Opinion of the Court. ate possession, and before the maturity of the secured notes. The question presented was whether, as matter of law, a mortgage given by a merchant on his stock of goods to secure debts not yet due, which had no imperfections upon its face, contained no reservations for the benefit of the mortgagor, was apparently only for the security of the mortgagee, and gave him full power to take possession upon default of payment, was invalidated by a parol understanding at the time of its execution that the mortgagor might use the proceeds of his sales to support himself, and to keep up the stock by purchase, applying only the surplus to the payment of the mortgage debt; or whether such understanding was simply to be taken into consideration, with the other circumstances, as bearing upon the question of good faith. The cases of Bank of Leavenworth v. Hunt, 11 Wall. 391; Robinson v. Elliott, 22 Wall. 513; and Means v. Dowd, 128 U. S. 273, were all reviewed and distinguished, and it was held that the chattel mortgage was not necessarily invalidated by the parol agreement that the mortgagor was to retain possession with the right to sell the goods at retail, the court placing its opinion largely upon the Iowa cases, which were regarded as resting upon sound principles. See also People's Savings Bank v. Bates, 120 U. S. 556. The principal reliance of the court below in this case was placed upon Means v. Dowd, 128 U. S. 273, 283, which was a conveyance of all the goods and personal property of the assignor to provide for the payment of certain debts, and to indemnify the endorsers upon certain notes. The instrument was variously called a "deed of trust," an "assignment," and a "mortgage." It contained an express provision that the grantors were to remain in possession of the property and continue to sell the goods for cash only, and to collect, under the direction and control of the grantees, the proceeds to be deposited in bank weekly, and applied, under the direction of the grantees, to replenishing the stock by such small bills as might be agreed upon, and to the payment of the debts of the firm in a specified order; and in case of failure to make payments, or if for any other cause the grantees might so elect, it should be lawful for them to take possession and dispose of the same Opinion of the Court. at public or private sale. This instrument was held to secure to the assignor an interest in, or an unlimited control over the property conveyed, which had the effect of hindering or delaying creditors, and to be void as being a fraud. "In the case before us," said Mr. Justice Miller, "the whole face of the instrument has the obvious purpose of enabling the insolvent debtors who made it to continue in their business unmolested by judicial process, and to withdraw everything they had from the effect of a judgment against them; for it is shown that, except the goods in this place of business transferred by the conveyance, they had nothing of value but one or two pieces of real estate encumbered by mortgage for all they were worth. It specifically provides that the grantors shall remain in possession of the said property and choses in action, with the right to continue to sell the goods and collect the debts under the control and direction of the grantees." The instrument was treated as an artful scheme to enable insolvent debtors to continue in business, in connection with the preferred creditors, at the same time withdrawing their property from the claims of other creditors which might be asserted according to the usual forms of law; and that by the mere expedient of paying interest upon the indebtedness, they had it in their power to continue in business with a large stock of goods on their shelves, and defy the unprotected creditors. The authority to take possession was accompanied by no direction for immediate sale, or winding up the business; but, on the contrary, their discretion as to taking possession and selling seemed to be absolute, and intended to be controlled for their own benefit and that of the debtors, without regard to the unsecured creditors. While the case bears a strong analogy to the one under consideration, we think it is distinguishable in the fact that there was an express provision that the mortgagors should remain in possession and continue business at the will of the mortgagees, who were given such powers as would enable the mortgagors to continue in business for their benefit, and at the same time to bid defiance to the unsecured creditors. In this case there is not only no express reservation of possession to the mortgagor, but even if Opinion of the Court. there had been, in view of the fact that such possession was immediately surrendered to the mortgagee, it is difficult to see how unsecured creditors could have been deceived or prejudiced by such reservation. In Means v. Dowd, the mortgage was not recorded, as required by law, for nearly three months after its execution, and the mortgagors were permitted for several months to control the goods and to deal with them as their own. Even when the trustees did in fact take possession, they made no change in the sign nor in the manner of conducting the business, but kept the same books by the same bookkeeper, and also employed the mortgagors to conduct the business upon a salary for them. There can be no doubt upon this record that the deed of trust in question was made upon a valuable consideration, and for the protection of bona fide sureties. The clause most