The principle that the legislative intent is to be found, if possible, in the enactment itself, and that the statutes are not to be extended by construction to cases not fairly and clearly embraced in their terms, is one of great importance to the citizen. The courts have no power to create offences; but if by a latitudinarian construction they construe cases not provided for to be within legislative enactments, it is manifest that the safety and liberty of the citizen are put in peril, and that the legislative domain has been invaded. Of course an enactment is not to be frittered away by forced constructions, by metaphysical niceties, or mere verbal and sharp criticism. Nevertheless the doctrine is fundamental in English and American law, that there can be no constructive offences; that before a man can be punished his case must be plainly and unmistakably within the statute, and if there be any fair doubt whether the statute embraces it, that doubt is to be resolved in favor of the accused. These principles of law admit of no dispute, and have often been declared by the highest courts and by no tribune more clearly than the Supreme Court of the United States: United States v. Morris, 14 Pet. 461; United States v. Wiltberger, 5 Wheat. 76; United States v. Sheldon, 2 Id. 119. And see also Ferrett v. Atwill, 1 Blatchf. 151, 156; Sedgw. Const. and St. Law, 324, 326, 334; 1 Bish. Cr. Law, sects. 134, 135. In view of these acknowledged rules of law, the question occurs: Did Congress mean by the use of the words "officer of election," or "election officer," in the section of the statute on which the indictment is framed, to include the governor of a state? Is the governor an election officer? It seems to us not. These words are apt and usual words to describe the clerks and judges of the election, but not to describe the governor of a state. Such is not their ordinary or usual meaning. To make them apply to the executive of a state, in respect to an act done a month or more after the election is closed, would be a forced and unnatural meaning, and one which is not necessary in order to give the statute effect or operation. We hazard nothing in saying that, in popular use, no one would naturally infer that the words "officer of election" included the chief executive of a state. Other considerations fortify the conclusion that Congress did not intend to provide for the indictment of the governor of a state. The states are integral and indestructible parts of the General Government, without which it cannot exist: Texas v. White, 7 Wallace 700; and in view of this relation, and of the high position and important relation of the executive of a state to the United States, as well as to the state itself, it would seem very improbable that Congress would undertake to punish the governor for omitting or fraudulently discharging the duties enjoined by the laws of his state. The punishment by imprisonment would result in depriving the people of a state of the executive officer they had elected, and prosecutions of this kind, if authorized, could not fail frequently to lead to agitation, and disturb that harmony which should exist between the state and its people and the General Government. Under the Constitution (art. 1, sect. 4), Congress has the undoubted power to provide its own officers for the holding and conduct of Congressional elections, and it would most probably exercise it, if it deemed it necessary, in preference to undertaking to make or treat the governor of a state as an election officer, and to punish him through the national courts for malfeasance and nonfeasance in office: Kentucky v. Dennison, 23 How. 66. And especially would this seem to be so in view of the fact that the certificate of the governor is not binding upon Congress, each house of which is, by the Constitution, made the judge of the elections, returns, and qualifications of its own member: Art. 1, sect. 5. Admitting for the occasion the power of Congress to provide for the punishment of the executive of a state, as claimed by the prosecution we repeat, that in view of the foregoing considerations, it seems to be improbable that it would undertake to exercise the power. At all events, it is impossible, on any legal principles, that any such intention should be held to exist from the use of the general words, "election officers." We have carefully considered the very able arguments which have been addressed to us to show that the governor is embraced in the more general language of sections 19 and 20 of the same act, and that, if so these words, supposed to include the governor, should, though omitted by the legislature, be inserted by official engraftment into section 22, on which the indictment is founded. In answer to the argument, we deem it necessary only further to observe that the governor is not in terms named in either of those sections; that it is far from certain that they intended to embrace any official act of this officer, and if they did, we could not after the judgment of the Supreme Court delivered by Chief Justice MARSHALL, in The United States v. Wiltberger, supra, enter upon the dangerous and unauthorized work of incorporating the provisions of one section of a law into another. We could never be sure that we did not put in what Congress may have purposely left out. The bill charges no indictable offence, and the demurrer thereto must be sustained. CALDWELL, District udge, concurred. ABSTRACTS OF RECENT AMERICAN DECISIONS. SUPREME COURT OF INDIANA.1 SUPREME COURT OF NEW YORK.3 SUPREME COURT OF PENNSYLVANIA.