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was a politician, and the honorary and pecuniary Stat. U. S., tit. 62. It seems to me, clearly, the rewards of our profession were trifling in his sight. case is one falling within the paragraph of section It is also absurd for his admirers to deny that he 711 above quoted, and that' by the Federal law itwas ambitious. He was one of the most ambitious self the jurisdiction of the State is expressly exmen that ever lived. More than a generation ago cluded. Chancellor Kent in his commentaries, in one of his intimate friends told the writer of these
concluding his discussion of the matter, says: 'In lines that Mr. Tilden was the most ambitious man judicial matters the concurrent jurisdiction of the he ever knew, and that Mr. Tilden even then had a State tribunals depends altogether upon the pleasserene corfidence, and did not scruple to prophecy, ure of Congress, and may be revoked and extinthat he would be governor, United States senator guished whenever they think proper in every case and president a prognostication at which our in- in which the subject-matters can constitutionally formant sceptically smiled, but which was not so be made cognizable in Federal courts, and that far out of the way as it then seemed. Mr. Tilden's without an express provision to the contrary, the best exhibition was as governor, in which office he State courts will retain a concurrent jurisdiction in performed meritorious service. Had not his health all cases where they had jurisdiction originally over failed he would unquestionably have been nomi- the subject matters.'
the subject-matters.' 1 Kent Comm. 400. And nated again for the presidency, and would have there are other authorities to the same effect: Delaproved a formidable candidate as he did when he field v. State, 2 Hill. 159; Houston v. Moore, 5 Wheat. ran, and as many think was elected. He was a 22; Harlan v. People, 1 Doug. (Mich.) 207; Snoddy v. sagacious and unrivalled party manager. We should | Howard, 51 Ind. 411; Hendrick's case, 5 Leigh, 713; always be skeptical of a man's claims to "states- Hall's case, 97 Mass, 570. It is also held that in manship,” who died leaving five millions of money. cases to which the jurisdiction of the State courts Great statesmen have generally died poor. We do might extend, in the absence of any action by Connot admire the methods in which he is reputed to gress, where Congress does assume jurisdiction, its have made his large fortune, but we do admire control then becomes paramount and exclusive. the way in which he disposed of it at his death. The Moses Taylor, 4 Wall. 411; Ex parte Bridges, 2 He was fond of books and was a good scholar, and Woods, 428; Ex parte Houghton, 7 Fed. Rep. 657; yet a bookseller in New York tells us that he once Brown v. United States, 14 Amer. Law Reg. 566; pleaded the statute of limitations to an account of Sturges v. Crowninshield, 4 Wheat. 139; Prigg v. his for some of his books. Of course we should Commonwealth, 16 Pet. 539; Martin v. Hunter, 1 want to hear Mr. Tilden's side of this story, as well Wheat. 304; Houston V. Moore, 5 id. 1; State v. as of the cipher despatches business, before accept- Pike, 15 N. H. 83; State v. Adams, 4 Blackf. 146; ing them in their worst appearance, but we have a Commonwealth v. Fuller, 8 Metc. 313; Commonwealth strong impression that however philanthropic he v. Tenney, 97 Mass. 50; Commonwealth v. Felton, 101 could afford to be at death he was engaged during id. 204; People v. Kelly, 38 Cal. 145; 3 Story Const. his life in taking the very best care of himself and Law, 623. Commonwealth v. Felton states the conpromoting his own interests. Which, after all, is
Which, after all, is clusion of the matter in that case in language quite what we are nearly all engaged in, but we do not applicable to the present. The respondent was all expect to be discovered to be saints when we go charged in that case with being an accessory to an hence. Mr. Tilden has left no writings to testify to embezzlement by an officer of a National bank. In future generations of the analytical skill, the delivering the opinion of the court Mr. Justice patience and the sagacity which have been so Ames said: "The difficulty in the way of holding much and so deservedly admired in this.
