DROVERS' NAT.: BANK 'D. ALBANY COUNTY BANK.
183
laws to punish the sale or gift of spirituous liquors to Indians. 'rhe conclusions thus reached lead. to a reversal of the judgment of. the district court. COXE, J., concurred in the result, upon the ground that, under the provisions of the act of congress of February 19,1875, (18 St. at Lar?;e, p. 330,) and the act of the legislature of New York of May 2, 1881, (Sess. Laws 1881, p. extending the municipal laws of the state over the villages of the Allegany reservation, the village of Salamanca, where the defendant resides, is·not "Indian country," within the meaning of section 2139 of the Revised Statutes.
DROVERS' NAT. ,BANK OF' UNION STOCJ{·YARDS 'D. ALBANY COUNTY BANK.
(Circuit Court, N. D. New York. December 1, 1890.) BAluts i ANJiBANXINcj....cCONTRACT·'rO PAY DRAFTS-STATUTE 01' FRAUDS. In February, 1883, plaintiff bank wrote to the defendant bank: "G. was at our office to-day, and arranged for u& to ca&h bis stock tickets, and draw on hiro for the aIiloUIit 'ndexcbail!'fe with the tickets attached. He referred us to you, Saying you would say such drafts would be paid through your bank all right. Please advise us regarding"it and'oblige." Defendant replied February Ill, 1888: "We will pay yeur drafts Qn G, !!toc!l:tick,et!l attached." Thereaftertheplaintiff cashed such of steck: tlckets /,LS were presented, and drew on him for the amounts, and forwarded'the'drafts with' the tickets attached for collection of defelldant. These transliCtionetook place two or three times a ,week, and BOIiletimesless frequently. The drafts varied from $300 to $12,000, and the aggregate from February Ill. 1883, to Novem bel' 8, 1888, was over $600,000. The defendant paid the drafts and eharged them to G., whetherl).i!1 was good fOr them or not, but it refused to pay the two drafts in suit drawn November 7 and 8, 1888, for $389.92 and $4, 789.05, respectively. Held that, considered with reference to the situation of the parties, and their subsequent acts own undel'lltanding, the letter of February 19, .1883" must be construed all a continuing promise, and not merely as ·one to pay drafts for stock tickets which the plaintitf had already cashed, or alTanged to cash ; and that the consideration was sufficiently disclosed to satisfy the statute of frauds.
At Law. S. W. Roamdale, for plaintiff. N. E. Kerna'fl, for defendant. WALUCE, J. The following facts were proved upon the trial in this case: Previous to February 16, 1883, and from that time to and includingNovember 8, 1888, Michael Gillice, of Albany, N. Y., was a cattle dealer and purchaser of cattle at Chicago, Ill., where his brother acted as his agent, buying according to the customary course of the cattle trade in Chicago aUhe premises of the Union Stock-Yard & Trausit Company. Upon purchases the seller gives the purchaser a ticket signed by the secretary of the company ,stating the number,description, and weight oUhe oattle bought, with the nl}me of the seller and buyer, which -!8 in, affeeta that the buyer has bought such cattle.·t the yard ;Qf thttcompany. The aggre,gate purchase pl:ice is by tll.esecretary
184
FEDERAL REPOltTER,
vol. 44.
