27 F. 851 -

SCHULER 11. ISRAEL.

851

as some statute requires it. Oommissioners Lyon Co. v. Goddard, 22 Kan. 389. Before the county can be held liable, default on the part of the treasurer must be alleged, or some interference with him by the commissioners. Commissioners Saline Co. v. Geis, 22 Kan. 381. The plaintiff must rely on section 120 of the tax laws of 1868, for without that the statute of limitations would plainly bar. This provides that if the county clerk discovers that the land ought not to be conveyed, he shall not convey it; and also that the county treas· urer shall, on the return of the tax certificate, refund the tax money. This petition does not allege when, if ever, the county clerk discovered that the land ought not, to be conveyed, or that the tax certificate was ever returned, or offered to be returned. Whether the first matter is a fatal defect need not be determined. The second is vital. Perhaps the failure to return was one of the reasons why the treasurer refused to pay, and the commissioners to make any provision for payment. The lack of funds is not shown to be the only reason for refusal. Only inferentially does it appear that any demand was ever made on the treasurer; the demand is alleged to have been made upon the Leave is given to file an amended petition, with leave to answer.

SOHULER

v.

I ISRAEL

and another.

(Consolidated Cases.)!

(Oircuit OQurt, E. lJ. Mis8ouri. June 22,1886.) 1.
JUDGMENTS-NoTES.

Where judgment is recovered on a note, it is merged and extinguished, and a second judgment cannot be recovered thereon against the same party, in another district. The drawer of a dishonored check is not entitled to be credited with the amount of an unpaid ,decree recovered by the payee against the drawee.

2.

CHECKS-DECREE AGAINST BANK.

3. AsSIGNMENT FOR BENEFIT OF CREDITORS-SALES ON CREDIT. A general assignment for the benefit of creditors, directing the assignee to dispose of the property conveyed with all reasonable diligence, "by public or private sale, for the best price that can be obtained, and convert the same into money," held, not to authorize sales on credit. . 4. BAME-CONFLICT OF LAWS. . An assigument valid where executed, is valid in other states, if not in conof creditors residing therein. 2 flict with the

At Law. Consolidated cases. Suits on check drawn and note made by J. N. Israel in the name of C. W. Israel & Co. Demurrers to answers of Israel and the Laclede Bank, garnishee. The facts, as they appear from the pleadings, are substantially as follows: At the time of the transactions here involved, J. N. Israel
1 Reported

I

by Benj. F. Rex, Esq., of the 81. Louis bar. Bee note at end of case.

852

FEDERAL REPORTER.

did a banking business at Hamilton, Texas, under the name of C. W. Israel & Co., and at Harold and Wichita Falls, Texas, under the name of the Exchange Bank. Each of his three banks had a separate acconnt with the Laclede Bank of St. Louis, Missouri. On October 20, 1885, the amounts held by the Laclede Bank to the credit of Israel's banks were, respectively, as follows: To the credit of C. W. Israel & Co., $12,412.41; to the credit of Exchange Bank of Harold, $1,927.53; to the credit of the Exchange Bank of Wichita Falls, $10,013.15. On that day the check in suit was drawn on the Laclede Bank, in favor of the plaintiff, for $11,250. On October 24, 1885, Israel & Co., being insolvent, made a general assignment, which provided, among other things, that the assignee therein named should, "with all reasonable diligence, dispose of said property herein conveyed, by public or private sale, for the best price that can be obtained, and convert the same into money;" and that "it is understood that this assignment is made for the benefit of only such creditors of the said C. W. Israel & Co. as will and do consent to accept their proportional shares of said estate, and discharge said C. W. Israel & Co." On the same day C. W. Israel & Co. telegraphed the Laclede Bank as follows: "We assigned this day in favor of S. Davidson. Hold funds subject to his order." The Laclede Bank held a note executed in the name of C. W. Israel & Co., for $6,500, which matured October 26, 1885. When it fell due it was charged up to C. W. Israel & Co.'s account, leaving a balance to the credit of Israel & Co. of $5,912.41. The check above mentioned was not presented for payment until October 26,1885, after the bank had debited Israel & Co.'s account with the $6,500 note, and was refused payment because of lack of funds. The accounts of J. N. Israel's other two banks remained unaltered at the time the check was presented. The defense of J. N. Israel as to the note in suit is that, before the commencement of this suit, suit had been brought on said note in the United States circuit court of Texas, and that judgment has been recovered thereon in that suit, and said note merged in the judgment, and extinguished. He acknowledges the execution of the check, but claims that inasmuch as in the suit in equity on said check, by the present plaintiff against the Laclede said plaintiff recovered a decree against the bank Bank, in this for $5,912.41, said sum should be credited on the check. It appears, however, that nothing has been collected on said decree. The plaintiff is a resident of Kansas. Dyer, Lee et Ellis, for plaintiff. Boyle, Adams et McKeighan, for defendants.
BREWER, J. As counsel desire a speedy decision, that judgment may be entered the present term, and the cases taken, together with the equity cases heretofore decided by me, (Schuler v. Laclede Ba,nk, 27 Fed. Rep. 424,) together to the supreme court, I simply state my conclusions:

SCHULER 'V. ISRAEL.