the defendant upon the present indictment is that
the act of Congress has taken the crime of the prin-
cipal out of our jurisdiction, and our courts cannot
See also Com
monwealth v. Ketner, 92 Penn. St. 372; S. C., N People v. Fonda, Mich. Sup. Ct., July 15, 1886,
Am. Rep. 692; State v. Tuller, 34 Conn. 295. a National bank was not punishable by a State court. The court says: “Section 711 of chapter 12 In Applegarth v. Robertson, Maryland Court of of the Revised Statutes of the United States pro-Appeals, June 23, 1886, 6 East. Rep. 192, it was vides that 'the jurisdiction vested in the courts of held that in an action to recover the purchase-price the United States in the cases and proceedings of a house the vendee may set up as a defense the hereinafter mentioned shall be exclusive of the defective condition of the gable wall, and also sue courts of the several States. First, of all crimes to recover damages sustained by reason of misrepreand offenses cognizable under the authority of the sentations in regard to the wall. The court said: United States.' The other clauses of the section “But then again it was pressed in argument, and need not be given, as none of them relate to crimi- strongly too, that the appellee was precluded from nal jurisdiction. Congress, by law, created the setting up the defective condition of the wall as a National banking system, and provided for their in- defense in this suit, because he had sued Cone to ternal workings, and prescribed a punishment for recover damages on account of the same.
In other the offenses charged against the respondent. Rev. words, it was said he could not, in an action to re
cover the purchase-money, set up as a defense the tual taking, and it therefore resulted that an acdefective condition of the wall, and at the same quittal of the burglary with intent to steal constitime sue Cone for damages alleged to have been tuted no bar to a prosecution for the actual theft. sustained by reason of his misrepresentations in re- Without the intention to commit a felony, the mere gard to the wall. But this position is not, we think, fact_of breaking would not at common law constitenable. The appellee had paid the entire purchase- tute a burglary; and where the intent to steal is money, except the note for $250, to recover which charged, and the party acquitted, it would seem this suit was brought, and the proof shows that he that a subsequent indictment for grand larceny, had expended $1,000 at least in rebuilding the with the same facts developed on the trial, would wall. He had the right therefore not only to sue be placing the accused in jeopardy the second time Cone to recover damages which he sustained by for the same offense. The weight of authority, we reason of Cone's misrepresentation, but also to set are aware, is adverse to such a view of the question, up the defective and unsafe condition of the wall as but the whole reason and philosophy of the law, as a defense to the suit brought on the note to recover well as justice to the accused, requires a different the balance of the purchase. This we understand ruling. Mr. Bishop, in alluding to the decisions to be the rule laid down in Mondel v. Steele, 8 M, & on this class of cases, takes occasion to say that on W. 858, Rigge v. Burbidge, 15 id. 598. In Mondel principle, we may question whether they do not v. Steele an action was brought by the buyer to re- press more heavily against defendants than the cover damages for breach of an express warranty in humane policy of our criminal jurisprudence justithe quality of a ship built under a written contract. fies.' 1 Bish. Crim. Law, 1064. The dissenting The defendant pleaded that the buyer had already opinion in the case of Wilson v. State, 24 Conn. 57, recovered damages by setting up the breach of war- lays down the correct rule, viz. : When a criminal ranty in a suit brought by the defendant to recover act has been committed, every part of which may the price of the ship; and this plea was held bad be alleged in a single count, and proved under it, on demurrer. Baron Parke said: “It must however the act cannot be split into several distinct crimes, be considered that in these cases of goods sold and and a separate indictment sustained on each; and delivered with warranty, and work and labor as whenever there has been a conviction for one part well as the case of goods agreed to be supplied ac- it will operate as a bar to any subsequent proceedcording to contract, the rule which has been found ings as to the residue.' In a note to this dissent in so convenient is established; and it is competent 1 Bish. Crim. Law, it is said: “It would be a very for the defendant in all those, not to set off, a bold thing to say, that leaving out of the account proceeding in the nature of a cross-action, the what has been adjudged by the courts, the weight amount of damages which he has sustained by of reason is not clearly with the dissenting opinion.' breach of the contract, but simply to defend him- The prosecutor may elect whether his indictment self by showing how much less the subject matter shall be for burglary or grand larceny, but he canof the action was worth by reason of the breach of not make two offenses out of the one, and when incontract, and to the extent that he obtains, or is ca
dicted and tried for either the bar becomes compable of obtaining, an abatement of price on that plete as to both the burglary and larceny. In account, he must be considered as having received Georgia it has been held that a jeopardy on one insatisfaction for the breach of contract, and is pre
dictment will bar a second whenever the proof cluded from recovering to that extent in another shows the second case to be the same transaction action, but no more.' This, Mr. Benjamin says, is
with the first.' The intent to steal may be shown the leading case now always cited for establishing, by proof establishing the actual theft, and when first, that the buyer may set up the defective quality the Commonwealth has made out the case of burof the warranted article in diminution of price; glary in this way it is a novel ruling, although susand secondly, that he must bring a cross-action if tained by the weight of authority, to hold that two he desires to claim special or consequential dam- convictions may be had for offenses growing out of ages, which action is not barred by reason of his the same transaction. It has been held that where having obtained a diminution of price in a previous one steals two pigs by driving them off from the action. Benj. Sales, 893.
