tain possession with the right to sell goods at retail, the court placing its opinion largely upon the Iowa cases, which were regarded as resting upon sound principles. See also Peoples Sav. Bank v. Bates, 120 U. S. 556 [30: 754]. 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 mortgag or, but even if there had been, in view [537 of the fact that such possession was immediately surrendered to the mortgagee, it is diffi cult 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. The principal reliance of the court below in this case was placed upon Means v. Doned, 128 U. S. 273 [32: 429], 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 indorsers 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 There can be no doubt upon this record that might be agreed upon, and to the payment of the deed of trust in question was made upon the debts of the firm in a specified order; and a valuable consideration, and for the protecin case of failure to make payments, or if for tion of bona fide sureties. The clause most any other cause the grantees might so elect, it relied upon by the court below is the one should be lawful for them to take possession which requires that, after payment to the ben536]and dispose of the same *at public or pri-eficiaries and the expenses of the trust, the vate sale. This instrument was held to secure remainder should be held subject to the order to the assignor an interest in, or an unlimited of Duncan. But if it were not to be paid to control over, the property conveyed, which Duncan, to whom should it be paid? Clearly had the effect of hindering or delaying cred-the trustee was not entitled to retain any more itors, and to be void as being a fraud. "In the for himself than was necessary for the paycase before us," said Mr. Justice Miller, "the ment of the trust and a reasonable compen-awhole face of the instrument has the obvious tion for his own services. If he had retained purpose of enabling the insolvent debtors who more than this, he might have been compelled made it to continue in their business unmo- by Duncan to account to him for such surplus. lested by judicial process, and to withdraw Clearly he had no right to pay it to certain of everything they had from the effect of a judg- the creditors in preference to others. If he ment against them; for it is shown that, except had been a general assignee for the benefit of the goods in this place of business transferred all the creditors, he would have been obliged by the conveyance, they had nothing of value to pay them pro rata; but he was not. but one or two pieces of real estate encum was a trustee of a part-not necessarily of the bered by mortgage for all they were worth. whole of Duncan's property-for the benefit It specifically provides that the grantor shall of certain creditors, and if any surplus were remain in possession of the said property and left after the payment of these creditors, it choses in action, with the right to continue to might properly be paid to the mortgagor for sell the goods and collect the debts under the the benefit of the others. control and direction of the grantees." The Whatever may be the rule with regard to instrument was treated as an artful scheme to general assignments for the benefit of creditors, enable insolvent debtors to continue in busi there can be no doubt that, in case of chattel ness, in connection with the preferred cred- mortgages (and the instrument in question, by itors, at the same time withdrawing their whatever name it may be called, is in reality a property from the claims of other creditors chattel mortgage) the reservation of a surplus which might be asserted according to the usual to the mortgagor is only an expression of forms of law; and that by the mere expedient what the law would imply without a reservaof paying interest upon the indebtedness, they tion, *and is no evidence of a fraudulent[538 had it in their power to continue in business intent. This was the ruling of the court of with a large stock of goods on their shelves, appeals of New York in Leitch v. Hollister, 4 N. and defy the unprotected creditors. The au Y. 211, where the assignment was to the credthority to take possession was accompanied by itors themselves for the purpose of securing no direction for immediate sale, or winding up their demands. "A trust," said the court, "as the business; but, on the contrary, their dis- to the surplus results from the nature of the cretion as to taking possession and selling security, and is not the object or one of the obseemed to be absolute, and intended to be conjects, of the assignment. Whether expressed trolled for their own benefit and that of the in the instrument or left to implication, is imdebtors, without regard to the unsecured cred-material. The assignee does not acquire the itors. 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 He entire legal or equitable interest in the property conveyed, subject to the trust, but a specific lien upon it. The residuary interest of the asssignor may, according to its nature, or that of the prop er, be reached by execution or by bill in equity. Cases in which reservations for the benefit 5. of false entries to lands under the homestead laws, the word "entries" means the complete transfers of title. Charging in an indictment that the overt aer was done according to and in pursuance of the conspiracy charged, in effect charges that it was done to effect the object of the conspiracy, and subsequently to the conspiracy. 