relied upon by the court below is the one which requires that, after payment to the beneficiaries and the expenses of the trust, the remainder should be held subject to the order of Duncan. But if it were not to be paid to Duncan, to whom should it be paid? Clearly the trustee was not entitled to retain any more for himself than was necessary for the payment of the trust and a reasonable compensation for his own services. If he had retained more than this, he might have been compelled by Duncan to account to him for such surplus. Clearly he had no right to pay it to certain of the creditors in preference to others. If he had been a general assignee for the benefit of all the creditors, he would have been obliged to pay them pro rata; but he was not. He was a trustee of a part- not necessarily of the whole of Duncan's property for the benefit of certain creditors, and if any surplus were left after the payment of these creditors, it might properly be paid to the mortgagor for the benefit of the others. Whatever may be the rule with regard to general assignments for the benefit of creditors, there can be no doubt that, in cases of chattel mortgages, (and the instrument in question, by whatever name it may be called, is in reality a chattel mortgage,) the reservation of a surplus to the mortgagor is only an expression of what the law would imply without a Opinion of the Court. reservation, and is no evidence of a fraudulent intent. This was the ruling of the Court of Appeals of New York in Leitch v. Hollister, 4 N. Y. 211, 216, where the assignment was to the creditors themselves for the purpose of securing their demands. "A trust," said the court, "as to the surplus results from the nature of the security, and is not the object, or one of, the objects, of the assignment. Whether expressed in the instrument or left to implication, is immaterial. The assignee does not acquire the entire legal and equitable interest in the property conveyed, subject to the trust, but a specific lien upon it. The residuary interest of the assignor may, according to its nature, or that of the property, be reached by execution or by bill in equity." Cases in which reservations for the benefit of the assignor have been held to invalidate the assignment have usually been those where the reservation was either secret, or was upon its face detrimental to the interest of the creditors, and a practical fraud upon them. But if the reservation be only of any surplus which may chance to remain after the debts are paid, it is difficult to see why it should invalidate the instrument, as the creditors obtain all they are entitled to, and the surplus is that which as matter of law properly belongs to the mortgagor. It so rarely happens that a surplus is realized after the payment of all the debts, that courts should not be too technical in holding that the reservation of such surplus invalidates the instrument, unless it appears to have been made with fraudulent intent. If a surplus had been realized in this case, it is difficult to see what could have been done with it, except to return it to the mortgagor, in view of the fact that the trustee was not a general assignee for the benefit of all the creditors. Dunham v. Whitehead, 21 N. Y. 131; Curtis v. Leavitt, 15 N. Y. 9, 204; Beck v. Bur dett, 1 Paige, 305; Camp v. Thompson, 25 Minnesota, 175; Calloway v. People's Bank, 54 Georgia, 441; Hoffman v. Mackall, 5 Ohio St. 124. The judgment of the court below must, therefore, be Reversed, and the case remanded with directions to set aside the verdict, and grant a new trial. The CHIEF JUSTICE Concurred in the result. Statement of the Case. DEALY v. UNITED STATES. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF NORTH DAKOTA. No. 1035. Argued March 20, 1894. Decided April 2, 1894. A nolle prosequi as to a count in an indictment works no acquittal, but leaves the prosecution as though no such count had been inserted in the indictment. A verdict of guilty or not guilty as to the charge in one count of an indictment is not responsive to the charge in any other count. In charging a conspiracy to defraud the United States of large tracts of land by means of false and flctitious entries under the homestead laws, it is not necessary to specify the tracts by number of section, township, and range. An entry of lands under the homestead law in popular understanding means not only the preliminary application, but the proceedings as a whole to complete the transfer of title, and in charging a conspiracy to obtain public land by false entries, the word may be used in that sense in the indictment. A charge that an overt act was done according to and in pursuance of a conspiracy which had been previously recited, is equivalent to charging that it was done to effect the object of the conspiracy. If an illegal conspiracy be entered into within the limits of the United States and within the jurisdiction of the court, the crime is complete, and the subsequent overt act in pursuance thereof may be done anywhere. ON December 16, 1892, an indictment was returned by the grand jury in the District Court of the United States for the District of North Dakota, charging this plaintiff in error, together with others, with the crime of conspiracy to defraud the United States as denounced in section 5440, Revised Statutes, which reads: "If two or more persons conspire either to commit any offence against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not less than one thousand dollars and not more than ten |