owner at the same time he may be convicted of larceny for stealing the one pig, and then again con
victed for stealing the other. This is not the rule In Triplett v. Commonwealth, Kentucky Court of in Kentucky in Fisher v. Commonwealth, 1 Bush, 211. Appeals, June 5, 1886, it was held that an acquit. The accused in the same act, and with like intent, tal under an indictment for burglary in breaking took a horse, wagon and harness from H. The inand entering a dwelling with intent to steal is a dictment was for stealing the horse, another indictbar to a subsequent indictment for grand larceny, ment for stealing the wagon and harness, and why when the alleged taking was connected with, and a there was not a third indictment for stealing the part of the same transaction constituting the al- | harness does not appear - perhaps the harness was leged burglary at the same place, and on the same
On the trial for stealing the horse occasion. The court said: “At common law,
in the accused was acquitted, and this was held to be an indictment for burglary, a count might be
a bar to the indictment for stealing the wagon and added for the larceny where there had been an ac- harness. Mr. Bishop says, and this is the true doc
in the wagon.
Since completing my article on the above subject, I
trine, “that, although when a man has done a crimi- income should be regularly reduced each year by such nal thing, the prosecutor may carve as large an of
an amouut as will at the maturity of the securities fense out of the transaction as he can, yet he is
make good the premiums paid; that it is immaterial
whether there is any loss of premiums; that if the life at liberty to cut but once.' So, in this case, the
tenant after having been compelled to pay out of his prosecutor has attempted to carve out of the trans
income a large sum to make good the premiums dies, action the crime of burglary, of which the accused and the securities are sold for the amount which was was acquitted, and he should not now be allowed paid for them, or even at a higher premium, the re
maiuderman is nevertheless entitled to the amount to carve out the crime of larceny."
which has been deducted from the life tenant's share
be founded in justice, to donate to the remainderman LIFE TENANT AND REMAINDERMAN.
out of his own income a portion thereof that the
profit, which the remainderman makes by the sale of INCE
the securities at an enhanced premium, may be further have discovered a recent case in the Massachusetts increased at the expense of the life tenant, and this Supreme Court on the subject of liability of life ten- injustice is to be perpetrated, because forsooth the ants to make good premiums paid on investment of money was invested at a premium. A weighty reason moneys in which another has a remainder interest. to support such a monstrous perversion of justice. On The question is so important that I deem it of inter- the other hand Judge Holmes would have a deducest to the profession to refer to the case somewhat tion made from the interest to make good any deficit particularly. The case is New England Trust Co. v. in the principal sum invested by reason of the payEaton, and is reported in 25 Am. Law Reg. at p. 162. ment of the securities at maturity, or their sale before The question presented was very clearly stated by that time at or below par, or for a smaller premium Devens, J., who wrote the prevailing opinion: “This than that which was originally paid for them; but in is an appeal from a decree affirming a decree of the case there should be no loss, he would have this reProbate Court by which the account of the New Eng- serve fund paid over to the life tenant or his represenlaud Trust Co., a trustee holding a fund the income of tatives. Now let us consider the reasoning by which which was payable to a tenant for life with remain- Judge Devens attempts to support the judgment of der over, was disallowed. The system which had been the majority of the bench. He says: “That which is pursued by the trustee with reference to the invest- really income from a bond purchased at a price above ments which it had made in bonds and other promises par, say $120 and payable in ten years, is not the to pay of the United States government or of munic- amount received in interest annually, but that amount ipal or railroad corporations, due on a certain day for deducting therefrom the sum necessary to restore at which premiums had been paid, was to ascertain by the end of the ten years the $20 premium. No prutables in use among baukers and broker what was in dent man would treat as income from his property the fact the net income arising from these promises, con- whole amount received when there was thus to be a sidering the premium actually paid by the investing diminution of his principal amounting at the end of trustee which would not be repaid at the maturity of ten years to this premium, and steadily tending to the bond, the rate of interest, the date of payment of this during the entire period. To deal with interest the security, and to pay over this net income to the thus received, as income purely, would to the extent of life tenant; the difference between this uet income the premium exhaust the capital. The premium paid and the actual rate of interest as received going to a is no more than an advance from capital which the refund which at the date of the maturity of the promise mainderman is entitled to have repaid if he is entitled would leave the original capital intact. The decree to receive the capital intact.” appealed from directed the trustee to pay to the life The fallacy of this argument is in its ignoring the tenant the sums thus retained for the purpose of be- fact that there are two different persons interested in ing returned to capital."