853

1. Judgment having been rendered in the United States circuit court for the Eastern district of Texas on the note sued on, no judgment can be entered here upon the same cause of action. Freem. Judgm. § 221, and cases cited. 2. No objection being raised, personal judgment will go on the check. 3. The assignment is valid under the laws of Tex!1s. Unlike the assignment in the case of Muller v. Norton, 19 Fed. Rep. 719, this does not authorize sales on creqit. It directs the assignee to dispose of the property with all reasonable diligence, and to convert the same into money. 4. Valid in ':l'exas, where it was executed, it must be considered valid here, save as it conflicts with the rights of resident creditors. Burrill, Assignm. (3d Ed.} § 310, and cases cited. Judgment will therefore go in favor of plaintiff against Israel for amount of check and interest, and the Laclede Bank will be disoharged, with oosts, and allowanoe as stipulated. '
   NOTE. In the recent case, In re Waite, (N. Y.) 2 N. E. Rep. 440, the New York Court of Appeals laid down the following rules as to the status of foreign assignees in bankruptcy in the courts of this country: (1) The statutes of foreign states can in no case have any force or effect ex proprio vigore, and hence the statutory title of foreign assignees in bankruptcy car. have no recognition here solely by virtue of the foreign statute. (2) But the comity of nations allows a certain effect here to titles derived under. and powers created by, the laws of other countries, and from such comity the titles of foreign statutory assignees are recognized and enforced here, when they can be without injustice to our own citizens, and without prejudice to the rights of creditors pursuing their remedies here under our statutes: provided, also, that such titles are not in conflict with the laws or the llUblic policy of our state. (3) Such foreign assignee can appear, and, subject to the conditions above mentioned, maintain suits in our courts against debtors of the bankrupt whom they represent, and against others who have interfered with or wit]]held the property of the bankrupt. A voluntary general assignment for the benefit of creditors, made in another state, and valid by its laws, will be recognized as valid and as effectually transferring personal property wherever the same may be situated. In re Page-Sexsmith Lmnber Co., (Minn.) 16 N. W. Rep. 700; Butler v. Wendell, (Mich.) 23 N. W. Rep. 460. But see Richardson v. Rogers, (Mich.) 8 N. W. Rep. 526. An assignment of personal property and choses in action by an insolvent debtor for the benefit of creditors in conformity with the laws of New York, where such debtor resided and did business. to transfer the right of action to recover said choses in action to the assignee, and he may lllaintain an action, 8S such assignee, in the courts of this state, to collect the same, in the absence of any set-off or other defen3e to such action, or of any lien or charge against such elaim. I!'uller v. Steiglitz, 27 Ohio St. 355. A general assignment for the benefit of creditors, made in another state, is valid in 11aine, so far as to protect the assigned real estate situated in Maine from attachment hy a non-resident creditor who has assented to the assignment, and received a part of the benefits thereby secured to him. Chafee v. Fourth Nat. Bank of N. Y., 71 Me. 014. J n Faulkner v. Hyman, (Mass.) 6 N. E. Rep. 849. it is said that an assignment for the henefit of creditors, executed by a citizen of New York to another citizen of that state, and which includes certain property situated in Massachusetts will not be enforced bv the courts of that commonwealth, to affect the rights of parties resident there, who have not assented to the assignment, and who have made an attachment of the property here situate subsequent to the assignment in New York. A deed of between residents of another state, valid according to the laws of the state where executed, is valid as to personall'roperty in Kentucky. J. M. Ather'ton Co. v. Ives, 20 Fed. Rep. 894.
   

854

FEDERAL REPORTER.

UNITED STATES V. SMITH.\

Oourt,

INTERNAL REVENUE -

w: D. North Oarolina.

April 5. 1886.)

INTENT. In an indictment under Rev. St. § 3296, for the removal and concealment of spirits, where defendant pleaded that the spirits had been removed from the designated place of deposit to an adjoining smoke-room, with purpose of preventing waste from leakage, and not with the intent of defrauding the government, the jury are justified in acquitting, if they find that the act of removal was not willful, in the sense not only of voluntary, but also with a bad purpose.

