sary funds to make payment, and that if any loss has occurred it should be the loss of the holder of the note and not his; in other words, the burden of proof is shifted: instead of requiring the plaintiff to prove that he made demand, the maker, defendant, is required to prove that he deposited the money according to the terms of the note, and that it was lost to the plaintiff on account of his failure to demand it at the proper place. Wallace v. M' Connell, 13 Pet. 136; Story on Promissory Notes, §§ 227, 228, and note to p. 287; Wolcott v. Van Santtoord, 17 Johns. 248; Clarke v. Gordon, 3 Rich. 313. Now, if the matter complained of in this last exception had stood alone in the judge's charge, the exception would be well founded, as the charge in this respect is not in accordance with the above principles, but when the whole charge on this branch of the case is taken together as appears in the brief, it is apparent that the judge properly qualified the doctrine, as a whole, when he instructed the jury that if they believed the plaintiff was guilty of laches in not demanding payment of the note at the office of Wroton & Dowling before their failure, and that plaintiff would have received the money if the note had been presented, and by their failure to do so the defendant lost the money, they should find for the defendant.' This is, we think, in accordance with the American doctrine, and was a part of the judge's charge, and properly qualified that which when taken in detached portions might be regarded as error."

The London Law Times says: "The law with regard to bees is rather peculiar. A dispute as to the ownership of a swarm came recently before Mr. W. F. Woodthorpe, the judge of the Belper county court, and it was contended, that being feræ naturæ, there could be no property in them, and that therefore the plaintiff, from whose land they had strayed to that of the defendant, could not demand their return or damages for their loss. It was proved, however, that the plaintiff had followed the swarm on their departure from his own land, and had not lost sight of them until he saw them alight in the defendant's garden. On the strength of the following passage from Blackstone (vol. ii, p. 392): "Bees are feræ naturæ ; but when hived and reclaimed, a man may have a qualified property in them by the law of nature as well as by the civil law. Reclamation, that is, living or including them, gives the property in bees, for though a swarm lights upon my tree, I have no more property in them till I have hived them, than I have in birds which make their nest thereon; and therefore, if another hives them, he shall be their proprietor; but a swarm which fly from and out of my hive are mine so long as I can keep them in sight and have power to pursue them, and in these circumstances no one else is entitled to take them.' Judgment was entered in favor of the plaintiff for the amount claimed as the value of his truant bees." The doctrine of Blackstone adopted in Gillett v. Mason, 7 Johns. 16, and

was

it was there held that finding and marking with the finder's initials a "bee tree," on the land of another, is not a reclamation. See "Larceny of Animals," 23 Alb. L. J. 444; also as to carrier pigeons escaping under training, id. 482.

An attempt has been made to "pirate "the London Times' name and heading. The Solicitors' Journal says: "In a case of Walter v. Head, before the Master of the Rolls, on the 22d July, a motion was made to restrain the defendant from selling any newspaper under the name or title of the Times. The defendant had been issuing reprints of old copies of the Times, which were exact fac similes of the former issues, except the last sheets, upon which the defendant had inserted advertisements for his own profit. He had also issued future numbers of the Times as skits, also inserting advertisements for profit. The prices of the defendant's issues and those of the plaintiffs' were dissimilar, but the name and the device and arms at the commencement of the defendant's issues were exactly the same as the plaintiffs'. The plaintiffs now moved for an injunction, on the ground that the defendant's issues were a colorable imitation of the plaintiffs', and an infringement of their trade-mark in their name and device. For the defendant it was contended that the plaintiffs had no special property in the name of the Times, which was used in conjunction with other words by numerous other papers, and further, that the only ground upon which the plaintiffs could succeed was that the issues of the defendant were calculated to deceive the public into the idea that they were buying those of the plaintiffs', which it was submitted they were not. Jessel, M. R., was of opinion that the issues by the defendant were an exact copy of the plaintiffs' paper; that the plaintiffs had a right of property in their name and heading, which the defendant had infringed; and that the defendant had also attempted to appropriate one of the most profitable of the branches of the plaintiffs' business - their advertisements - and he must therefore grant the injunction asked for." As to proprietorship in name of periodical, see Robertson v. Berry, 50 Md. 591; S. C., 33 Am. Rep. 328, and note, 335.