the same investment. But first let us cousider another The Supreme Court on appeal reversed this decree, of the many fallacies in which this opinion abounds. holding that the action of the trustee was correct. It is true that no one regards as net income the actual Three of the most eminent members of the bench interest received on securities purchased at a premium. however dissented. The dissent however of Judge But suppose he sells the bonds at the same premium Holmes who wrote the only dissenting opinion is not as that for which he bought them or at a greater premin the judgment of the writer sufficiently vigorous or ium, will any one deny that the interest actually refar reaching. On the very threshold of his argument ceived truly represents his net income from the inhe says: “If the opinion of the majority rests ou the vestment? And yet Judge Devens assents that in ground that so far as appears the trustees might have such a case the life tepant must lose the amount de. made their investments with the intent to keep them ducted from the interest received to make good a loss until the trust expired or the bonds matured, and in which never occurs. If the remainderman receives the exercise of its discretion as a business manager, in the full premium, and so loses nothing by the investo: view of the particular circumstances of the cases, ment the interest actually received by the life tenant thought it necessary to retain a fund in suspense coustitutes the real net income from the investment against a probable loss of premium, speaking for myself just as truly as though the life tenant and remainderalone I should have been disposed to acquiesce in that man had been one person, and yet Judge Devens asopinion.” The case states that the chief justice and serts that the life tenant shall not be paid the fund Mr. Justice Allen concurred in the views expressed by | deducted from the interest, or in other words, that he Judge Holmes, but it does not appear that they quali- shall not be paid the net inconje to which he is enfied their dissent as he did, and the fact that he says, titled, but something less. It is right here that Judge " speaking for myself alone,” would seem to indicate Holmes expresses his dissent. But it requires no arthat their dissent was more radical. The only differ- gument to expose the sophistry and utter puerility of ence between the prevailing opinion and the dissent- a doctrine which justifies the deduction from a life ing opinion is that the former makes the deduction tenant of annual interest of a certain sum, on the from the interest or income absolute and the latter theory that the interest is more than the net income, contingent upon loss. Judge Devens assents that the and then continues to withhold from the life tenant
the sum so deduoted after it is shown beyond ques. | curity will be due in five or fifty years, as his interest tion that the interest received is not more than the terminates with his life, and the difficulty of securing Det income, but does in fact constitute the net income good investments is not so great that the life tenant and is not a penny in excess of it. Now let us recur should bave a very deep interest in the permanency of to the other point. Judge Devens says in effect. The the investmment. And if it be thought that he does interest received is not net income, because the pre- derire some slight benefit from it, still he ought not mium must be taken into consideration. Where life to be required to make good the whole premium paid tenant and remainderman are one person, it is clear on tbat account, or any part of it, as he necessarily that if the securities are paid or sold for a smaller loses as much by the loss of the interest on the prepremium, the holder loses 80 much out of his mium paid, as he gains by the permanency of the segross income, and the difference represents his net in- curity; and the remainderman, whose estate is absocome. But where they are two distinct persons, each | lute, may by reason of the life tenant's death shortly of the two must bear a share of the loss, and the ques. | after the investment, be the only person benefited by tion to be settled on principle is, in what proportion | the permanency of the security. It is manifest that ought the loss to be borne ?
