PROVIDENCE SAVINGS BANK V. HUNTINGTON.
messengers from the depots, trains, cars, or lines ofthe·said same are by this decree directed to be permitted to be enjoyed and occupied by the said plaintiff, and from refusing to receive and transport in like manner as the said defendant is now transporting, or as it may hereafter transport, for itself or for any other express company over its lines of railway, the express matter and messengers of the said plaintiff, and from interfering with or disturbing the business of the said plaintiff in any way or manner whatsoever; the said plaintiff paying for the services performed for it by the defendant monthly, as herein prescribed, at a rate not exceeding.50 per centum more than its prescribed rates for the transportation of ordinary freight, and not exceeding the rate at which it may itself transport express matter un its own account, or for any other express or other corporation, or for private individuals, reserving to.either party the right at any time hereafter to apply to this court, according to the rules in equity proceedings, for a modification of this decree, as to the measure of compensation herein prescribed. It is further ordered, adjudged, and decreed that the pay the COllts to be tl1xed herein, and an execution on a fee bill issue therefor. GEO. W· .MOCRARY, Circuit J ndge.
PROVIDENCE SAVINGS BANK SAME
v. v.
HUNTINGTON SAME.·
and others.-
(Circuit Cowrt, E. D. Missouri. 1.
l'tfarch 9,1832.)
STATUTE OF FRAUDS-VOLUNTARY .CONVEYANCES.
A voluntary conveyance is valid as to existing creditors if it leaves unencumbered property in the debtor's hands to satisfy such cl'editOl"'S claims. Smith v. KetT, 2 Dill. 50,20 Wall. 31.
InEquity. The above-entitled causes, being of a like nature, were consolidated for the purposes of trial. The bills allege, in substance, that Robert Bakel', one of the de. fendants, made a voluntary conveyance of several pieces of real property, of which he was seized in fee, to his daughter Cornelia, wife of E. A. Huntington, on the twenty-second day of May, 1872; that at the time of said conveyance said Baker was indebted in large amounts to the plaintiff and others, and was "in an embarrassed condition and unable to discharge his obligations," and shortly after the date of said conveyance became insolvent, and so remained, and was insolvent on the twenty-ninth day of January, 1878; that on said twenty'IIReported br B. F. Hex, Esq., of the St. Louis liar.
872
FEDERAL REPORTER.
ninth da.yof January the plaintiff recovered a judgment against said Baker in the circuit court of the city of St. Louis, on an indebtedness which existed at the date of said conveyance; and that plaintiff has been unable to collect said judgment, and that it remains unsatisfied. The prayer of the bills is that said conveyance be deemed fraudulent and void. The bills do not allege that the conveyance in question was fraudulent, or that it was made with intent to hinder or defraud creditors. The answer admits that the conveyance was voluntary, and was made as an advancement in consideration of love an<J affection, but denies that the debt on which the complainant's judgment was rendered existed against said Baker, or that Baker was embarrassed or unable to meet this obligation at the time said conveyance was executed. The plaintiff filed general replications. At the trial it was proved that the land conveyed by Baker to his daughter was only worth about $25,000, and that at the time he executed the conveyance he was worth, in unencumbered real estate, situated in the city and connty of St. Louis, $300,000; that his unsecured indebtedness amounted to less than $15,000, and his secured indebtedness to about $95,000; and that the latter was secured in real estate worth about $160,000. The defendants also introduced evidence tending to prove that the debt upon which the plaintiff's judgment was founded did not exist at the time said conveyance was made; but the case was decided without reference to it. Hayden <f Glover, for plaintiff. Garland If Polla1'd, for defendants. TREAT, D. J. The rule by which cases of this kind are to be determined, have, in the light of modern jurisprudence, become too well settled to be overthrown. The views of this court were fully expressed and affirmed by the United States supreme court in a Missouri case. There is nothing in the facts presented to take the case out of those rulings. Bills dismissed, with costs.
UNITED STATES V. BARTOW.