figures on the back of the ticket, and below them is indorsed an order directing the bank, which has its place of business at the stock-yard, to pay for the number of cattle certified as purchased. The purchaser signs this order, and delivers the stock ticket to the seller, who uses it by getting it cashed at the bank named in the oroer, or at any other bank which is willing to cash it. Gillice did not keep an account at either of the stock-yard banks, but the Union Stock-Yard Bank had been accustomed to cash hie tickets. and draw upon him for their amount, attaching the ticket to the draft, and forwarding both to the defendant for payment. During all this time, Gillice kept an account with the defendant. February 16, 1882, Gillice and the plaintiff entered into an arrangement by which the plaintiff was to cash Gillice's tickets when presented by holders at a specified discount, provided the defendant would agree to protect the drafts plaintiff should draw upon Gillice for the tickets cashl'o. Thereupon the plaintiff wrote to defendant the folOi date of February 16, 1883: "Mr. M. C. Gillice was at our office to·day, and arrangt'ld for us to cash his stock tickets. and draw on him for the amount and exchange with tickets attached. He referred us to you. saying that you would say such drafts would be paid through your bank all right. Please advise us regarding it. and oblige. " Shortly afterwards the plaintiff received from the defendant a reply to the foregoing letter, dated February 19, '1883, as follows: "In reply to your favor of the 16th Inst., we say that we wlll pay your drafts on M. C. Gillice with his atock tickets attached. by remitting the amount to your New York correspondent, or through our exchanges, as you prefer.·" Thereafter, and until and including November 8, 1888, the plaintiff cashed such of Gillice's tickets for cattle purchases as were presented to it byits customers and other holders, and drew on him for the amount of the tickets, accompanying its drafts with the tickets, and forwarding the drafts and tickets to its correspondent for collection of the defendant. These transactions took place sometimes two or three times a week, and sometimes less frequently, and the drafts drawn varied in amount from $300 to $12,000j and the aggregate amount of tickets cashed and drafts drawn during the period from February 19, 1883, to November 8,1888, was over $600,000. The defendant always paid these drafts and charged them to Gillice, whether his account was good for them or not, it having collateral security for any advances made to him. But it refused to pay the two drafts in suit, one of which was drawn by plaintiff November 7, 1888,for $389.92,. and the other November 8, 1888, of $4,789.05. These ·drafts were drawn by the plaintiff upon Gillice, and forwarded in the usual way for collection of the defendant with the tickets attached. Until ailer these drafts were forwarded. the defendant never informed the plaintiff of its purpose to terminate its obligation under its letter of February 19, 188i}j but about that time Gillice became embarrassed, and the defendant lost the benefit of the collateral security it had theretofore had. The plaintiffand defendant were each corporations,. organized
IN RE ROSS.
185
and dOlng business as alleged in the complaint. There was due for principal and interest upon the two drafts at the time of the trial the sum of $5,811.66. If the two letters read together amount to a promise by the defendant to pay such sums as the plaintiff might thereafter advance in cashing Gillice's stock tickets, and draw for upon him, there can be no fair doubt that the consideration is sufficiently disclosed by the writing within the statute of frauds. Stadt v. Ull, 9 East, 348j Warrington v. Furbor, 8 East, 242j.Jarvis v. Wilkins,7 Mees. & W. 410. A promise to pay money for goods thereafter to be delivered, or services thereafter to be performed, is equivalent to a request by the promisor to the promisee to deliver the goods or perform the services. -The more doubtful question in the case is whether the promise by the defendant is to be construed as a continuing one, or only as one to pay drafts for stock tickets which the plaintiff had already cashed, or arranged to cash, for Gillice. The meaning of the parties, as expressed in the two letters, is not altogether intelligible, and tlwrefore it is competent to resort to extrinsic evidence, and consider the surrounding circumstances, the situation and relation of all the parties to the transaetion, their previous course of dealing, and their subsequent acts evincing their own understanding, in order to ascertain the meaning of the language used. Heffield v. Meadaws, L. R. 4 C. P. 595; Field v. Mwnson, 47 N. Y. 221; Bank v. Mylf,s, 73 N. Y. 335. Read with the aid of this evidence, the more reasonable conclusion is that the promise of the defendant was understood by the parties as applying to future transactions, and should be treated as a continuing one. Judgment is ordered for the plaintiff for $5,811.66 as of November 19, 1890.
In re Ross. (Oircuit Ooort, N. D. New York. November 80, 1890.)
1.
HABllAS CORPUs-REVIEW-SENTENCE BY UNITED STATES CONSUL GENERAL.
I.