it would be extremely unjust arbitrarily to charge a The whole trevd of the argument of Judge Devens life tenant with any more loss on account of the peris to the effect that the rate of interest is the only manency of a security than that which he is certain to factor which affects the premium paid, and that the sustain by the loss of interest on that portion of the fact that a security is at a premium conclusively premium which is occasioned by the permanency of the shows that the rate is bigher than the market rate,and investment. So whether it be admitted that the rate that such being the case, the premium paid is paid for of interest alone, or the rate of interest combined with the exclusive benefit of the lire tenant, and he alone the duration of the investment, controls the amount should make good the loss. In what way does the of premium, the inference that the life tenant should premium paid benefit the life tenant? Conceding for deduct from his income a sum to make good the posthe purpose of the argument that the assumption, sible loss of principal is not a legitimate inference. which has uo foundation in fact, that the premium But these two factors, rate of interest and permapaid incontrovertibly establishes the fact that the rate pency of investment, are not the only elements which of interest payable on the security is above the market go to make up the amount of premium. The question rate, how is the life tenant benefited by the invest- of the safety of the investment regulates in part, nay ment? It is just as fair an assumption, pay a more largely regulates, the preminm paid. This is apparent legitimate assumption, because it has its foundation in when we remember that government three per cent reason, and is supported by daily experience, that the bonds are at a premium, while money is loaned on premium paid will be and is commensurate with the bond and mortgage at par for five or six per cent. rate of interest which the security bears, and that the Surely a higher rate of interest and the difference in premium will be usually, if not invariably, so high that the permanency of the security do not account for the the net interest received from the investment, the in- | premium paid on the purchase of government bonds. terest being payable on the par value of the security, But Judge Devens reasons in this way: He says that and the sum on which the net interest is to be com- trustees are bound to make absolutely safe investputed being the sum paid for the par value and the ments, aud that if there are two securities in which premium in addition, will be after all only the market they are authorized to invest, and one is at par and rate. To illustrate, suppose that the market rate of the other at a premium, the other must be at a preinterest is four per cent. It is fair to assume, if the mium, because of a difference in the rate of interest, premium is regulated, as Judge Devens asserts, solely and not because of a difference in the safety of the by the rate of interest above the market rate, that a investment, for the simple reason that there canpremium on a six per cent security will be fifty per not be any such difference, as they must both be cent. The net amount of interest received by the life absolutely safe. Admit the correctness of the major tenant on the principal sum invested would be just premise, and the syllogism fows on to the learned the same as if the money had been invested in a four judge's conclusion with irresistible force. But tbat per cent security at par, namely, four per cent. The premise is not sound. There is no rule of law requirwriter fails to see how the life tenant is benefited by ing an investment by a trustee to be absolutely safe. such an investment, more than he would have been | He is somewhat restricted as to the class of securities benefited by the investment in four per cent secur- in which he may invest, but if he keeps within the ities at par. It will not do for Judge Devens to say limits of these restrictions, he is bound to exercise that the rate of interest over the market rate and the only reasonable care and prudence. All the authoripremium are not commensurate. The very founda- ties hold that he may invest on bond and mortgage, tion on which he reasons is fatal to such an assertion. and that the investment is a proper one, it prudent, It is extremely illogical to lay down, as the basis of an even though it result in a loss. King v. Talbot, 40 N.Y. argument, the proposition that the premium is regu- 76; Mills v. Hoffman, 26 Hun, 594; 2 Kent Com. 416, lated in all cases solely by the excess of interest over note b; Halsted v. Meeker, 3 C. E. Green, 136; Laththe market rate,and then brush aside this proposition, rop v. Smalley, 8 id. 192:Hemphill's Appeal, 18 Penn. when it is found to be in the way of a predetermined St. 303; Thomson's Appeal, 43 id. 431; French v. Car. conclusion, and assert that the premium and excess of rier, 47 N. H. 88; Barney v. Parsons, 54 Vt. 623; Murinterest are not