A. was prosecuted for bigamy. He pleaded, first, that his first marriage had no legal existence, because his intended wife had deceived him, being enceinte by another man, and because he was a minor and did not obtain his father's consent to the marriage. The court held these things might have made the first marriage voidable, but not void. A. further pleaded the statute of limitations. The Court of Cassation decided that in bigamy the statute did not begin to run till one of the marriages was dissolved; "for while the double bond of matrimony exists, the illegality continues, which makes the essence of said crime."-Vienna Juristische Blatter.

juries might well be called to that fact." This shows the danger of the holding. It is difficult to draw the line between the grief of bereaved affection and the disappointment occasioned by not being able to attend the funeral.

JURISDICTION OF OFFENSE OF PASSING
COUNTERFEIT NATIONAL
BANK BILLS.

UNITED STATES DISTRICT COURT, VERMONT, JUNE 14, 1881.

EX PARTE HOUGHTON.

The Federal courts have exclusive jurisdiction over the offense of passing counterfeit National bank bills, and a writ of habeas corpus will issue to release one imprisoned upon a charge of such offense by a State court.

HABEAS CORPUS proceedings to release the relator

Houghton, who was convicted and sentenced by a State court to imprisonment upon an indictment for passing a counterfeit National bank note. The opinion states the case.

Wm. G. Shaw, for relator.

WHEELER, J. This is a motion by the relator for a discharge on habeas corpus from imprisonment in a prison of the State, under sentence of a court of the State for passing counterfeited National bank bills, on the ground that the State court had no jurisdiction over this offense, and that the imprisonment is contrary to the Constitution and laws of the United States.

The Constitution of the United States provides:

"Article VI. This Constitution, and the laws of the United States which shall be made in pursuance thereof, * * * shall be the supreme law of the land, and the judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding."

Under this provision the limits of power between the United States and the several States are to be sought for in that Constitution and the laws of Congress which have been made pursuant to it. It provides, article 1, section 8: "The Congress shall have power * * * to coin money, regulate the value thereof, and of foreign coin: * * * to provide for the punishment of counterfeiting the securities and current coin of the United States." This provision extends to passing counterfeited coin and securities, as well as to counterfeiting them. United States v. Marigold, 9 How. 570. It also provides, article 3, section 2, that "the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, ** * and fifth amendment; * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." It is well established that Congress may exclude the jurisdiction of the courts of the States from offenses within the power of Congress to punish. Houston v. Moore, 5 Wheat. 1; The Moses Taylor, 4 Wall. 411; Martin v. Hunter, 1 Wheat. 304; Com. v. Fuller, 8 Metc. (Mass.) 313; 1 Kent Com. 399.

National banks are organized under the laws of the United States; their bills are issued to them by the treasury department of the United States, secured by bonds of the United States on deposit there, which fact is to be expressed on their face by the signatures of the treasurer and register, and the seal of the treasury of the United States. Rev. Stat., § 5172. They are securities of the United States which Congress has power to protect by punishing counterfeiting them, and the passing of counterfeits of them, and are so declared to be in the laws of the United States. Rev.

Stat., §5413. Whether the State court had jurisdiction over this offense or not depends upon whether Congress has excluded that jurisdiction or left it to those courts under the laws of the States.

The judiciary act of 1789 provided, section 11: "That the Circuit Courts shall have * **exclusive cognizance of all crimes and offenses coguizable under the authority of the United States, except where this act otherwise provides, or the laws of the United States shall otherwise direct * *" 1 Stat. at Large, 78.

By the act of April 21, 1806, provision was made for punishing counterfeiting of the coin of the United States, and by that of February 24, 1807, for that of forging notes of the bank of the United States, and by that of March 3, 1825, for that of forging certificates of public stocks or other securities of the United States, counterfeiting coin of the United States and other countries, and passing counterfeit coin. Section 26 of the act of 1825 provided, as similar sections in each of the other acts had done, that nothing in this act contained shall be construed to deprive the courts of the individual States of jurisdiction under the laws of the several States, over offenses made punishable by this act. 4 Stat. at Large, 122.

This provision expressly left to the States jurisdiction of the particular offenses mentioned in those acts, the same as if Congress had never exercised its power to punish them.