818
UNITED STATES V. BARTOW.-
((Ji1'cuit Court, 8. D. Nf/I.D York 1. INDICTMENT UNDER SECTION PORT.
February 18, 1882.) RE'
5392, REv.
ST.-PERJURY-BANK OFFICER'S
The oath of a cashier of a national bank, in a report to the comptroller of the currency, is a declaration within the meaning 0; section 5392, Rev. St.;' ..s such report, so verified, is required by the provisions of section 5211. 2. SUIE-SAME-SAME-CERTAINTY OF PLEADING.
Where the indictment contained the averment that such report was" made to the comptroller of the currency, and verified, as aforesaid, as by law required," held, upon a motion to quash, that such averment was sqfficiently certain to sustain the indictment. . .
BENEDIOT, D. J. This case comes before the court upon a motIOn to quash made after plea. It cannot, therefore, prevail unless the insufficiency of the indictment is so palpable as to satisfy the mind that no judgment can be rendered in case of conviction. The offence sought to be charged is the offence created by section 5392 of the Revised Statutes. The act charged is the verification of a report of .the condition of the National Bank of Fishkill by the accused as cashier of such association. The method of framing the indictment is far from satisfactory. Still, I think it not impossible to consider the language employed sufficient after verdict to sustain a finding that the accused took an oath that a report of the condition of the National Bank of Fishkill subscribed by him is true, and wilfully and contrary to his oath stated in such report material matter which he did not believe to be true. Such a report is, in my judgment, a declaration within the meaning of section 5392. The laws of the United States, § 5211, require every national bank to make to the comptroller of the currency not less than five reports during each year, according to the form which may be prescribed by him, verified by the oath or affirmation of the president or cashier of the association. In this indictment there is no specific averment that the report in question was made in pursuance of a request 01" requirement of the comptroller, or according to a form prescribed by the comptroller; nor is there any averment that the comptroller ever requested a report from the National Bank of Fishkill. Because of this omission it is said that no offence is charged, inasmuch as the offence created by section 5392 can only be committed in a case in which a law of the United States authorizes an oath to be administered· · Reported by S. Nelson White, Esq., of the New York bar.
But the act charged is the taking of the oath. The circumstances under which the oath was taken are introduced to show that the oath was authorized by law. Matter showing that the report which the accused verined by his oath was made in pursuance of a request from the comptroller of the currency, and in accordance with a form prescribed by him, would be, therefore, matter of inducement, and inducement does not, in general, require exact certainty. This indictment contains the averment that the report in question was "made to the comptroller of the currency and verified, as aforesaid, as by law required." I am not prepared to say that authority cannot be found for holding such an averment in regard to Buch matter sufficient after verdict to warrant judgment on the conviction. See Rex v. Salisbury, 4 T. R. 451; Rea; v. Bidwell, 1 Den. C. C. 222. The motion to quash is accordingly denied.
UNITED STATES 'D. BARTOW.-
(Oir"uit Court, S. D. New York. 1. INDICTMENT UNDER SECTION
February 18,1882.)
5209, REV. Sr.-SUFFICIENCY OF. An indictment under section 5209, Rev. St., which charges the making of a false entry in a report with intent to deceive the comptroller of the currency, cannot be sustained, as he is not an agent appointed to examine the affairs of a natIOnal hank within the meaning of the statute. Where, in an indictment under said section, a bank officer was charged with making a report with intent to deceive" whereby, by means of a false entry therein by him made," held, upon amotion to quash, tbat this language might be sufficient to support a finding that he made a. false entry in a report within the meaning of the statute.
2.
SAME-!:\AME.
BENEDICT, D. J. This is a motion to qllash an indictment framed under section 5209 of the Revised Statutes, by which statute it is made an offence for any cashier of a national bank to make any false entry in any report or statement of the association with intent to defraud the association, or to deceive any officer of the association or any agent appointed to examine the affairs of such association. The indictment is curiously framed, and under other circumstances Ishould have little hesitation in directing it to be quashed. But the lapse of time since the date of the alleged offence is such that it is now too
.Reported by S. Nelson White, Esq., of the New York bar..