VIOLATION OF LAWS -

WIU,FUL RE}[OVAI, OF SPIRITS-

This was an indictment, tried at April term, 1886, of the district court of the United States, Western district of North Carolina, at Greensboro, North Carolina, Hon. ROBERT P. DICK, D. J., presiding. The defendant was charged in two counts in a bill under section 3296, Rev. St. In the first count, after formal parts: "The said Frederick Smith, late of said district, laborer, did unlawfully and willfully remove one cask of distilled spirits, on which the tax had not been paid as required by law, to a place other than a distillery warehouse provided by law, contrary to the form," etc. And in the second count, after formal parts: "The said Frederick Smith, late of ssiddistrict, laborer, did unlawfully and willfully conceal one cask of distilled spirits, removed to a place other than a distillery warehouse provided by law, and on which the tax had not been paid, contrary to the form," etc. The defendant pleaded not guilty, and a jury trial was had. It appeared in the evidence that the defendant was a registered distiller of brandy from fruit, in the Fifth collection district of North Carolina; that about the first of December, 1885, an internal revenue agent (Kellogg) accompanied by a deputy collector. visited defendant's place of business, and examined his distillery book. Form 25t. and also his designated place of deposit, and there were not the place of deposit to fulfill the quantum shown enough spirits by the book to have been distilled. The agent asked defendant where the balance of his brandy was, and defendant replied, pointing to a small ont-house, "In there." Thereupon the officers examined the outhouse, and found thei'ein three unstamped packages, COlltaining 150 gallons of brandy. It was further in evidence that the said outhouse was built of logs, was undaubed, and that its contents were eXDosed to view from the outside; that the same stood about 11 feet· from the legal place of deposit; that defendant had before this used it for depositing some of his brandy when the regular place was full, or when it became necessary to prevent waste or
1 Reported by James E. Boyd, (late U. S. Atty. for Western district of North Carolina,) of the Greellsboro, N. C" bar.

UNITED STATl<::l! V. SMITH.

855

leakage, and that this bad been done with the knowledge and con· sent of the internal revenue officers; that the designated place of de· posit at the time referred to in December, 1885, was about full; and defendant testified that he had removed the three packages therefrom, and placed them in the outhouse for safe-keeping, and in order.that he might have convenient access to the packages left in the place of deposit, and prevent leakage, etc. The following authorities were cited and commented upon in the -argument of the case: State v. Gilbert, 87 N. C. 527; State v. White.ner, 93 N. C. 590; State v. Harrison, ld. 605; Felton V. U. S., 96 U. S. 699; State V. Barbee, 92 N. C. 820; U. S. V. Kirby, 7 Wall. 482; Lilienthal's Tobacco v. U. S., 97 U. S. 237; State v. King, 86 N. C. 603; U. S. V. Ulrici, 12 Myers, Fed. Dec.666; U. S. V. Three Railroad Gars, ld. 562. Ff.. G. Jones, U. S. Atty., for the United States. James E. Boyd, for defendant. After the close of the argument, his honor, Judge DICK, delivered the following charge to the jury:
Gentlemen of the Jury: When the testimony was closed in this case, I requested the counsel io make as careful an examination of legal authorities as they could during the recess of the court, and submit to me arguments upon the questions of law involved. You have heard the legal arguments, and .also arguments upon the matters of fact presented by the evidence, .and you are nOw prepared to receive the instrnctions of the court upon the material questions of law so fully discussed. I will not recapitulate the testimony, as there is not much con· flict, but leave all questions of fact entirely to your determination. The law is a· system composed of maxims, rules, and principles which have been devised and adopted for the purpose of securing and regulating business transactions, social relations, and political order among men. The elements of the law are founded in reason and natural justice, and are the outgrowth of human experience, knowledge, and wisdom, developed in the course of ages. It has been well said that "the reason of the law is the life of the law." Justice is the spirit -of the law, and Christian civilization has adorned it with many principles of humanity and benevolence. I will briefly consider and explain some of the familiar general rules ·of the law which have been l'eferred to in the course of the argument ·of counsel. In all trials for crime the prosecution must prove, beyond a reason· .able doubt, the truth of every fact essential, in point of law, to con· stitute the offense charged in the indictment. This rule has long ex· isted, and is founded in natural justice and humanity; as all good and just men feel that,when such a doubt exists, it is better for the welfare of society to acquit than to condemn.. Every person accus4;jd