Rev. St. U. S. 4083-4085, vests in the ministers and consuls of the United States in Japan authority to arraign, try, and sentence all citizens of the United States charged with offenses committed in that country. The treaty between the U.. States and Japan, proclaimed June 30, 1858, provided that" Americans committing offenses in Japan shall be tried by the American consul general or consul, and. shall be punished according to American laws." Petitioner was confined in the Albany penitentiary under a sentence of the United States consul general for murder committed in Japan on an American vessel, while the petitioner was a member of the crew. Held, that the circuit court of the United States would not discharge petitioner on habeas corpus, on the ground that the consul general had no jurisdiction because petitioner was not a citizen of the United States; the consul general, the minister to Japan, the state department, and the president having held that, inasmuch as petitioner was a seaman on an American vessel, his statU8 as a citizen of the United States, or at any rate as an American, within the meaning of the treaty, could not be questioned while he was under the protection of the flag. Rev. St. U. S. § 4086, provides that jurisdiction in both civil and criminal matters shall in aU cases be exercised in conformity to the laws of the United States, which are, so far as is necessary to execute the treaty, and so far as they are 8uitable to
CRnUNAL LAW-TRIAL BY UNITED STATES COYSUL-INDICTMENT-RlGIIT TO .JURY TRIAL.
186 .
FEDERAL REPORTER,
ca.rty it into effect, extended over all eitizElnS of the United States' In Japan, and over all others to the extent that the. terms of the treaty justify or J:equire. Sec-. tions 4117,41111, direct the minister to Japan to prescribe the forms of process and the modes of executing the same, and the manner in which trials llhallbe con.ducted. Held, that neither prllseotment by gl'and jury nor 8 trial by a common-law jury is essential to the validIty of the sentence. · Petition for Writ of Habea8 Corpua. Geo. W. Kirchwey, for petitioner. John E. Smith; Asst.. U; S. Atty., for respondent. WALLACE, J. It appears by the petition and return in this case that the petitioner is now confined in the Albany penitentiary tinder a senten6e of imprisonment for life,· he having been originally sentenced to death by hanging, and that sentence having been commuted by the presIt further appears ident of the United States to imprisonn1ent for that the sentence was imposed by the consul general of the United States at KaI;lagava: Japan, and approved by the United States minister resident in Japan, upon the .conviction ofthe petitioner, after a trial before the consul general; of the crime of murder committed in the harbor of Yokahama, Japan, on board an Arnerican vessel, of which the petitioner was at the time a member of the creW. By the laws of the United States, tbeministers and consuls of the United States appointed to reside in China, Japan, Siam, Egypt, or Madagascar are invested with judicial authority to arraign, try, Hnd sentence all citizens oithe United States charged with offenses against laws· committed in their respective countries, and also with all the judicial authority in regard to civil rights, Whether of properly or person, ileeessaryto execute the 'provisions of treaties between the United States and the countries' to which they are respectively accredited. Tbeir jurisdiction em braces "all controversies between citizens of the United States, or others, provided for by such treaties." Rev. St. U. S. §§ 4083-4085. Section 4086 of the Revised Statutes provides that such jurisdictiop, in both criminal and civil matters, shall in all cases be exercised and enforced in conformity to the laws of the United States, which are, so far as is necessary to execute such treaties, and so far as they are suitable to carry the same into effect, extended. over all citizens of United States in those countries, and over all others, to the extent that the terms of the treaties justify or require. It further provides that- . "If neitner the common law nor the law of equity or admiralty, nor the statutes of the United States, furnish appropriate and remedy, the IJIinisters in those countries, respectively, shall, by decrees and regulations which shall have the force,of law, supply such defects and insufficiellcy!' By sections 4117 and 4119 the ministers are directed to prescribe and forms of process, the mode of executing the same, and ,the manner in which trials silall be .conducted; and they are directed to transmit their regulations, orders; a:nd decrees to the secretary of state, to be laid before congress for revision. Jurisdiction to try the petitioner was assumed by the consul general under the provisions of the treaty between the United States and Japan,concluded June 15, 1857, and
IN 'RE ROSS."