6. If the conspiracy charged in an in hetment. was entered into within the United States and the jurisdiction of the court, the crime of conspiracy was then complete, and the sub equent overt act in pursuance thereof, may have beer done anywhere, and it is not ne essary that it be charged to have been done with the juris diction of the court. of the assignor have been held to invalidate the p 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 mort gagor. It so rarely happens that a surplus is realized after the payment of all the debis, 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 IN ERROR to the District Court of the to return it to the mortgagor, in view of the United States for the District of North fact that the trustee was not a general assignee Dakota, to review a judgment of conviction. for the benefit of all the creditors. Dunkerm of Michael Dealy and others of the crime of v. Whitehead, 21 N. Y. 131; Curtis v. Leavitt, | conspiracy to defraud the United States, as 15 N. Y. 9, 204; Beck v. Burdett, 1 Paige, 305, | denounced in U. S. Rev. Stat. § 5410, and 19 Am. Dec. 46; Camp v. Thompson, 25 Minn. sentence of Dealy to fine and imprisonment. 175; Calloway v. People's Bank of Bellefontaine, | Affirmed. 54 Ga. 441; Hoffman v. Mackall, 5 Ohio St. 124, 64 Am. Dec. 637. 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. result. [No. 1935.] Argued March 20, 1894. Decided April 2, 1894. Statement by Mr. Justice Brewer: 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 con Mr. Chief Justice Fuller concurred in the spiracy to defraud the United States as denounced in section 5440, Revised Statutes, which reads: 539] *MICHAEL DEALY. Piff. in Err., v. UNITED STATES. (See S. C. Reporter's ed. 539-547.) "If two or more persons conspire either to commit any offense 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 conspir acy shall be liable to a penalty of not less than one thousand dollars and not more than ten ment not more than two years.' Nolle prosequi-verdict on all counts but one-thousand dollars, and to imprison- [540 indictment for conspiracy-defrauding government of public lands-overt act-where done. that count. 8. An indictment for a conspiracy to defraud the United States of the title of large tracts of public lands is not defective because in stating the conspiracy there is no specification of the particular tract or tracts of land of which detendants conspired to defraud the United States. In an indictment charging defendants with conspiring to defraud the government by means NOTE.-As to indictment for murder; sufficiency of statement of time and place of death, see note to Ball v. United States, 35: 377. As to effect of general verdict, sce note to Snyder United States, 28: 697. As to when one or two persons jointly indicted may be a witness for the other or for the state against the other, see note to Benson v. United States, 36: 991. The indictment was in seventeen counts. The first was as follows: "That on the first day of April, in the year of our Lord one thousand eight hundred and ninety one, in the county of Rolette, state of North Dakota, and within the jurisdiction of Dealy, one Edward Laberge, one Peter Thi this court, one William W. Allen, one Michael bert, and one H. H. Fritz, and others to the grand jury unknown did commit the crime of conspiracy to defraud the United States, com mitted as follows: That at the time and place aforesaid the said William W. Allen, Michael Dealy, Edward Laberge, Peter Thibert, and H. II Fritz, and others to the grand jury unknown did falsely, unlawfully, and wickedly conspire, combine, confederate, and agrée together among themselves to defraud the United Sates | land in said county of great value by means of the title and possession of large tracts of of false, feigned, illegal, and fictitious entries of said lands under the homestead laws of the med States, the said lands being then and there public lands of the United States, open to entry under said homestead laws at the local land oflice of the United States at Devil's Lake City, in said state, and that according to and in pursuance of said conspiracy, combination, confederacy, and agreement among themselves had as aforesaid the said Allen did persuade and induce one Charles Pattnaude to make filing under said homestead laws and there after to make proof and final entry under said laws for the lands known and described as follows: The south half of the northeast quarter and lots one and two of section six, in township one hundred and sixty-three north, of range 70 west, of the fifth principal meridian, said lands lying and being in said county, on which said lands said Pattnaude, as said Allen then and there well knew, had never made settlement, improvement, or residence, contrary to the form of the statute of the United States in such case made and provided, and against the peace and dignity of the United States." 