. January 17, 1881.)
ASSIGNEE'S SALE-BoNA FIDE PuRCHASER-ORDER OF SALE.
"to sell the assets hereinafter referred to in each of said matters at public auction, and for cash, by advertising the same one time, 14 days prior to the day of sale, in ,the newspaper called the Times. published in the city of New York," being" all the right. title. interest, etc., of each and either of said bankrupts in and to any and all real estate in any manner described in a certain will of John Hopper," etc. A. died in 1874, leaving a wUl devising the- land. Held, upon petition of 'his devisees to have the sale to C. set aside and annulled: ' (1) That C. and his grantees were entitled to avail themilelvesof all the benefits that may be clajmed by a b01lA fide purchaser upon a judicial sale, no bad faith on Co's part being averred by the petitiollers, and it appearing that he actually paid the price bid, which was 'not alleged to have been inadequate. ' (2) That the order of sale was not invalid merely because it did not fix,the day and hour at:which the sale should The order was a sufficient compliance with section 9 of the'bankrupt act. (3) That the sale was not invalid JIi.erelybecll.use made at a: time to which it was adjourned by, thcassignee. Thiil Was' not an appointment of thetiJ;neof sale ,py the 'contl'a17; to section 9 the act. 14) That a proper construction of the order of sale w,as that the assignee might put up bothA. 'il and B. 's interests for sale together, and therefore the sale was, not,it;rvoaliil because so made. (6) That the order was non,e the less an order of court b.ecause iligned by the judge. 'There is practically no distinction in a l)ourt of bankruptcy between an order of the judge and an order of the court, and whenever the judge acts, his act is thea.ct of the court. (6) That, as the sale was once regularly advertised, the ment did not make a. new 14 days' advertisement necessary. (7) That rules 62 and 70 af the rules of court, specifying certain newspapers in which notice of sale must be published, have no application to sales made under the special order of the court. in re King, 3 FED. REP. 839, distinguished.
Wm. Fullerton and Geo. F. Betts, for petitioners. Douglas Oampbell and E. W. Paige, for respondent.
CHOATE, D. J. This is a petition to set aside and annul a sale of the interest of the assignee in bankruptcy of Jordan