We also held in the same case that, inasmuch as provisions contained in the charter or by-laws of a corporation regulating the transfer of stock are intended primarily for the benefit of the corporation, it is competent for the corporation to waive compliance therewith, and to admit persons to full membership in the corporation, without a strict observance of prescribed forms; citing in that behalf National Bank v. Watsontown Bank, 105 U. S. 217; Upton v. Burnham, 3 Biss. 431, Fed. Cas. No. 16,798; Insurance Co. v. Smith, 11 Pa. St. 120; American Nat. Bank v. Oriental Mills, 17 R. I. 551, 558, 23 Atl. 795; and some other cases.

It is contended, however, that, although the defendant did hold the legal title to the stock, yet there was some evidence which tended to show, and from which the jury might have found, that he held it merely as trustee for Mr. Carey, and that he was within the protection of section 5152 of the Revised Statutes of the United States. which provides as follows:

"Persons holding stock as executors, administrators, guardians or trustees shall not be personally subject to any liabilities as stockholders; but the estates and funds in their hands shall be liable in like manner and to the same extent as the testator, intestate, ward or person interested in such trust fund would be, if living and competent to act and hold the stock in his own name."

We think that this contention is unsound. The reference in the statute to testators, intestates, wards, etc., shows what class of trustees congress chiefly intended to exempt from liability. The defendant was not a trustee having in his hands funds belonging to the beneficial owner of the stock, out of which the receiver of the bank might have enforced payment of the liability which the law imposes on an owner of stock. He had bought and paid for the stock with his own means. He had held it for year, and, in the meantime, had collected and appropriated two dividends thereon, without tendering the stock to, or demanding reimbursement from, the person for whose benefit he claims to have purchased it. When he was advised by the bank that the stock stood in his name on the books, he gave no notice that he held it in trust for Mr. Carey, but permitted the bank to deal with himself as the beneficial owner. Under these circumstances, after the lapse of a year, and after the insolvency of the bank, it is too late, in our judgment, to permit the defendant to interpose the defense that he held the stock merely as a trustee, and was not the beneficial owner. In the case of Keyser v. Hitz, 133 U. S. 138, 10 Sup. Ct. 290, where certain stock in a national bank had been transferred to a married woman, as she claimed, without her knowledge or consent, and it appeared that she had indorsed three dividend checks so as to make the same payable to the order of her husband, it was held that she was estopped to deny that she was the owner of the stock, although she claimed to have no recollection of receiving or indorsing the checks, and although she denied positively that she had received the money thereon. The court said, with respect to the indorsement of the dividend checks:

"If she indorsed them, or either of them, she is estopped to say that she did not know their contents, and was not the owner of the shares of stock upon which the dividends were declared; for each check discloses upon its

face that it was payable to her order, and was for dividends on stock standing in her name on the books of the bank."

In the same case it appeared that, after the transfer of the stock upon the books, no new stock certificate had been issued to the defendant; but the court said that:

"The record made of the transfers upon the books of the bank was sufficient, as between her and the bank, to work a change of ownership; and new certificates were not necessary to her becoming the owner of the stock so transferred. Nor can she escape liability by reason of the fact, if such be the fact, that no certificates were issued to her by the German-American Bank."

The doctrine of estoppel, as applied in the case of Keyser v. Hitz, supra, is in itself sufficient to establish the liability of the defendant in the case at bar. But, even if we should concede that the defendant was not estopped to deny that he was a stockholder, still we should not be able to hold that the testimony in the case at bar was sufficient to show that the defendant merely held the stock as a trustee, and was not liable to assessment as a stockholder for that reason. According to the evidence, the cashier of the Livingston National Bank (Mr. Carey) represented to the defendant, about two months prior to the purchase of the stock in controversy, that it was worth $126 per share on the books; that he wanted to buy certain stock that was held in St. Paul, and that he would take and pay for such stock as the defendant "could get hold of." Acting upon this suggestion or information, the five shares of stock belonging to Fitzgerald appear to have been purchased by the defendant. Now, it may be that the stock was bought under such circumstances that the defendant could have compelled Carey to take it and pay for it within a reasonable time, if he had thought proper to do so; but it is not apparent that the defendant was under a legal obligation to transfer the stock to Carey, or that the latter could have compelled him to do so. Carey neither paid nor promised to pay the defendant for his services in negotiating for the purchase of stock; nor did the defendant promise to buy any stock on Carey's account. As the defendant, Horton, purchased the stock with his own money, and was not in Carey's service, and had not obligated himself to purchase stock for Carey's benefit, the most that can be said of the transaction is that the defendant had an election either to hold the stock after he had purchased it as his own, or to sell it to Carey within a reasonable time at such price as he had paid for it. It is evident, we think, that the purchase of the stock under these circumstances did not create the relation of trustee and cestui que trust, within the meaning of section 5152 of the Revised Statutes. That relation does not exist when, as in the present case, the alleged trustee has the right to hold and dispose of the alleged trust property as his own, without liability to account therefor to any third party.