541] *In the further counts the conspiracy was charged in substantially the same lan guage, but with it in each a separate overt act, that in the third being stated as follows: Of ant is that the acquittal on certain of the "According to and in pursuance of said conspiracy, combination, confederation, and agreement, the said Allen did fraudulently and unlawfully induce and persuade one Frank Premeau to appear as a witness for one Charles Patthaude in making final proof under said laws before H. H. Fritz, clerk of the district court of the state of North Dakota in and for said county, being a court of record of said state, and as such witness before said Fritz to testify and make proof for said Pattnaude in effect that he had resided for more than five years immediately preceding the time of mak-to have been committed by means of a blow ing said proof on the lands known and described as south half of the northeast quarter and lots one and two of section six, township one hundred and sixty-three, range seventy west, of fifth principal meridian, lying and being in said county, public lands of the United States and subject to entry under said laws of said land office, whereas, in fact, said Pattnaude, as said Allen well knew, had never resided on said land at any time within five years prior to making such proof, contrary to the form of the statute of the United States in such case made and provided, and against the peace and dignity of the United States." from a pick-axe, and in another by a shoot from a pistol. While from the name of the deceased and the time and place of the killing it may be inferred that the same homicide is in the mind of the pleader, yet such inference is not, as a matter of fact, conclusive, and, as a matter of law, is overthrown by the dissimilarity in the means of the homicide, and it certainly would be a novelty in criminal prac- [543 tice to have a verdict returned upon such indictment, finding the defendant guilty under the one count and not guilty under the other adjudged a verdict of not guilty, as to both. In the case at bar the section of the statute The overt acts stated in the other counts under which this indictment was found rewere of a similar character. Prior to the trial quires not merely a conspiracy, but some act a nolle was entered as to the second, fourth, to carry into effect its object. This act is only fifth, sixth, ninth, and seventeenth counts. one of the means by which the conspiracy is The case being tried on the remaining counts, sought to be carried into effect, just as in the the defendants Allen, Dealy, and Laberge illustration given, the blow of the pick axe were found guilty on all but the sixteenth. A and the shot from the pistol are means for the motion for a new trial and one in arrest of accomplishment of the homicide, and a ver judgment having been overruled, the defend-dict of not guilty as to any one of the counts ant Dealy was sentenced to imprisonment for the term of one year and one month, and to pay a fine of $1000. To reverse such judgment and sentence he sued out a writ of error from this court. Mr. A. S. Drake for plaintiff in error. Mr. Holmes Conrad, Assistant Atty. Gen., for defendant in error. in this indictment is not necessarily a finding against any conspiracy, but only that the conspiracy and the overt act therein stated did not both exist, while a verdict of guilty upon any other count finds both the conspiracy and the overt act named therein. There is no conflict between the findings, and no force to this objection. Neither the testimony nor the instructions having been preserved in the record, the only 542] *Mr. Justice Brewer delivered the other inatter to which our consideration is opinion of the court: directed is as to the sufficiency of the indictIt is objected, in the first place, that The first proposition of counsel for defendment. ney, 132 U. S. 357, 363 [33:363, 366], *is [545 cited: "Under the homestead laws three things are needed to be done in order to constitute an entry on public lands: First, the applicant must make an affidavit setting forth the facts which entitle him to make such an entry; second, he must make a formal application; and, third, he must make payment of the money required. When these three requisites are complied with, and the certificate of entry is executed and delivered to him, the entry is made-the land is entered." there is no specification of the particular tract | for this court in Hastings & D. R. Co. v. Whit or tracts of which the defendants conspired to defraud the United States. There is nothing more definite than this, large tracts of land in the county of Rolette, state of North Dakota, such lands being public lands of the United States, open to entry under the homestead laws at the local land office of the United at Devil's Lake City in said state. It is true, no tract is named by number of section, town ship, and range, and the language is broad enough to include any or all the public lands of the United States situate within that county, and subject to homestead entry at that land The argument is that the word, "entry." office. But manifestly the description in the having a technical meaning, must be taken indictment does not need to be any more defin- with that meaning in this indictment; that, as ite and precise than the proof of the crime. In thus understood, an entry in a homestead case other words, if certain facts make out the being but a preliminary act, does not operate crime, it is sufficient to charge those facts, to divest the title of the government, and, as is and it is