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Platt v. Beach.

the concurrence of the Secretary of the Treasury, appoint a receiver to wind up the business of such association, as provided by the act." (§ 13, Stat., p. 709.) An appointment so made is equivalent in law to an appointment by the Secretary of the Treasury, who is the head of a department. This same question has arisen in regard to inspectors of the customs who are appointed under the act of March 2, 1799, which provides that the collector "shall, with the approbation of the principal officer of the treasury department, employ proper persons as weighers, gaugers, measurers and inspectors." Under this act it was long ago decided that inspectors of the customs were, in law, officers appointed by the head of the treasury department. United States v. Barton, Gilpin, 439; United States v. Morse, 3 Story, 87; Sanford v. Boyd, 2 Cranch's C. C. 78; Ex parte Smith, id. 693. The words of the Banking Act are certainly as strong as those used in the act of 1799, and must be held to have the like effect. It follows, then, that the plaintiff is an officer of the United States as defined by the Constitution, and accordingly within the meaning of the act of March 3d, 1815. The nature of the duties imposed upon a receiver of a National bank also leads to the same conclusion. These duties are not defined by any contract, but by law and rule prescribed by the government. They are similar to those appertaining to an ordinary receiver appointed by a court. But such receivers have always been considered to be officers (Bouv. Law Dict., word "receiver;" Edwards on Receivers, p. 3), and they are officers of the court which appoints them. The plaintiff, then, is an officer, and as it is not seen how he can be considered to be an officer of any court, he must be an officer of the government which appoints him, into whose treasury he is required to pay all moneys he shall collect, by whose district attorney he is required by law to be represented in court, and under the direction and supervision of whose Solicitor of the Treasury all his suits and proceedings are to be conducted (§ 56). The judgment must accordingly be in favor of the plaintiff upon the demurrer, with leave to the defendant to answer on payment of costs.

In the Matter of Van Campen.

IN THE MATTER OF VAN CAMPEN.

(2 Benedict, 419.)

Embezzlement and false entries by officers of National banks.

The president of a National bank was charged before a United States Commissioner with embezzlement of the funds of the bank, and with having made false entries in its books, and, after examination, was held for trial. The proceedings having been brought before the District Court for review by habeas corpus, and certiorari, held, (1) that the court would examine the evidence and do what the commissioner ought to have done; (2) that if the evidence showed probable cause of the defendant's guilt he was rightfully held for trial; (3) that proof of the de facto existence of a bank called a National bank and that the defendant acted as president of it was sufficient to establish the legal incorporation of such bank and of the defendant's official connection therewith.

Where false entries are made in the books of a bank by a clerk in the bank, by direction of the president, the latter is liable therefor as principal. An intent to defraud a bank is to be inferred from the fact of embezzlement Where the president of a National bank, charged as trustee with the administration of the funds of the bank in his hands, converts them to his own use, he embezzles and abstracts them, within section 55 of the National Banking Act (13 Stat, at Large, 116) unless he shows authority for so doing.

(District Court, Southern District of New York.)

PETITIO

ETITION for a writ of habeas corpus and of certiorari. The opinion states the case.

C. A. Seward and J. L. Ward, for the petitioner.

B. K. Phelps, assistant district attorney, for the United States.

BLATCHFORD, J. The prisoner was arrested in this district, on warrant issued by the marshal of this district, on the 30th of April, 1868, by Commissioner Betts, a commissioner of the Circuit Court for this district, on a complaint made on oath before him, charging the prisoner with having, at Elmira, Northern District of New York, at various times specified in the warrant, during the year 1867, and while president of the First National Bank

In the Matter of Van Campen.

of Elmira, "an association and body corporate, created and organized under and by virtue of the act of Congress, entitled An act to provide a National currency, secured by a pledge of United States stocks, and to provide for the circulation and redemption thereof,' approved February 25th, 1863, and the acts amendatory thereof," embezzled, abstracted, and willfully misapplied moneys, funds and credits of the association, to the amount of $36,000, the property of the association, and a certain draft for $7,000, the property of the association, and, with intent to defraud the association, and to deceive the officers and agents appointed to exam ine its affairs, and especially the bank examiner of the United States, made divers false entries in the books of the association, and in its reports and statements, which false entries are set forth particularly in the complaint. The prisoner was brought before the commissioner, and an examination of witnesses on the part of the United States, in support of the charge, took place on the 8th and 11th of May. The prisoner appeared by counsel, who crossexamined the witnesses, on the part of the United States; but no witnesses were examined, or testimony put in, on the part of the prisoner. On the 12th day of May, after the case had been summed up before the commissioner, by the counsel on both sides, he committed the prisoner to the custody of the marshal for this district, for trial in the Northern District of New York. At this stage of the proceedings a petition was presented to this court by the prisoner, praying for a writ of habeas corpus to the marshal, and a writ of certiorari to the commissioner, in order that a review might be had, by this court, of the ground on which the prisoner was committed. The writs were issued on the 12th day of May, and under them the prisoner has been brought before this court, and the proceedings and evidence before the commissioner have been returned to this court, and the case has been fully argued on an application by the prisoner to be discharged from custody.