For both of the reasons above indicated, that is to say, because the defendant was estopped to deny that he was a stockholder, and because the evidence was insufficient to show that he held the stock as a trustee, no error was committed in directing a verdict for the plaintiff below, and the judgment of the circuit court is therefore affirmed.

HARDY V. UNITED STATES.

(Circuit Court of Appeals, Eighth Circuit. December 2, 1895.)

No. 602.

BAIL BOND-VALIDITY-INSUFFICIENT INFORMATION.

When a United States commissioner, having jurisdiction to decide whether there was probable cause to believe that one brought before him has committed an offense, orders the accused to give bail, the bail bond taken in pursuance of such order is not void, though the information charge no offense.

In Error to the United States Court in the Indian Territory.

R. Hardy, the plaintiff in error, on June 13, 1893, became surety in a bail bond which was executed by Abram H. Kelly, as principal, to secure the personal appearance of said Kelly, before the United States court in the Indian Territory, at the next term thereof, "then and there to answer what might be objected against him." The bond was taken and approved by Moran Scott, a commissioner of the United States court in the Indian Territory. It recited, in substance, that the said Abram H. Kelly had been brought before said commissioner, charged with the offense of soliciting men to commit adultery and fornication, and that upon examination it had appeared that there was probable cause to believe that he was guilty of the offense, whereupon the said commissioner had ordered that he give bail in the sum of $200 for his appearance before the United States court in the Indian Territory at the October term, 1893, of said court, to be held at Ardmore, in the Indian Territory. At the October term, 1893, of said court, Kelly failed to appear and plead to an indictment for inciting and soliciting persons to commit adultery, which was duly returned against him by the grand jury, whereupon the bail bond was forfeited, and a scire facias was issued against R. Hardy, the surety in the bond. In response to the writ of scire facias, the surety appeared, and contended, in substance, that the bail bond in question was void because the information filed before the commissioner failed to charge said Kelly, the principal in the bond, with the commission of any offense against the laws that were in force in the Indian Territory. This defense was overruled, and a judgment was rendered against the defendant for the sum of $100. To reverse that judgment, the defendant below has prosecuted a writ of error to this court.

H. C. Potterf and Henry Hardy filed brief for plaintiff in error. E. C. Stringer, U. S. Atty.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER, Circuit Judge, after stating the case as above, delivered the opinion of the court.

In the brief filed by counsel for the plaintiff in error, considerable space is devoted to the discussion of the question whether the indictment which was returned against the accused, and the information that was filed before the commissioner, charged an offense against the laws that were then in force in the Indian Territory. Some authorities have also been cited in support of the proposition that adultery and fornication are not crimes at common law, and that solicitation to commit fornication and adultery is not a crime, unless adultery and fornication are made crimes by statute in the state where the solicitation is sought to be punished, and that it is not then an indictable offense, unless accompanied by overt