obviously unnecessary to state that said in the brief: "The charge that defendants which is not essential. Can it be doubted that conspired to defraud the government by means if these defendants entered into a conspiracy to of false entries to lands under the homestead defraud the United States of public lands, sub-laws will thus be seen to be a charge of an in 544] ject *to homestead entry, at the given nocent act." office in the named county, the crime of conspiracy was complete even if no particular tract or tracts were selected by the conspirators? It is enough that their purpose and their conspiracy had in view the acquiring of some of those lands, and it is not essential to the crime that in the minds of the conspirators the precise lands had already been identified. In Dickinson's" Guide to the Quarter Ses sions," p. 355, is given the form of an indictment for a like conspiracy which, as appears, was twice before the King's Bench. Rex v. Cooke, 2 Barn. & C. 615, 5 Barn. & C. 538. In that indictment the conspiracy is charged in these words: "Did conspire, combine, confederate, and agree together unlawfully and unjustly to disturb, molest, and disquiet Sir George Jerningham, Bart., in the peaceable and quiet possession, occupation, and enjoy ment of certain manors, messuages, lands, and hereditaments and premises, situate and being in the said county of S., of which he, the said Sir George Jerningham, then was, and for a long time had been, peaceably and quietly posessed." In describing the overt act it is stated that defendant did break and enter a certain messauge, called Stafford Castle, situate in the county aforesaid, whereof the said Sir George Jerningham had long been, and then was, in the peaceable and quiet possession." In other words, there, as here, the description in the conspiracy part of the indictment is broad enough to include any lands within the county belonging to and in the possession of the party against whom the conspiracy was formed, but when the overt act of the conspirators is stated then the particular tract in respect to which the act was com mitted is described. It is further objected that the indictment is defective in its statement of the means by which the conspiracy was to be carried into effect. The language is by means of "false, feigned, illegal, and fictitious entries under the homestead laws of the United States." It is insisted that the word "entry" in homestead cases has a settled technical meaning, and refers simply to the initiation of the proceedings, and the language of Mr. Justice Lamar, speaking But the popular understanding of the word is not thus limited. It is common to speak of an entry of land under the homestead law, meaning thereby not a mere preliminary ap plication, but the proceedings as a whole, the complete transfer of title. Counsel concede that in cash purchase and pre-emption cases it is even technically used to describe the final proof or final purchase, but seek to draw a distinction between its use in those cases and under the homestead law. Even if it were conceded that such a distinction is recognized in the statutes and authorities, it would not change the significance of the popular use. Clearly, it is used in this indictment in its popular sense, for, when we turn to the description of the overt acts, we find matters subsequent to the original entry. Thus, in the first count, one of the defendants is charged to have induced "Charles Pattnaude to make filing under said homestead laws, and thereafter to make proof and final entry under said laws for the lands known," etc. Something of equal significance is found in each of the subsequent counts upon which conviction was had. It is one purpose of an indictment to inform the defendant of the crime of which he is charged, and there can be no doubt that this defendant understood the exact sense in which the word "entry" was used in this indictment, [546 and was not misled into the belief that the only crime charged against him was of a conspiracy to acquire lands of the United States by means of wrongful preliminary proof. It is also said that the indictment does not charge that the overt act was done "to effect the object of the conspiracy," as the statute expresses it, but is charged to have been done simply "according to and in pursuance of said conspiracy." But this is too great a refinement of construction. Something more is intended by the use of the words "according to and in pursuance of" than that the overt act was done after the formation of the conspiracy, or even that it was simply a result of the conspiracy. It implies that the act was one contemplated by the conspiracy, "according to," and was done in carrying it out, "in pursuance of," something which the conspiracy provided should be done. something which when done should tend to accomplish the purpose of the conspiracy. Again, it is objected that the time at which the overt act was done is not specifically stated, but the date of the conspiracy is alleged, and that the overt act was "according to and in pursuance of." Necessarily, therefore, it was subsequent to the conspiracy. 2. ferring certain creditors, pay to them sums largely in excess of their demands, and thus prevent his other creditors from receiving any payment. A party who seeks to avoid the consequences of an apparently unreasonable delay in the assertion of his rights on the ground of ignorance must allege and prove, not merely the fact of ignorance, but also when and how knowledge was obtained. 