UNITED STATES .,. KINDRED.
43
that there was in this case a substantial compliance with the rule of practice, and that the error of date is immaterial and cannot have misled the defendant. In fact, there· is no other act of eongress containing a title 60, c. 3. except that approved June 20, 1874, and that act is suffioiently and properly referred to as an "Act to revise the statutes," etc. Motion denied.
UNITED STATES 11. KINDRED.
(Oircuit Oourt, E. D. Virginia. 1. JUSTICE OJ!' TIm
December 10,1880.)
PEACE-ACT OJ!' CoNGRESs-INDIC'fMENT-F'EDlllRAL CoURT.-The wilful and corrupt violation of an act of congress by a. justice of the peace of a. state, in the exercise of his office, will render him liable to indictment in federal court.-[ED.
Motion to Quash Indictment.
L. L. Lewis, U. S. Att'y, appeared for the prosecution. John Lyon, for the defence, relied in support of his plea, demurrer, and motion on Broom's Legal Maxims, 66-7; Mis80uri v. Lewis, 91 U. S. 31;' Ex parte Virginia, 90 U. S. 344; Bradwell v. State, 16 Wall. 139; Slaughter-hou8e Oases, ld. 77; Lane Oounty v. Oregon, 7 Wall. 76; Kentucky v. Dennison, 24 How. 107; Ableman v. Booth, 21 How. 516; 18 St. at Large 355; and Queen v. Badger, 45 Eng. C. L. R. 468. HUGHES, D. J. This indictment charges the defendant with unlawfully and corruptly endeavoring to influence, ob· struct, and impede. the due administration of justice in the district court of the United States for the eastern district of Virginia, in having, upon a warrant sued out by one William Myrick, dealt with J. P. Davis, a witness under recognizance in the United States court, in tp.e manner Bet forth in the ,indictment; that is to say, the indictment, after setting out the facts connected with the warrant, including whipping and unlawful imprisonment, charges that Kindred did issue said
,warrant ol8.rres&, and did impose said sentence upon the said Davis to influence and obstruct him as a witness in said .. court of the United States, and ,with the further intent to influence, obstruct, and impede the due adminis tration of justice in the said court. There is a motion to quash the indictment for want of jurisdiction; a demurrer to the indictment based on the same ground of defence j and a special plea in bar setting out that Kindred, in all that he did, acted as a judicial officer, and claiming that if he acted only erroneously he is exempt from trial, because his act was judicial, and can only be reviewed by a state court of appellate jurisdiction j and if he acted he is amenable only to the authorities and courts of Virginia, and is not amenable to trial and pun'ishment by 'any court of the United States. To this plea there ',is a I, demurrer by the United S t a t e s . ' "i;l, tHsnot pieteIlded, if ther.ewereno charge of 'wilful malfeasance or here, 'but only of action by the justice of the peace in his judicial capacity, that the cQurt of the United States would have jurisdiction to review the errOneous judgmeptcommitted in the discharge of a judicial function. Furthermorj3, , alth!lugh justices of the peace and all judicial are to indictment or for cOlTuptacts committed in , arraignment in aome the exercise. of. their judicial fnnctions, yet it is not pretended that. a court of the 'Unit,ed States may try an indictment 'brought for eveJ-Y such. oorrupt judicial act against judicial officers of the state. The United States court has no such general power. But it is contended by the .United States that if a law of congress, passed as necessary and proper for ,carrying into effect any constitutional provision, is corruptly violated by any person, even though he be a judicial officer .of a state, such person is amenable to prosecution in a United States court for such offence. The federal government, its officers, and courts have certain well· defined powers. The government may establish a post-office system, do all acts necessary to conducting it efficiently, pass laws for punishing depredations upon the
mails; !:tria empower its courts to enforce those' la;we.! 8od.t may establish .a customs systelIl,an internal revenuelsystem, a judiciary'system, and d6i:lther things especiallylWthoriMd by the national constitution;aba it may pass all laws necessary and proper for carrying'into execution the specific powers by that instrumetit. The peculiarity of our federal government, distinguishing it from all other confederacies previously existing, and from the confederacy of 1780 to 1789, which under old articles'of confederation, is that it is empowered to act upon individuals in the states in the exercise of the powers that have been adverted to, and is not limited in its powers to demands upon the constituent states in th'eir corporate capaCity.' Itslawa :affect individuals, itls authority controls individuals, its officers' deal with individuals, its courts have cognizahce of individuals, and, as the law lsnot a respecter 'Of' persons; if . any individual wilfully arid bon-uptly violates'a; law:bf'rCongress it will ,in . 'generalnoFavail:' him to plead that he is exempt from , aicc!ountabilitYbyreason 'of lim 'being ani officer' of· a state, and '"did the he is dharged'u.s an officeroi the state.' ' ;.' ' " !tiBvery'true', as' has been 'd:ecidedin Jthe cases cited at fulr; by stlite officers are, -sucb, exempt. from' the operation;{jfcettain laws of the United states: A state officer'8sa.lary; forinstance, 08.n1:rot be tltxed by the United. States, beMtisetlie power. to tax would carry . the power 'thdestroy, ana it·is incompatible with the"comi'ty between the· federal gov.etnmenFand which should those of the states that any general law of congress taxing Emla.ries should be extended to: the salaries of state officers. See Collector v. Day, 11 Wall. 125. Soa state of'ficel'jappointed under state laws, responsible to state courts, and ·charged with duties and service to the state, is not in general liable to process from United States courts requiring him to :perform positi':e duties imposed by laws of congress. See Kentucky v. Dennison, 24 How. 107. But I am sure that these and like cases which have been decided, and were cited by defendant's connsel, none of them
46
FEDERAL REPORTER.