A person was convicted under a statute of Ohio for passing counterfeit coin, and the conviction was upheld as not being contrary to the laws of the United States. Fox v. Ohio, 5 How. 410. So under a statute of Vermont (State v. Randall, 1 Aik. 89), and a statute of Massachusetts (Commonwealth v. Fuller, 8 Metc. 313). But upon demurrer to an indictment under the laws of New Hampshire for punishing perjury generally, for perjury committed in proceedings under the bankrupt act of 1841, it was held that the State court had no jurisdiction over that offense. State v. Pike, 15 N. H. 83. In Moore v. Illinois, 14 How. 13, the respondent was convicted of harboring and secreting a negro slave contrary to the statute of Illinois. It was argued that the State court had no jurisdiction, because the laws of the United States provided for punishing obstructing the owner of a negro slave in endeavoring to reclaim him, and concealing the fugitive after notice; but the jurisdiction of the State was maintained on the ground that the offenses were different.

The Supreme Court of Massachusetts took jurisdiction of an embezzlement of a private special deposit in a National bank by an employee of the bank, on the ground that Congress had not provided for that particular offense. Commonwealth v. Tenny, 97 Mass. 50. The National bank acts were passed in 1863 and 1864, and provision was made for the punishment of counterfeiting their bills and passing the counterfeits, but there was no reservation to the State in making these provisions. Without such reservation the States had no power left to them to supplement the acts of Congress by legislation covering the same ground. Sturges v. Crowningshield, 4 Wheat. 122; Prigg v. Pennsylvania, 16 Pet. 539.

The statute of Vermont, under which the relator was indicted and is imprisoned, was passed in 1869. At that time, and until the adoption of the Revised Statutes of the United States, June 22, 1874, there was nothing giving up to the States the jurisdiction which Congress had taken over this offense, or any part of it. The Revised Statutes contain a title of "Crimes," in which the provisions for punishing counterfeited National bank bills are placed. It also has this general provision:

"Section 5328. Nothing in this title shall be held to take away or impair the jurisdiction of the courts of the several States, under the laws thereof."

The provisions of the judiciary act, relating to the criminal jurisdiction of the Circuit Court, are brought into section 629, twentieth, with the qualification of exclusive cognizance changed to "except where it is, or may be, otherwise provided by law."

If these provisions were all, it might be said that Congress had expressly withdrawn the jurisdiction before taken of offenses mentioned in the title of "Crimes," so far as the States might choose to exercise similar jurisdiction through their courts. But chapter 12 of the title on "Judiciary," entitled “Provisions common to more than one court or judge," was placed in the Revision and enacted as a part of the Revised Statutes. It commences with section 711:

"The jurisdiction vested in the courts of the United States, in the cases and proceedings hereinafter mentioned, shall be exclusive of the courts of the several States: First, of all crimes and offenses cognizable under the authority of the United States."

This provision was not in the statutes of the United States anywhere before. It was framed ex industria, and placed there for some purpose. It is not merely the provision of the judiciary act relating to the jurisdiction of the Circuit Courts brought forward and placed here, as well as in the chapter relating to those courts, to express the same thing again in another connection; but it is a different thing. That provision made the jurisdiction of the Circuit Courts exclusive of all other courts, Federal as well as State, except as otherwise provided. This applies to all the courts of the United States, and expressly excludes, and seems to be made expressly to exclude, the jurisdiction of the courts of the States. Both provisions are necessary to place the jurisdiction in these cases where it is reposed, among the Federal courts, and exclude that of the State courts, and the latter would be unnecessary if that of the State courts was not to be excluded. The language of the section quoted from the title on "Crimes" does not save the jurisdiction of the courts of the States over the offenses made punishable by that title, as section 26 of the act of 1825 saved it over offenses made punishable by that act. It says nothing about offenses, as such, to express or specify its application. There are many offenses made punishable by that title-some of them such as never could be offenses against the laws of any of the States; some such as the obstructing the executive officers in the performance of their duties, and the service of the processes of the courts of the United States, where the same act might constitute one offense against the laws of the United States, and another different offense against the laws of the States. This section of the title is general, and might be applicable to all these if taken in its broadest sense. It might be, or be claimed claimed to be, that making any act punishable under the laws of Congress would prevent the States from punishing a different offense involved in the same act. An assault upon a marshal, to obstruct his service of process, would be punishable under this title for the obstruction, but not for the assault; the assault might be punishable under the State laws, but not the obstruction. The title makes certain offenses against the laws of the United States punishable. This section seems to mean that making them so punishable shall not prevent the States from taking hold of any offenses which may be involved that are contrary to the State laws, and not cognizable under the United States laws, and punishing them. And taken in connection with the section making the jurisdiction of the United States courts over offenses cognizable under the authority of the United States wholly exclusive of the State courts, it must mean this. Such construction leaves all the sections standing operative, while the other would leave the one declaring the jurisdiction exclusive inoperative. The section on "Crimes" is

later than the other in the order of the statutes, and might be said to be controlling for that reason; but that ground of inference is expressly removed by the statutes themselves, which provide that no inference or presumption of a legislative construction is to be drawn by reason of the title under which any particular section is placed. Section 5600.