i\
187
proclaimed June 30, 1858, which, among other things, contains the following stipulation: "Americans offenses in Japan shall be tried by the American general or cons 111. and shalL be punished to Arperican laws. Japanese committing offenses against Americans shall be tried by the Japaneseauthorities, and punished according to Japanese law." It is insisted for the petitioner that the sentence imposed upon him is void because the consul general did not have jurisdiction to try a person
not a citizen of the United States; that, if he had jurisdiction in the case, the petitioner was entitled to be placed on trial only upon the presentment or indictment of a grand jury, and to be tried by a comrnon-Iaw jury; andthat if the statutes which confer judicial powers and criminal jurisdiction upon ministers and consuls do not preserve to the accused the right to be tried only after presentment or indictment of a grand jury, and then by jury, these statutes are unconstitutional. The questions which are thus presented are of great interest and importance. They have nElver been considered by any of the circuit or district courts, or by the supreme court of the United States, in any adjudications which have been brought to the attention of this court. Yet during the 30 years since the statutes conferring the judicial powers on ministers and consuls, which have been referred to, were enacted, that jurisdiction has been freely exercised. Citizens of the United States have been tried for serious offenses before these officers without preliminary indictment or a common-law jury, and convicted and punished. These trials have been authorized by the regulations, orders, and decrees of ministers, and it must be presumed that the regulations, orders, and decrees of ministers. prescribing the mode of trial,have been transmitted to the secretary of Rtate, and by him been laid before congress for revision, as required bylaw. Unless the petitioner was not properly subjPct to this jurisdiction because he was not a citizen of the United States, his and sentence were in all respects modal, as well as substantial, regular, and valid under the laws of' congress, according to the construction placed upon these statutes by the acqniescence of the executive, administrative, and legislative departments of the government for this long period of time. It was the view of the consul general, that, inasmuch as the petitioner was a seaman upon an American vessel, his 8tatu8 as a citizen of' the United States, or at any rate as an American, within the meaning of the treaty with Japan, could not be questioned while he was under the protection of the flag; and this view was approved by action of the minister to Japan, the state department, and the president. Under these circumstances, this court ought not to adjudge that the sentence imposed on the petitioner, and modified by the president, was utterly unwarranted and void, when the case is one in which his rights can be adequately protected by the supreme court, and when a decision by this court, setting the petitioner at liberty, although it might be reversed, would be practically irrevocable.
188
FEDERAL REPORTER, vol. 44. STATES'll. BYRNE.
UNITED
Court, E. D. Mi880UN, E. D. December 9, 1890.) L OnOSBSAGAINST POSTAL LAws- EMBBZZLBlIIENT OF LBTTBRS PLICITY. INDICTMENT -
Du-
Though under Rev. St. U. S. § 5467, "embezzling a letter" and "stealing its contents, " are separate o:l!enses, and may be charged as such, the offenses are of the same grade and subject to the same penalty, and hence they may both be charged in a single count of the indictment, stating the whole transaction as a single offense, when both acts are committed by the same person at the same time, and constitute a single continuous act. Averments in such an indictment tbat the letter was secreted, embezzled, and destroyed, and that its contents were stolen, are not repugnant.
B.
SAME-REPUGNANCB.
On Demurrer to Indictment. The first count of indictment is as follows: "That Lee M. Byrne, late," etc., "at," etc., "heretofore," etc., "being then and there a person employed in a department of the postal service of the United States,that is to say, a clerk in the post-office of the United States at Piedmont, in the state of Missouri,-unlawfully and feloniously did then and there secrete, embezzle, and destroy a letter then and there intrusted to him, said Lee M. Byrne; and that carne into his possession as such post-office clerk, and which said letter was then and there registered matter, and intended to be conveyed by mail, and forwarded through said post-office at Piedmont, and delivered to one Mrs. S. M. W., to whom said letter was then and there addressed, at the post-office of the United States at the city of Detroit, in the state of Michigan, which said letter then and there contained the certain articles of value, that is to say, one United States treasury note X of the denomination of ten dollars, of the value of ten dollars, [nine other notes are then described,] and said ten articles of value being then and there the property of one C. H. T., nnd which said letter and each of said articles of value, the said Lee M. Byrne did then and tbere feloniously and unlawfully embezzle, and fraudulently and feloniously convert to his own use, and did then and there feloniously steal and take each of said articles of value out of said letter, and ca,rry away the same, contrary to the form of the statutes of the United States in such case made and provided, and against its peace and dignity." The second count is for another letter to another party with other notes. The indictment was demurred to for the reasons, among others, that the counts were bad for duplicity, and that the allegations were repugnant. George D. Reynolds, U. S. Atty. C. D. Yancey and a. A. Davia, for defendant. THAYER, J. In both counts of the indictment it is averred, in substance, that the defendant "feloniously secreted, embezzled, and destroyed" the letter therein dl.'scribed, and (C feloniously stole and took out of said letter" the articles of value therein contained, to-wit, treasury