In the matter of A. H. Garland.

shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted. He then explained at some length his views on this section, showing that the framers of our constitution struck boldly at despotic machinery, by prohibiting the passage of ex post facto laws and bills of attainder, with the exception which the constitution provided. It remained to be seen whether the law of congress and the Missouri constitution were brought within this class of bills. It is not claimed that the act works corruption of blood. Therefore, it is not a bill of attainder; nor did he see that it contains conviction of any designated persons.

It is true that acts were passed in Great Britain, against persons whose names were unknown, but the laws leave nothing but the names of the persons to be made out, and to prove their association with the crime committed. If not so, it would be a mere brutum fulmen, and punishment could be visited only by proof of the guilt. No person was pointed out by the act of congress, either by name or description. It is said that the law was made to apply to those engaged in the rebellion, but this is a mistake. It is applicable to all.

The act does not declare confiscation, nor does it pronounce sentence or inflict any punishment. It leaves the party himself to determine the act of guilt, or announce and pronounce his own sentence or innocence. It designates no name or guilt, aud pronounces no sentence, and inflicts no punishment; therefore, it can in no sense be called a bill of attainder.

As to its being an ex post facto law, and a penal statute, it will be agreed it applies to criminal causes alone, and not to civil proceedings, which affect private rights respectively. Cases were cited in support of the argument, and the argument was continued to show that the law imposed a mere oath of office. There was nothing on its face to show it imposed an additional punishment for any other act. He maintained that the purpose of congress was to require loy

In the matter of A. II. Garland.

alty as a condition to practice in the courts, and not as the majority maintain, a punishment for past offenses.

The President cannot, by pardon or otherwise, dispense with the law. The man guilty of counterfeiting, may be saved by the Ppresident from the gallows; but a lawyer cannot by him be readmitted to this bar. It remains for the legislative power to say to what extent relief shall be extended.

As to the opinion in the case of Cummings, pronounced today, Judge MILLER quoted Justice STORY, who said the whole power as to religion is left to the states, to be acted on in their own judgment; and in opposition to the views of the majority of the court, quoted an ordinance of the first municipality of New Orleans, which imposed a penalty on the priest of the Obituary chapel for performing service in the church of St. Augustine. The priest relied on the constitution of the United States to protect him; but the court replied, the constitution makes no provision to protect citizens of a state in their religious liberties. That was left to the state laws, and the case of Pomali was dismissed for the want of jurisdiction.

The constitution of Missouri says certain classes shall not exercise their functions unless they show their loyalty. This the majority holds to be unconstitutional, because the constitution forbids it. In this discussion he (Justice MILLER) had said nothing of the great evils inflicted on the country by the rebellion, nor of the consequent hardships, much more severe than any law.

He had merely endeavored to show what the law is, and Chief Justice CHASE, and Associate Justices SWAYNE and DAVIS, concurred in this opinion.

Duguid agt. Edwards.

SUPREME COURT.

JASON W. DUGUID and another agt. JAMES EDWARDS, JR., and another.

Factors or commission merchants, doing business in the ordinary way, that is, receiving property from the consignors from time to time, and making sales and collections in their own names, placing the proceeds to their own credit in their bank account, charging their commissions and payments made on account of the property-making remittances to and accepting and paying drafts of the consignors, are not liable to arrest in an action for moneys neglected to be paid over to the consignors, on sales of their property.

Such factors and commission merchants do not act in a "fiduciary capacity,' within the meaning of the Code (§ 179, sub. 2), but sustain the relation of debtor and creditor to their consignors.

Erie Special Term, November, 1866.

MOTION to vacate order of arrest. The defendants were commission merchants, doing business in the city of Albany. The plaintiffs were manufacturers of flour in the village of Le Roy, and early in September, 1865, shipped to the defendants one hundred barrels of flour for sale. Six other shipments of one hundred barrels each, were made along at intervals, the last being received by the defendants December 4th, 1865. The defendants paid the freight and charges, and opened an account with the plaintiffs.