* ADMINISTRATION. Payment of Claims.-Under our statute, an administrator is not authorized to pay claims allowed until an order to that effect has been made by the court: Dullard's Admin'r. v. Hardy, 47 Mo. 1 From James B. Black, Esq., Reporter; to appear in 33 Ind. Rep. 2 From C. C. Whittelsey, Esq., late Reporter; to appear in 47 Mo. Rep. 3 From Hon. O. L. Barbour, Reporter; to appear in vol. 60 of his Reports. From P. F. Smith, Esq., Reporter; to appear in 66 Penna. State Rep. CORPORATION. Violation of Charter-Interest.-A corporation authorized by its charter to take and receive a particular rate of interest upon loans and discounts, violates its charter and may be proceeded against for a forfeiture, if it take and receive a greater rate than that permitted by the charter Attorney-General v. Boatmen's Sav. Inst., 47 Mo. Promissory Note.-A corporation' known as "The Aurora Brewing aud Malting Company" executed a note signed "C. C. Kelsey, Ass't Sec'y Aurora Brewing and Malting Company." Held, that this was the note of the corporation, and not that of C. C. Kelsey personally : Gaff et al. v. Theis, 33 Ind. DEBTOR AND CREDITOR. See Fraudulent Conveyance. DECEDENT'S ESTATE. Set-Off-Another Action Pending.-A judgment for costs against a decedent's estate, to enforce which a suit by the judgment-plaintiff against the administrator upon his bond is pending and undetermined, cannot be set up as a set-off in a suit by said administrator against said judgment-plaintiff upon a note executed by the latter to the decedent: Nave v. Wilson, 33 Ind. Where an account has been filed as a claim against a decedent's estate, and final judgment on the merits of the cause has been rendered, euch judgment, remaining in force, is a bar against said account as a set-off in a suit by the administrator of said estate against the claimant upon a note executed by the latter to said decedent: Id. DEED. Delivery. There can be no delivery of a deed except by the express or presumed assent of the grantee. Although in some cases a delivery may be presumed, yet when it is shown that the grantee expressly refuses to accept, the deed does not convey the title: Rogers v. Carey, 47 Mo. ESTOPPEL. See Insurance. EVIDENCE. Proof of Facts not alleged in the Complaint.-Woras used by a vendor, during a negotiation for the sale of land, respecting the title, and susceptible of sustaining a separate allegation of fraud in the complaint, but not inserted therein, may be used as evidence to sustain the allegations that are contained in the complaint, if employed during the same conversation with the latter allegations and incapable of separation from them: Updyke v. Abel, 60 Barb. FACTOR. Bankruptcy-Discharge.-A factor, under the Bankruptcy Act of 1867, occupies a fiduciary relation to his principal, and the debt due for goods sold by the commission merchant is not released by the discharge in bankruptcy: Lenke v. Booth, 47 Mo. FORGERY. A party was intrusted with checks sigued in blank for a particular purpose; he struck out the words "to order," and filled up the blank, and deposited the check to his own account in bank. Held, that he was guilty of forgery in making a false instrument: State v. Kroeger, 47 Mo. FRAUD. See Vendor and Purchaser. FRAUDS, STATUTE of. Agreement within.-The plaintiff's farm being sold on a mortgage foreclosure, was bid off for $2400 by W., who agreed orally with the plaintiff to let him have the farm back on the payment of the said sum of $2400 and the sum of $20 for expenses. The plaintiff failed to procure the money, or security, within the time limited; the time was extended, and within the extended time he procured the defendant to take a conveyance from W., upon the terms on which W. had agreed to convey to the plaintiff. And it was then agreed, by parol between the parties, that the plaintiff should remain in possession and receive the rents and profits, and with them and from other sources refund to the defendant what he had paid or should pay or secure to W., and that on such payment the defendant should convey the premises to the plaintiff. Held, that the agreement of the defendant to convey the premises being by parol was void by the Statute of Frauds, and could not be enforced in equity: Loomis v. Loomis, 60 Barb. Held, also, that