acts making solicitation amount to an attempt to commit the crime. The view, however, that we have felt ourselves constrained to take of the case at bar, renders it wholly unnecessary to consider or decide either of these questions. The principal in the bail bond which the government now seeks to enforce was arrested, and brought before a United States commissioner, who unquestionably had jurisdiction to inquire and to decide whether there was probable cause to believe that the accused had committed an offense against the laws which were then in force in the Indian Territory. The jurisdiction so vested in the officer necessarily made it his duty, and conferred upon him the power, to decide, in the first instance, whether the acts charged in the information constituted an offense against the laws of the territory. And inasmuch as he had jurisdiction to decide that question, and to require the accused to give bail for his appearance before the proper court, if he found it probable that an offense had been committed, it follows that the bail bond was not void, even though the information charged no offense, and even though the decision of the officer on that point was erroneous. When an examining magistrate acts within his jurisdiction, an order made, requiring the accused to give bail, and a bail bond taken in pursuance of such order, are not void, although the magistrate may have erred in his judgment both as to matters of law and fact. U. S. v. Reese, 4 Sawy. 629, 635, Fed. Cas. No. 16,138. It very frequently happens that an information lodged with an examining magistrate is so defectively drawn that it states no offense, but it cannot be conceded that a recognizance taken or a bail bond given to secure the appearance of the accused before the proper court is for that reason void, when it is taken before an officer who has a general power to inquire into the commission of offenses, and to hold persons to bail. On the contrary, the law is well settled that in a proceeding by scire facias to enforce, as against a surety, a forfeited recognizance or bail bond that was taken before a court or examining magistrate, it is ordinarily no defense that the information or indictment under which the accused was arrested is defective in matter of averment, or that it describes no offense. U. S. v. Reese, supra; U. S. v. Evans, 2 Fed. 147; U. S. v. Stien, 13 Blatchf. 127, Fed. Cas. No. 16,403; State v. Poston, 63 Mo. 521; State v. Livingston, 117 Mo. 627, 23 S. W. 766; Reeve v. State, 34 Ark. 610; Com. v. Skeggs, 3 Bush, 19; Friedline v. State, 93 Ind. 366; Champlain v. People, 2 N. Y. 82.

It results from these views that the plea interposed by the surety, namely, that the information under which Kelly had been arrested and held to give bail alleged no offense known to the law, constituted no defense to the proceeding by scire facias to enforce the forfeited recognizance, wherefore the judgment of the United States court in the Indian Territory must be, and the same is hereby, affirmed.

UNITED STATES v. BEACH.

(District Court, D. Colorado. December 26, 1895.)

Nos. 1,142 and 1,143.

WRONGFUL USE OF MAILS-SCHEME TO DEFRAUD.

An indictment, under Rev. St. § 5480, for using the mails for promoting "a scheme and artifice to defraud," must show that there was a motive of gain on the part of defendant, since the general language of the statute must be limited to such schemes and artifices as are ejusdem generis with those specifically named, and these latter are of the kind which are gainful to the wrongdoer.

Henry V. Johnson, for the United States.
Thomas Ward, for defendant.

HALLETT, District Judge. These indictments are upon section 5480, Rev. St., as amended March 2, 1889 (25 Stat. 873), for using the mails for promoting a scheme and artifice to defraud. The charge is that the prisoner induced the prosecutor to go to Salt Lake City, Utah, and to expend a considerable sum of money in making the journey, upon the false pretense that he could have employment as a nurse from one Perkins. Perkins was a mythical person, and there was no employment of any kind for the prosecutor in Salt Lake City. The point is made against the indictments that there was no motive of gain to the prisoner in making the false representations, and therefore the case is not within the statute. If we could solve the question upon any meaning of the word defraud, it would be difficult to say that "lucri causa" is an element of the offense. Fraud may be only an artifice to deprive another of his right, without gain to the person practicing it. In the analogous cases of cheating and swindling, it is doubtful whether gain to the wrongdoer is an essential element; and in malicious mischief, which this case much resembles, there is no such element. Even in larceny, after much conflict of decision, it is still doubtful whether the taking must be lucri causa. 2 Bish. Cr. Law, § 842; 2 Whart. Cr. Law, § 1781. Since the full recognition of malicious mischief as a distinct offense, it would seem that this intent ought to be of the essence of larceny. These considerations are not, however, controlling in the case at bar, for the reason that the statute defines the cases to which it is applicable. The cases mentioned in the statute are: "To sell, dispose of, loan, exchange, alter, give away, or distribute, supply, or furnish, or procure for unlawful use any counterfeit or spurious coin," etc., and "to obtain money by or through correspondence, by what is commonly called the 'sawdust swindle,' or 'counterfeit money fraud,' or by dealing or pretending to deal in what are commonly called 'green articles,' 'green coin,' 'bills,' 'paper goods,' 'spurious treasury notes,' 'United States goods,' 'green cigars,' or any other names or terms intended to be understood as relating to such counterfeit or spurious articles," etc. The words "give away," "distribute," "supply," etc., are obviously inserted to meet evasions of the act, as where the wrongdoer pro