They made sales of the flour from time to time, charging their commissions and payments made on account of the flour, and crediting the proceeds of sales. They made remittances to the plaintiffs, and the plaintiffs drew upon them, in one instance at thirty days, and the defendants took up some of the paper of the plaintiffs payable in Albany. The defendants were doing a large business as factors or commission merchants for many other persons. Their sales of flour were generally on short credit. The sales and collections were in their own names, and the proceeds of sales of the property of the different consignors or owners, were intermingled and placed to their credit in their bank account. In short, the business was transacted by them in the mode

Duguid agt. Edwards.

usually pursued by factors or commission merchants in Albany and New York.

Some four hundred and forty-five barrels of the flour were sold in the usual way, prior to January 18th, 1866, and mostly prior to December. The defendants sent one hundred and fifty barrels to a commission house in New York, for sale, and when they failed in February, they had on hand one hundred and sixty-five barrels, which were delivered to the plaintiffs.

The net proceeds of the flour sold in Albany were $4,011.15, of which the defendants had paid all but $211.15.

It is alleged in the complaint that the flour was to be sold in Albany, and that such was the agreement between the parties.

It is also alleged that the defendants contrary to, and in violation of the agreement made, &c., in regard to the place of sale of the flour, and without the knowledge or consent of the plaintiffs, and with the intent to wrong, cheat and defraud the plaintiffs, fraudulently shipped to the city of New York, one hundred and fifty barrels of the flour, in the name and on the account, and as the property of the defendants, and that they procured an advance thereon, &c., which they applied to their own use, to the great injury and damage of the plaintiffs.

It is averred that this flour was worth $11.50 a barrel; it is then averred that the plaintiffs, by reason of the aforesaid wrongful and fraudulent acts of the defendants, have sustained damages amounting in the whole to $1,800, and they demand judgment for such sum, with interest, &c.

R. BALLARD, for plaintiffs.

C. B. SPRAGUE, for defendants.

MARVIN, J. The complaint is so drawn that I am in some doubt touching the intention of the pleader. That is, whether he intended to set forth two distinct causes of action, or only one cause. The first statement related to the four hundred and forty-five barrels of flour sold in Albany, the

Duguid agt. Edwards.

net proceeds of which were $4,011.15, and of which the defendants paid $3,800, and "retained" $211.15, and "neglected and refused to pay the same, or any part thereof to these plaintiffs, although often requested so to do."

Then follows the statement of the sending of the one hundred and fifty barrels to New York, beginning" and these plaintiffs further allege," &c. The counsel for the plaintiffs now claims that there is but one cause of action; that it is for the avails of the flour received by the defendants, including that sent to New York, and appropriated by the defendants to their own use. In short, that the defendants being commission merchants or factors, are liable to arrest on account of any money received by them for the property of the plaintiffs, and which the defendants have not paid over, but have themselves used.

I do not think it necessary to decide here whether the complaint contains two causes of action, one on contract and the other for a tort, as it is entirely clear that the first statement relating to the $211.15 balance, shows a cause of action on contract; and if the defendants were not subject to arrest for this cause of action, the order must be vacated, whatever view may be taken of the other statement.

The question then is, were the defendants liable to arrest for a failure to pay over the money received for the flour sold at different times, they having used the money in their business? Is the case within the second subdivision of section 179 of the Code?

The first position of the counsel for the plaintiffs is, that the facts constituting the cause of action and authorizing the arrest are the same, and that in such a case the order will not be vacated upon the merits, unless the defendants make a case that would justify a non-suit on the trial. (Frost agt. MeCarger, 14 How. Pr. R. 131, and some other cases are cited.) The rule is undoubtedly sound, but the question whether the facts stated in the complaint are such as to entitle the plaintiffs to an order for arrest, must be open to examination. In Frost agt. McCarger, it was held that the