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inquired into in such a proceeding (130 Fed. 486), but is a question to be decided by the court in which the indictment is found. All technical objections, all criticisms growing out of the artificial and often strained scrupulousness of criminal procedure are to be left to the court in whose jurisdiction the indictment is found, if such indictment itself contains a narration of events or acts which tend to establish the existence of the offense sought to be charged. Where, however, even upon a broad, liberal, and inartificial construction of the language of the indictment, it does not appear that any offense against the laws of the United States has been committed, the section (1014, Rev. St. [U. S. Comp. St. 1901, p. 716]) does not apply, and the prisoner should not be held for removal.

The crime with which the indictment purports to charge the petitioner is defined in section 5140, Rev. St. U. S. (U. S. Comp. St. 1901, p. 3676] :

"5140. 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 conspiracy shall be liable to a penalty of not more than ten thousand dollars, or to imprisonment for not more than two years, or to both fine and imprisonment in the discretion of the court.”

There are 30 counts in the indictment, each concerned with a separate transaction. It will be necessary to consider a single count only, since all are substantially alike. The pleader has followed the archaic forms of expression commonly used in criminal practiceobscure, involved, tautological, and verbose. A single sentence runs stumbling over several printed pages without a period. The meaning can be discovered only by carefully rewriting the sentence actually or mentally, so as to conform it to the canons of modern English. When this is done, it will be found that the facts upon which the charge of conspiracy is based are these: Heretofore the United States, being at the time the owner thereof, conveyed to the states of California and Oregon, respectively, certain sections of public land; the sections so conveyed to these states being known as school lands. These school lands, or at least some portion of them, the two states sold, granted, and conveyed to individual holders. Subsequently the United States decided to establish forest reserves in certain localities in those states (and elsewhere), and under authority of statute maps were filed designating the boundaries of such reserves. Within those boundaries it would happen that, besides land still belonging to the United States, there would be included school lands which had been transferred to the states, and which were still held by them, and also school lands which the said states had conveyed to private owners by patents duly executed, and also school lands as to which steps had been taken to secure patents from the states. Inasmuch as it was desirable that all lands within forest reserves should be under the absolute control of the government, the statutes further provided that United States public lands located outside the limits of the reserves might be exchanged for lands within the same, with assent of the owner. Presumably since the possibility of an increase in value would be greater outside than in, the owners gen



crally might be expected to accept the offer. The sections providing for such exchange are these:

In Act June 4, 1897, c. 2, 30 Stat. 34, 36 [U. S. Comp. St. 1901, p. 1538], supplemental to Act March 3, 1891, c. 561, § 24, 26 Stat. 1103 [U. S. Comp. St. 1901, p. 1537] :

"That in cases in which a tract covered by an unperfected bona fide claim or by a patent is included within the limits of a public forest reservation, the settler or owner thereof may, if he desires to do so, relinquish the tract to the government, and may select in lieu thereof a tract of vacant land open to settlement not exceeding in area the tract covered by his claim or patent; and no charge shall be made in such cases for making the entry of record or issuing the patent to cover the tract selected: provided further, that in cases of unperfected claims the requirements of the law respecting settlement, residence, improvements, and so forth, are complied with on the new claims, credit being allowed for the time spent on the relinquished claims."

In Act June 6, 1900, c. 791, 31 Stat. 614:

“That all selections of land made in lieu of a tract covered by an unperfected bona fide claim, or by a patent, included within a public forest reservation, as provided in the act of June fourth, eighteen hundred and ninety-seven, shall be confined to vacant surveyed and non-mineral public lands which are subject to homestead entry not exceeding in area the tract covered by such claim or patent: provided, that nothing herein contained shall be construed to affect the rights of those who, previous to October first, nineteen hundred, shall have delivered to the United States deeds for lands within forest reservations and make application for specific tracts of lands in lieu thereof."

This provision was re-enacted March 3, 1901, 31 Stat. 1037, c. 831 (U. S. Comp. St. 1901, p. 1544).

For reasons of public policy, which may be readily appreciated, these two states offered their school lands for sale with certain statutory restrictions. Sales were to be made only to citizens of the United States or to persons who had declared intention to become citizens, and only upon affidavit of the applicant showing his qualifications, and, amongst other things, his intention to purchase such lands in good faitli, and for his own benefit, and that he had made no contract or agreement to sell the same. Moreover, the amount of such lands which should be sold by the state to each resident applying therefor was restricted to 640 acres in California and 320 acres in Oregon. Once the sale was made, however, to a bona fide applicant, and title in him perfected by the delivery of a patent for the same, the lands so sold became his to dispose of as he pleased, and there is nothing called to the attention of this court in the legislation of those states which prohibits a purchaser from buying such lands from any resident patentees who miglit subsequently decide to sell, even although by such purchases he might become the sole owner of thousands of acres of such school lands.