The act of passing these counterfeited bills, made punishable under the statute of the State under which the relator was indicted, might, and often would, concur with others to constitute a cheat which would be punishable by laws of the State of long standing against obtaining money or goods by privy or false tokens. Gen. Stat. Vt. 671, § 23.

It was upon this ground that the passing the counterfeited National bank bill was a mere private cheat under the laws of Virginia, that the conviction was upheld by the majority of the court in Jett v. Virginia, 18 Gratt. 933 (7 Am. Law Reg. 260), cited at this hearing The indictment against the relator does charge him with passing a counterfeited National bank bill, knowing the same to be false, with intent to defraud one Margaret McDaniels, which is, in terms, a somewhat different offense from that made punishable by the laws of the United States, which consists merely in passing such counterfeited bill, knowing it to be counterfeited. R. S., § 5415. The indictment appears to have been drawn according to the statute in force before the act of 1869, which made an intention to defraud an ingredient of the offense, but did not in exact language apply to National banks. Gen. Stat. Vt. 678, § 3. But this section of the General Statutes was expressly superseded by the act of 1869, and the element of an intent to defraud was left out, so that the offense made punishable by the laws of Vermont was the passing such counterfeit bill, knowing it to be counterfeited, precisely the same offense made punishable by the law of the United States. The material allegations of an indictment are those which set forth the charges which are contrary to the law and make up the offense, and not those which charge things not contrary to the law, however morally wrong they may be, and which are not necessary to constitute the offense. A plea of not guilty to this indictment would only put in issue the passing the counterfeit bill knowing it to be such, and the plea of guilty only confessed as much. The relator, therefore, stands convicted in the State court of precisely an offense cognizable under the authority of the United States, and is restrained of his liberty under that conviction.

There are respectable opinions and weighty authorities which hold that in the United States there are two governments the United States, within the sphere marked out by the Constitution, and the several States -and that the same act may be an offense, and some of them that it may be the same offense, against each, for which punishment may be inflicted by each, and that the safety of the accused from excessive punishment under the two systems lies in the pardoning power, and in the benignant spirit with which the laws of each are administered. United States v. Wells, 7 Am. Law Reg. 424; Mr. Justice Daniell in Fox v. Ohio, 5 How. 410; Mr. Justice Johnson in Houston v. Moore, 5 Wheat. 1.

That the same act, constituting different criminal offenses, may be punished for one under the United States, and for another under the State, cannot, under the authorities before cited, well be doubted, and most of the examples cited to show that the same offense may be punished by both are examples of that class. That the States cannot make criminal offenses out of what the United States makes lawful, nor against the laws of the United States, was well settled in Prigg v. Pennsylvania, 16 Pet. 539; The Moses Taylor, 4 Wall. 411; and other cases before cited. The provision in the Constitution prohibiting putting twice in jeopardy

for the same offense was for the protection of the people from oppression. Houston v. Moore, 5 Wheat. 1. It may be said that this only applied to the tribunals of the United States; but if so it is a restraint of the courts under the laws of Congress. Under it, Congress could not make the same offense punishable twice. And if Congress could not do this directly, it could not indirectly, by creating an offense and leaving the States to punish it once, and providing by its own laws to punish it again.

This offense appears to be one over which the State court had no jurisdiction, and the relator is restrained of his liberty without warrant of law. The next question is whether he can be relieved in this mode.

In 1867 the writ of habeas corpus from the courts and judges of the United States was extended to persons in custody, in violation of the Constitution, or of a law or treaty of the United States. R. S., § 753. The law of the United States was, and is, that the relator should be tried by the courts of the United States, and not by those of the State, and if guilty that he should be punished according to the laws of the United States and not under those of the State under which he is in custody. This court has jurisdiction of the relator under these provisions by this writ.

The inquiry into the cause of his confinement is not a review of the proceedings of the State court. If the attention of that court had been called to this aspect of the case, probably this proceeding would have been wholly unnecessary; but the record shows that it was not. The point here is not at all that the relator was not proceeded with in a proper manner by the State court, but that the court had no jurisdiction over him for this offense. In such cases the remedy may be by habeas corpus. Ex parte Lange, 18 Wall. 163.