commensurate. The trouble with the ray v. Flindur, 2 Md. Ch. 418; Smyth v. Burns, 25 Miss. learned judge's argument is that he is forced to state 4:22; Snelling v. McCreary, 14 Ricb. Eq. 291; Perry his major proposition too broadly in order to justify Trusts, $ 458. Many of the authorities lay down a his deduction, or rather to give it the semblance of more literal rule. justification. He then qualifies it, and states that the The right to invest in this class of securities (bond premium is governed by the rate of interest and the and mortgage) where due care is used, and the exemptime the security has to run before maturity. This tion of the trustee from any liability in case of loss, modification of his major premise will not render his provided he exercises ordinary prudence, are concludeduction any more souud. So far as the premium is sive against the argument that the safety of the secucontrolled or affected by the time the security has to rity does not play any part in fixing the premium paid. run before it is payable, the life tenant should not be On the contrary, they establish beyond cavil or possirequired to make good the premium, because it is a bility of refutation that the safety of the investment matter of but little importance to him whether the se
is one of the chief elements in determining the pre
mium to be paid. Does a trustee invest money on bond 3. In so far as the security springs from the safety
stanti it is deducted and set apart, absolutely a porIn this sound opinion the obief justice and Mr. tion of the principal, and must go to the remainderJustice Charles Allen concurred. To recapitulate, the man, even though the investment results, not in a loss, writer asserts:
but in an increase of the original principal sum. He 1st. That so far as premiums are occasioned by an ex- says: “It has been suggested that a suspense account cess of interest above the market rate, the life tenant might be kept by the trustee, to which sums such as should not be called upon to make good the loss, be- have in the case at bar been retained might be carried ; cause the premium which results from this cause will and if hereafter the bonds should be sold before mabe commensurate with the excess of interest, and the turity at an advance, the life tenant would be entitled investment will therefore net the life tenant no to receive therefrom all that was not required to regreater income than the same security at par, and he store the capital originally invested. This suggestion will therefore derive no benefit from it.
is based upon the theory that any possible profit made 2d. That to the extent that the premium results by the sale of the securities belongs to the tenant for from the permanency of the investment, the life ten- life, and still involves the idea that he must bear the ant ought not to be required to make up the deficiency possible loss." in the principal caused thereby, for the reason that The court distinguished the case of Hemenway v. his interest in the permanency of the investment is Hemenway, 134 Mass. 446. But the statement of that but slight, as it is not difficult to secure new invest- decision by Judge Devens himself shows that there is ments, and for the further reason that his interest in little if any difference between the two cases on printhe investment may terminate at any moment; and ciple. He says: “The tenants for life rely much upon the interest of the remainderman is to have the secu- Hemenway v. Hemenway, 134 Mass. 446. This was a rity run for a long time, that be may have the benefit bill in equity, by which was brought before us the of a permanent interest after the life tenant's death. wbole management of a large estate in which The greater the duration of the investment the more very ample discretionary powers had been given certain is the remaiuderman of deriving benefit from to trustees. The testator had left subjeot to its permanency when his estate vests in possession. the trust bonds payable at a fixed period. Moreover the life tenant does suffer all the loss be As between the tenant for life and the remainshould suffer in compensation of the slight benefit | derman, it was decreed that the trustees by the auwhich he receives from a permanent interest, by losing thority conferred by the clause of the will, “to hold annually the interest on the amount of premium the said property as they may receive the same, or at which is attributable to that cause. Besides it is not their discretion to sell the same,' were entitled to con: practicable to charge him with any portion of the pro- tinue their investments as such, and to retain these mium caused by the stability of the security, as just | bonds until they were paid off, and that the whole what portion thereof can be referred to that cause can- net income of the investments thus authorized must not be accurately calculated or even approximately es- go to the tenants for life by the terms of the will.' timated.
There was also an investment made by the trustees in