The particular “false and fraudulent practice” which is charged as the gravamen of the conspiracy is this: Applications for purchase were to be made and filed in the names of fictitious persons, and in the names of persons not really desiring and not qualified to purchase the same, and of persons who had already assigned to the conspirators; and these applications were in many instances to be supported by false, fraudulent, or fictitious affidavits. The details need not be more particularly rehearsed. Suffice it to say that the school lands thus obtained by fraudulent practices from the two states were to be exchanged, under the statutes above quoted, for public lands of the United States lying outside the forest reserves; the said conspirators, in the language of the indictment, "intending thereby and by afterwards selling and disposing of such public lands and patent titles to the general public to defraud the said United States out of the possession and use of, and of the title to, the public lands so to be selected, obtained and appropriated in lieu of such school lands as aforesaid to the profit, gain, use and benefit of themselves.” Manifestly, the entering into such a scheme would be a conspiracy to defraud the states of California and Oregon, but it is difficult to understand upon what theory it can be held to be a “conspiracy to commit any offense against the United States or to defraud the United States in any manner.” There is nothing to show that the alleged conspirators ever contemplated offering to the United States Land Office in exchange for "outside” lands of the United States any “school” lands for which the state had not granted a patent to the applicant. When patented school lands are taken by ihe United States in exchange for other lands which constitute a valuable consideration, the government acquires a perfect title to such school lands. Authorities need not be cited, since it was conceded on the argument and on the brief that the title obtained by a patentee cannot be attacked collaterally for frauds practiced in obtaining it. The United States, therefore, assuming that the alleged conspiracy were consummated, would have obtained from the state patentee of school lands a perfect title acre for acre in exchange for its own “vacant surveyed and nonmineral public lands which are subject to homestead entry.” With the methods by which the patentee acquired his title from the state it had no concern. If state laws were violated, and the public policy of the state fraudulently evaded, it may be assumed that the state would punish the offender. The language of the federal statute apparently contemplates some inquiry as to whether the requirements of state law respecting settlement, residence, improvements, and so forth have been complied with in cases of “unperfected claims”; but none such is provided for when the tract offered in exchange is covered by a patent. The reason for the distinction is obvious. All that the United States wanted was a good title. Where a claim was unperfected, it would be necessary to ascertain what had been done to make it fruitful; where a patent had issued all such inquiry would be unnecessary. The conspiracy charged, as was said before, did not contemplate the offering in exchange for outside lands of any school lands except such as are covered by patent.

It is true that the result of the conspiracy would be that a single small group of individuals might become possessed by exchange of large holdings of outside lands, which might otherwise have been more widely distributed; but that would not be a fraud on the United States, because under the laws, state and national, as they stand, it would be possible for a single individual, acting in entire good faith, to acquire by purchase from honest, bona fide state patentees the title to all the school lands in the state, and, by exchanging them under the provisions of statute above quoted, to become the sole owner of an equal quantity of "outside" lands.

Upon the broadest construction which can be given to the indictment it does not set forth facts tending to show a conspiracy to commit any offense against or to defraud the United States, and the petitioner should therefore be discharged. Should the District Attorney desire to appeal, the petitioner will be required during its pendency to give bail in the amount fixed when this proceeding was instituted.

In re MERTENS et al.

(District Court, N. D. New York. August 13, 1904.) 1. BANKRUPTCY--ASSETS-SEMITONTINE INSURANCE POLICY.

A semitontine life insurance policy payable to a bankrupt or his assigns or legal representatives, which contains no provision for a cash surrender value, but, on the contrary, gives the insured no right except to a new paidup policy without participation in profits in case of lapse, unless it remains in force at the end of the full tontine period, which time had not arrived when the adjudication was made, passes to the trustee as an asset of the estate, under Bankr. Act July 1, 1898, c. 511, 8 70a, cl. 5, 30 Stat. 505 (U. S. Comp. St. 1901, p. 3151]; but such policy is not one having a "cash surrender value," within the meaning of the proviso to said section which entitles the bankrupt to retain the same on making a payment to

the trustee, although the company may offer to pay a sum for its surrender. 2. SAME-RIGHT OF TRUSTEE TO MATURE TONTINE INSURANCE POLICY.