the plaintiff having, at the time of making the agreement, no title or interest in the premises, and there being no legal consideration received from him for the promise made by the defendant, that was another difficulty thrown in his way by the Statute of Frauds: Id. FRAUDULENT CONVEYANCES. The New York Statute of Uses and Trusts only makes conveyances fraudulent and void as against the creditors of the grantor at the time of the conveyance: Lovemore et al. v. Campbell et al., 60 Barb. Even though a conveyance be voluntary, it may be upheld as against the subsequent creditors of the grantor: Id. A finding of fact by a referee that conveyances were made with intent to hinder, delay, and defraud the future creditors of the grantor, wheu the whole case shows that there were then no creditors to be defrauded, is, in law, simply absurd, or rather, a legal impossibility: Id. GUARANTY. Notice-Lease. It was stipulated in a lease for two years that the lessee should pay the lessor rent, in a certain sum for the entire period, in two equal payments, for which the lessee agreed to give his notes with surety to the satisfaction of the lessor. Certain third persons executed an agreement annexed to the lease, as follows: "We guarantee that" the lessee "shall perform his agreements in the foregoing contract." The lessee took possession, and failed to execute such notes or pay the sum due, of which notice was given to the guarantors ten months after the commencement af the lease. Held, that the guarantors were not released from their liability as such as to the payment of the money, by the neglect of the lessor to notify them at an earlier date of the failure of the lessee to give the notes: Leonard v. Shirts, 33 Ind. INSURANCE. Notice-Waiver.-A condition in a fire policy was that notice of a fire should be given to the "secretary forthwith." The morning after the fire, the insured and the local agent of the company, with his counsel, visited and examined the premises; the insured was examined on oath, his statement signed by him was sent next day by the agent to the secretary. Held, that this was a compliance with the condition: Beatty v. Lycoming Ins. Co., 66 Pa. The condition required that there should be given to the secretary within thirty days "a particular account of such loss." The notice was a loss of "household furniture $367, groceries $233," the same as i the policy. Held, that the court below properly ruled that this was not a compliance with the condition: held, also, that the question of sufficiency should not have been submitted to the jury: Id. To constitute waiver of notice, there should be some official act or declaration of the company during the currency of the time, something from which the insured might reasonably infer that the underwriters did not mean to insist on it. Mere silence is not enough: Id. After the thirty days without "a particular account," nothing but an express agreement with the company would be sufficient: Id. Franklin Fire Ins. Co. v. Updegraff, 7 Wright 350, Inland Ins. Co. v. Stauffer, 9 Casey 397, distinguished: Id. Double Insurance-Value of Property-Payment into Court.-A fire policy contained: "It is agreed, That the aggregate amount insured in this and other companies, on the above-mentioned property, shall not exceed two-thirds of the estimated cash value." Held, that the esti mated value was that at the time of insurance: Elliott v. Lycoming Ins. Co., 66 Pa. The value of buildings was estimated when insured at $1950, and the amount insured $1300; additions were made; the agent of the company certified that he had examined and the addition did not increase the risk. $1000 more was then insured in another company; the buildings were burned. At the time of the fire the value of the buildings was $4200. Held, that the first policy was forfeited for over insurance: Id. If a company after notice of over insurance makes and collects assessments, they treat the contract as still subsisting and are estopped from setting up a forfeiture: Id. An over insurance was made and afterwards an assessment was made; the treasurer discovering the error, notified the local agent not to collect it; the agent forgetting his instructions demanded it, but recollecting them, did not collect it. Held, not to be a waiver by the company: Id. Under these facts, waiver was for the court: Id. A judge is not bound to submit a mere spark of evidence; there must be enough to raise a reasonable question for decision: Id. An insurance was on a house and stable in one policy; an over insurance was made on the house; both were burned; the company tendered payment for the loss on the stable. Held, not to be an affirmance of the contract, so as to estop them from setting up a forfeiture as to the house: Id. Payment of money into court when the declaration is on a special contract, admits the contract so as to supersede the necessity of proving it: Id. |