go to the extent of deciding that.a officer WllO wilfully and corruptly violates a law of congress, passed for any of the constitutional purposes which have been indicated, is, qua state officer, clothed with impunity for his crime, and exempted from punishment. The laws of the United States operate upon individuals without any reference in general to their relations to the ·state, The accident of their being state officers does not in general affect their liability as citizens to the ordinary process and. jurisdiction of the courts of the United States, and, as before said, if they commit crimes against the Ullited Statei' they are punishable for such cnmes. Now, in the present case, a law is charged to have been which is necessary and proper to securing the efficient administration of their functions by the courts of the United States. There could be no proper administration of justice if the strong a.nd influential were at liberty to arrest, imprison, and otherwise intimidate the weak and timid, and detain them from attendance as witnesses before the United States courts. Congress has constitutional power to pas8 laws proper for preventing the commission of this offence, and the plea and demurrer of the defendant virtually admits that he would be amenable to these laws but for the fact that he, in the acts complained of, was acting in the judicial capacity of a justice of the peace of the state of Virginia. So that the only question for consideration is whether a jusmay, in the exercise of his office, tice of the peace of a wilfully and corruptly violate So law of the United States. If this indic.tment merely charged the defendant with an erroneous judgment it could not be sustained, for errors committed even by so humble a judicial officer asa justice of the peace cannot be reviewed, corrected, or punished by indictment in any com:t, but must go up to an appellate court for correction on appeal or writ of er,ror. But this indictment charges a wilful and corrupt motive and action on the part of this justice: charges an offence which is especially made punishable by a constitutional law of congress passed in 183!. That justiees of the peace and all j lldicial officers are pun-
IN"BE LITCHFIELD.
isha,b1e at common law for corrupt conduct in: their judicial office, when so chal'geA by indictment,' is too well settled to need argument. The case of 'Jacobs v. The, Commonwealth, 2 Leigh, 709, is an instanoe in which the court& have recognized this liability in'the state of Virginia. Ris hardly worth while to -the pretension'that if this defendant is indictable at all it is only in a court of the state. In general, offences in violation 'of acts of congress are indictable only in courts 'of the United States. In some instances in the past a few offences of this class have been referred, by express provision of law, to state courts for trial; but such is not the policy' of congress, and the practice, always exceptional and may now be regarded as abandoned. ' So the only is whether stltte justices' ofthe peace are liable, under a.nact,of congress, to indictment in United States courts for a statutory'OfIence, charged have been' committed wilfu,lly and corruptly. , I think, after what has been said, that, this proposition is too plain for argument, and I will overrule the defendant's i!emurrer, deny his motion to quash, and sustain the prosecution's demurrer to the plea. ' o .
I
to
IN 1.
THE MUTER, OF ;LITCHFIELD,.
(Di8trict Oourt, 8. D. New York. MARSHALLING AsSETS-REV. ST. -NEGLECT TO RECOVER THEM.
December 22, 1880.) AVAILABLE ASSETS "
.. 'The rule as to marshalling bankruptcy prescribed by Rev. St. '5121, requiring that firm as!iets:shail be first applied to the payment of firm debts, and individuaJ assets to the p/loymentof individual debts, and tha,rjJle of eqUlty, that where there are no firm assets the firm creditors shall share pari with the individual creditors in the individual assets, are not limited to the case where there 'has been an adjudication in bankruptcy of the .firm.. Both the rnleanli the exception apply where the partners have been adjudicated bankrupts on petitions ag,ainst them iu(hvidually. , ' ", The firm creditors have a right to shaWl pl1ll'i pa88u' with'indtvidual creditors in the individual estate, where- the,fit"lll aSsets arenotmor.