A trustee in bankruptcy, acting by direction of the court, has the right to make the payments necessary to mature a tontine life insurance policy payable to the bankrupt or his assigns or legal representatives for the benefit of the estate, and will be required to do so where it is clearly in

the interest of the creditors. In Bankruptcy. On application for an order compelling the bankrupt to assign to the trustee certain policies of life insurance.

This is an application for an order compelling the bankrupt, Jacob M. Mertens, to assign, transfer, and set over unto Albert K. lliscock, as trustee in bankruptcy of the estates of the firm of J. M. Mertens & Co., and of the individuals composing said firm, certain policies of life insurance. The matter was referred to C. L. Stone, Esq., of Syracuse, N. Y., as special master to take evidence and report the facts with his findings and opinion. The report is that the policies in question passed to the trustee; that they have no cash surrender value; and that the trustee is entitled to take and hold them as against the insured, J. M. Mertens, notwithstanding the fact that said bankrupt has tendered the trustee the alleged cash value of said policies—that is, the sum the insurance company was willing to pay for a surrender thereof.

Lewis & Crowley, for trustee.
Wilson, Cobb & Ryan, for J. M. Mertens.

RAY, District Judge. The petition in bankruptcy herein was filed against the firm of J. M. Mertens & Co. and the individuals composing such firm or copartnership on the 18th day of August, 1903, and Albert K. Hiscock was duly appointed receiver of the estate, etc., of the alleged bankrupts. Thereafter, and on the 15th day of September, 1903, said firm and said individuals, including said Jacob M. Mertens, were duly adjudicated bankrupts, and on the 14th day of October, 1903, said Albert K. Hiscock was duly appointed trustee in bankruptcy of the estates of said bankrupts, both individually and as such copartners. Said trustee duly qualified. December 21, 1882, the Equitable Life Insurance Society of the United States issued its policy No. 252,314, assuring the life of Jacob M. Mertens. Prior to the institution of such bankruptcy proceedings this policy had become a simple life policy, payable to the wife of the assured, if living at his death; if not living, to his children, if any; and in default of child or children to the personal representatives of the assured. This policy concededly is so conditioned and incumbered, and the interest of the trustee therein, if any, is so remote and uncertain, that it is of no practical value to the estate, and it will not be further considered, and the bankrupt will be allowed to retain the same. March 8, 1881, said Equitable Life Assurance Society of the United States issued its policy No. 274,445, known as a “semitontine” policy, on the life of said Jacob M. Mertens. By this policy said assurance society, after the presentation of satisfactory proofs of the death of said Mertens, promised to pay to his executors, administrators, or assigns (less any indebtedness to the society on account thereof) the sum of $20,000. On its face this policy provides that after payment of premiums for not less than three complete years of assurance, if the policy shall thereafter become void in consequence of default in payment of subsequent premium, said society will issue, in lieu of such policy, a new paid-up policy, without participation in profits, in favor of said Jacob M. Mertens, his executors, administrators, or assigns, for the entire amount which the full reserve on said policy, according to the present legal standard of the state of New York, will then purchase as a single premium, calculated by the regular table for single premium policies now published and in use by the society; provided, however, that the policy shall be surrendered, duly receipted, within six months of the date of default in payment of premium. The policy further provides :

“This policy is issued and accepted upon the condition that the provisions and requirements printed or written by the society upon the back of this policy are accepted by the assured as part of this contract as fully as if they were recited at length over the signatures hereto affixed.”

Under the provisions and requirements referred to in the policy are these :

“(1) That this policy is issued under the semitontine plan, the particulars of which are as follows:

"(2) That the tontine dividend period for this policy shall be completed on the eighth day of March in the year nineteen hundred and four.

"(3) That no dividend shall be allowed or paid upon this policy unless the person whose life is hereby assured shall survive the completion of its tontine dividend period as aforesaid, and unless this policy shall be then in force.

“(4) That all surplus or profits derived from such policies on the semitontine plan as shall not be in force at the date of the completion of their respective tontine dividend periods, shall be apportioned among such policies as shall complete their tontine dividend periods.

“(5) That upon the completion of the tontine dividend period on 8th March, 1904, provided this policy shall not have been terminated previously by lapse or death, the said Jacob M. Mertens shall have the option, either: First, to withdraw in cash this policy's entire share of the assets—i. e., the accumulated reserve, which shall be six thousand and forty-six 40/100 dollars, and in ad

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