3. Where a failing debtor appropriates all his property to the payment of a few of his creditors, another creditor who makes no inquiry as to the integrity of the transaction for nearly five years, is guilty of laches, which will prevent his setting aside the transaction on the ground that such creditors received more than was due them. [No. 268.] 1894. APPEAL from a decree of the Circuit Court Still, again, it is urged that the overt acts, the inducing and persuading, are not charged to have been done within the limits of the United States. The conspiracy is charged to have been entered into in the state of North Dakota, and the proof necessary to make final entry at the land office named would have to be used in that state. While it is true there is no specific allegation that the act of inducing and persuading was done within the jurisdiction of the court, and while it may be possible, as counsel Submitted March 18, 1834. Decided April 2, suggest, that so far as this record discloses all the solicitation and persuasion exercised by the defendant was done within the limits of Canada, and outside the jurisdiction of the trial court, yet the solicitation was to do a wrongful of the United States for the Northern act within the state of North Dakota (Palliser District of Illinois, dismissing on demurrer a v. United States, 136 U. S. 257, 265 [34: 514,suit in equity, brought by Engelbert Hardit 517]) and that solicitation was not a part of the et al., plaintiff's, against Sigismund Heidweyer 547] conspiracy, but subsequent to and *in et al., defendants, to set aside certain proceedfurtherance of it. The gist of the offense is the ings and transactions alleged to constitute a conspiracy. As said by Mr. Justice Woods, a general assignment by defendants, on the speaking for this court, in United States v. ground of want of equity, the laches of plainBritton, 108 U. S. 199, 204 [27: 698, 700]: tiffs, etc. Affirmed. "This offense does not consist of both the conspiracy and the acts done to effect the object of the conspiracy, but of the conspiracy alone. The provision of the statute, that there must be an act done to effect the object of the conspiracy, merely affords a locus penitentiæ, so that before the act done either one or all of the parties may abandon their design, and thus avoid the penalty prescribed by the statute." Hence, if the conspiracy was entered into within the limits of the United States and the jurisdiction of the court, the crime was then complete, and the subsequent overt act in persuance thereof may have been done anywhere. These are all the questions which we consider of importance. Several other matters are suggested by counsel. We have examined all of them, and deem it unnecessary to prolong this opinion by noticing them in detail. Statement by Mr. Justice Brewer: On April 13, 1889, the appellants as plaintiffs, citizens of the state of New York, filed their bill in the Circuit Court in the United States for the Northern District of Illinois, making as defendants the following persons, citizens of the state of Illinois: Sigismund Heidweyer, Norbert Stieglitz, the National Bank of Illinois, Siegmund Florsheim, Philip Florsheim, and Simon Florsheim. On January 15, 1890, they filed an amendment to their bill. To the bill, with its amendment, the defendants demurred on the several grounds of a want of equity in the bill, the laches of plaintiffs, a lack of jurisdiction, and a defect of parties. On May 5, 1890, this demurrer was sustained, and the bill dismissed. From the decree of dismissal the plaintiffs have ap We see no error in the record, and the judg-pealed to this court. ment is affirmed. ENGELBERT HARDT ET AL., Appts., v. The facts as stated in this bill and its amend Mr. Justice Jackson did not hear the arment are as follows: The plaintiffs were gument or take part in the decision of this case. judgment creditors of the defendants Heidweyer & Stieglitz, a firm doing business in Chicago from July, 1875, to October 15, 1881. As early as January 1, 1884. the latter were hopelessly insolvent, their liabilities exceeding even their nominal assets, as they well knew. By the assistance of friends, however, they were enabled to keep up the appearance of doing business until October. Early in September they ascertained and determined detinitely that they must fail, make a general disposition of their property among their creditors, and go out of business. At that time their indebtedness amounted to about SIGISMUND HEIDWEYER ET AL. (See S, C. Reporter's ed. 547-561.) Preferring creditors-laches-what constitutes. 1. A failing debtor cannot under pretense of pre NOTE. That judgment creditors may unite in a creditor's bill, see note to Myers v. Fenn. 18: 604. As to creditor's bill, when judgment at law and ex-240,000, their assets to about $150 000, of ecution is necessary, before bringing, see note to Jones v. Green, 17: 553. As to laches, when a good defense, see note to Felix v. Patrick, 36: 720. which $125,000 was the value of their mer chandise, and $25,000 that of their bills receivable and open accounts. Among other creditors were the following parties to whom |