The particular offenses in regard to which testimony was taken before the commissioner are made such by the fifty-fifth section of the act of June 3d, 1864 (13 U. S. Stat. at Large, 116). That section provides, that "every president, director, cashier, teller, clerk, or agent of any association, who shall embezzle, abstract, or willfully misapply any of the moneys, funds, or credits of the association * * * or shall make any false entry in any book, report, or statement of the association, with intent, in either case,

In the Matter of Van Campen.

to injure or defraud the association, or any other company, body politic or corporate, or any individual person, or to deceive any officer of the association, or any agent appointed to examine the affairs of any such association, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished by imprisonment, not less than five, nor more than ten years.'

It is settled by authoritative decisions, that this court, in reviewing, on habeas corpus and certiorari, the action of a committing magistrate, who acts under the laws of the United States, will examine the evidence on which the commitment was grounded, and will do that which the magistrates ought to have done. Ex parte Bollman, 4 Cranch, 75, 114; In re Martin, 5 Blatch. C. C. 303.

I have examined the testimony put in before the commissioner in this case, and am entirely satisfied that there is sufficient evidence to hold the prisoner for trial, as having been guilty of embezzlement, and of making false entries, within the provisions of the statute cited. In Ea parte Bollman, 4 Cranch, 75, 125, Chief Justice MARSHALL says, that the inquiry, in a case like this, being one which, without deciding upon guilt, precedes the institution of a prosecution, the question to be determined is, whether the accused shall be discharged or held to trial; and, in that case, as well as in the case of Burr's trial (1 Burr's Trial, 11), he cites, with approbation, the remark of Blackstone, that if, upon such an inquiry, it manifestly appears that no such crime has been committed, or that the suspicion entertained of the prisoner was wholly groundless, in such cases only is it lawful totally to discharge him; otherwise he must either be committed to prison, or give bail.

Chief Justice MARSHALL adds (1 Burr's Trial, 11), that the foundation of the proceeding must be a probable cause can only be done away with in the manner stated by Blackstone. This probable cause (Ex parte Bollman, 4 Cranch, 75, 130) must be proved by testimony in itself legal, and which, though, from the nature of the case, it must be ex parte, ought, in most other respects, to be such as a court and jury might hear. In this case there is probable cause shown, on legal testimony, to believe the prisoner guilty of embezzlement, and of making false entries, within the statute, and this probable cause has not been done away with in any man

ner.

In the matter of Van Campen.

It is objected that no evidence was given before the commissioner, of the existence of the bank, or of the prisoner's official connection therewith. The record does not show that any such objection was taken before the commissioner. If it had been, the presumption from the evidence is, that the defect could have been supplied by proper official papers. The evidence against the prisoner is of such a character, that, even if this objection could prevail, I should not be at liberty to discharge the prisoner, but would be obliged to hold him, to give an opportunity to the prosecution to supply the proof wanting. But I think there is sufficient prima facie proof on both points. Two witnesses testified, without objection of the prisoner, to the existence de facto of an institution called the First National Bank of Elmira, and to the fact that the prisoner acted as president of it until October, 1867, when he resigned. There is also a great deal of testimony as to acts done by the prisoner as president, and directions given by him in that capacity. This is enough on an inquiry of this nature. It is sufficient, not only on the charge of embezzlement, but also on the charge of making false entries, with intent to defraud the bank. The People v. Caryl, 12 Wend. 547; The People v. Davis, 21 id. 309, 313; The People v. Peabody, 25 id. 472; Johnson v. The People, 4 Denio, 364, 368; The People v. Dennis, 1 Parker's Cr. Rep. 469; The People v. Chadwick, 2 id. 163.

In regard to the charge of making false entries, it is objected, that the prisoner did not personally make the false entries, but that they were made by a clerk in the bank, by the direction of the prisoner. This is sufficient to make the prisoner a principal in the offense, and to constitute a making of the entries by him. United States v. Wilson, Baldwin's C. C. R. 78, 103.

An intent to defraud the bank is to be inferred from the fact of the embezzlement, and an intent to deceive its officers from the circumstances in evidence attending the false entries.

The indebtedness of the prisoner to the bank is claimed to be merely an overdraft, and not criminal. This is not so. Where a president of a bank, charged, as a trustee, with the administration of the funds of the bank in his hands, converts them to his own use, he embezzles and abstracts them, within the statute referred to, unless he shows authority for so doing. There is sufficient evidence that the prisoner, while acting as president of the bank, converted to his own use over $30,000 of the moneys of the bank, and he shows no warrant for so doing.

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