Brown v. U. S., 14 Am. Law Reg. 566, before Erskine, J., and afterward before Mr. Justice Bradley, is an authority that section 711 gives exclusive jurisdiction to the courts of the United States over offenses cognizable under the authority of the United States, and that habeas corpus from a Federal court or judge is a proper remedy.

This is not a proceeding for relieving criminals at all from just punishment. It is intended to relieve persous from punishment contrary to the laws of the United States, but not from liability to be punished according to those laws. If the relator was still liable to punishment according to those laws, he would be held by order of court until the district attorney could proceed against him; but the offense for which he has already suffered considerable punishment is now apparently barred by the statute of limitations of the United States. Therefore further detention would be unavailing.

The relator is discharged from this imprisonment.

CONTRACT FOR FORESTALLING MARKET

VOID.

MICHIGAN SUPREME COURT, JUNE 29, 1881.

RAYMOND V. LEAVITT.

A contract between parties, the object of which was to force a fictitious and unnatural rise in the wheat market held to be against public policy and void, and an action to recover for advances of money made in pursuance of such a contract not maintainable.

ACTION for money lent. The opinion states the

facts. From a judgment for plaintiff below defendants took a writ of error.

Otto Kirchner and C. A. Kent, for plaintiffs in error.
H. M. Cheever, for defendant in error.
CAMPBELL, J. Leavitt sued defendants below on

the common counts and served a bill of particulars in which the demands were set out under different forms and items as $10,000 money lent, $10,000 handed defendants for their use on their guaranty that it should be repaid in a reasonable time, $10,000 deposited with them for their accommodation, and $2,327.53 on account stated. He recovered $3,027.53, which is claimed on the argument to have been made up by the sum of what is called an account stated, and an error of $700.

The plaintiff's story on oath was that the sum of $10,000 was advanced by him in May, 1880, to defendants for the purpose of controlling the wheat market at Detroit for what is called by the parties the May deal, with a view of forcing up prices, and producing what is understood as a corner, and compelling parties who had contracts to fill to pay a higher price for wheat to fill them. Defendants, as he testified, were to give him a third of the expected profits, and to repay the $10,000 with or without profits at all events. Defendants claimed that Leavitt furnished the $10,000 as a margin for these wheat transactions, and was to bear his risks, and that the speculations resulted in a loss. At the end of July, 1880, defendants gave plaintiff three documents or statements, exhibiting transactions up to that time, in which he was treated as a party concerned in the transactions, and one of these papers showed in a brief way that at that time there was left of his share no more than $2,327.50. This is now claimed to be an account stated. Several special questions were left to the jury and they found that there was no loan made, and that defendants, when they rendered these statements, understood the business was closed. They also negatived the giving of the money for the purpose of contracting for more wheat than could be delivered, and thus artificially raising the price. If the testimony is properly printed it does not appear distinctly that any one swore the purpose was merely to raise the price of wheat so as to get the advantage of those who should agree to sell to defendants themselves, but rather to so raise it as to compel all persons who had wheat to deliver to any body to pay larger prices. The answer given by the jury does not fully meet the testimony.

We do not understand on what basis plaintiff recovered under his bill of particulars. He never advanced to defendants any sums except two $5,000 items, amounting to $10,000. If there was any money to be returned under his particulars it could have been no less than $10,000. On the other hand both parties repudiated the idea that they had ever agreed on the July bills or any of them, as settling the amount due from one to the other; and there cannot be in law an account stated that neither party agrees to. It is impossible to support the judgment on any theory of the evidence that conforms to the demands of either party. But the defendants, both at the close of plaintiff's case and at the close of the whole testimony, asked for instructions that the plaintiff should not recover, and in our opinion they should have been given. The object of the arrangement between these parties was to force a fictitious and unnatural rise in the wheat market for the express purpose of getting the advantage of dealers and purchasers whose necessities compelled them to buy, and necessarily to create a similar difficulty as to all persons who had to obtain or use that commodity, which is an article indispensable to every family in the country. That such transactions are hazardous to the comfort of the community is universally recognized. This alone may not be enough to make them illegal, but it is enough to make them so questionable that very little further is required to bring them within distinct prohibition.

The cases of Morris Run Coal Co. v. Banlay Coal Co., 68 Penn. St. 173, and Arnott v. Pittston & Elmira Coal Co., 68 N. Y. 558, held contracts involving sim