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Opinion of the Court.

5th. The second count of the indictment is for the offence of abstracting the moneys and funds of the association. In substance, it charges that the defendant was president and agent of the Second National Bank of Jefferson, theretofore duly organized and established, and then existing and doing business, under the laws of the United States; and that the defendant, being president and agent as aforesaid, did then and there "wilfully and unlawfully, and with intent to injure the said national banking association, and without the knowledge and consent thereof, abstract and convert to his, the said Stephen A. Northway's, own use certain moneys and funds. of the property of said association, of the amount and value," &c. We see no reason to doubt the sufficiency of this description of the offence. It is true that the word "abstract," as used in this statute, is not a word of settled technical meaning like the word "embezzle" as used in statutes defining the offence of embezzlement, and the words "steal, take, and carry away," as used to define the offence of larceny at common law. It is a word, however, of simple, popular meaning, without ambiguity. It means to take or withdraw from, so that to abstract the funds of the bank, or a portion of them, is to take and withdraw from the possession and control of the bank the moneys and funds alleged to be so abstracted. This, of course, does not embrace every element of that which under this section of the statute is made the offence of criminally abstracting the funds of the bank. To constitute that offence, within the meaning of the act, it is necessary that the moneys and funds should be abstracted from the bank without its knowledge and consent, with the intent to injure or defraud it or some other company or person, or to deceive some officer of the association, or an agent appointed to examine its affairs. All these elements are contained in the description of the offence in the count in question; the count is, therefore, sufficient within the decisions of this court upon similar statutes. United States v. Mills, 7 Pet. 138; United States v. Simmons, 96 U. S. 360; United States v. Carll, 105 U. S. 611; United States v. Britton, 107 U. S. 655.

Unlike the word "misapply," as used in the same section,

Opinion of the Court.

the word "abstract" is not ambiguous, because it does not appear from other parts of the statute that there are two or more kinds of abstracting, both unlawful, but only one described as a criminal offence. The word "abstract," as used in the statute, therefore, has but one meaning, being that which is attached to it in its ordinary and popular use. It is to be accepted with that meaning in framing an indictment under the section, which is not required, in order to be sufficient, to contain more than those allegations which are necessary, when added to the allegation of abstracting, to complete the description of the offence intended by the statute. This the count in question sufficiently does.

It is contended, however, on behalf of the defendant, that the offence of "abstracting" the moneys and funds of the bank under this section of the statute is exactly equivalent to the offence of larceny, and that it can only be technically and appropriately described by the words used to describe the offence of larceny. So that the charge should have been "did abstract, take, and carry away." The answer to this point, it seems to us, is twofold. If, as is contended, an analysis of the section of the statute demonstrates that the legislative intent was simply to describe the offence of larceny by an officer or agent of the bank of its funds, then there is no ambiguity or uncertainty in using the word "abstract" in the indictment, as used in the statute, fully to describe the offence charged; for, according to the argument, it can mean nothing else, and the legislature, by substituting the word "abstract" for the words which are required technically to describe the offence of larceny, have justified the use of the same word in the indictment. But, in the next place, we do not admit the proposition that the offence of "abstracting" the funds of the bank under this section is necessarily equivalent to the offence of larceny. The offence of larceny is not complete. without the animus furandi, the intent to deprive the owner of his property, but under § 5209 an officer of the bank may be guilty of "abstracting" the funds and money and credits of the bank without that particular intent. The statute may be satisfied with an intent to injure or defraud some other

Opinion of the Court.

company, body politic or corporate, or individual person, than the banking association whose property is abstracted, or merely to deceive some other officer of the association, or an agent appointed to examine its affairs. This intent may exist in a case of abstracting without that intent which is necessary to constitute the offence of stealing. We answer the fifth question, therefore, in the affirmative.

6th. The sixth question is whether the indictment sufficiently states that the Second National Bank of Jefferson was organized under the national banking act, or to carry on the business of banking under the laws of the United States. The language of the indictment is that the defendant "was then and there president and agent of a certain national banking association, to wit: The Second National Bank of Jefferson, theretofore duly organized and established and then existing and doing business at the village of Jefferson and county of Ashtabula, in the division and district aforesaid, under the laws of the United States."

We do not understand the necessity of this question; the allegation seems to be perfectly explicit. The defendant is charged by virtue of his office as president and agent of a national banking association, to wit: The Second National Bank of Jefferson, which, it is further alleged, had been theretofore duly organized and established and was then existing and doing business under the laws of the United States. This can mean only that it was organized and established as a banking association under the act of Congress authorizing the organization and establishment of national banks, and that it was in existence and doing business at the time of the alleged offence as such national banking association, because it could not be organized and established and existing and doing business under the laws of the United States in any other capacity. .This question is accordingly answered in the affirmative.

These answers will be accordingly certified to the Circuit Court.

Statement of Facts.

THE L. P. DAYTON.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

Argued January 21, 24, 1887.- Decided February 7, 1887.

If a vessel in tow by one steam-tug collides on navigable waters with a vessel in tow by another steam-tug and is injured, and the two tugs are libelled in one proceeding in admiralty to recover damages for the injuries sustained, the burden of proof is on the libellant to establish negligence against each tug separately; and admissions in the answer on the part of one tug cannot be used against the other tug to relieve the injured vessel of this burden.

The rule which presumes fault in case of a collision against a vessel in motion in favor of one at anchor does not apply to the case of a vessel moved by a steam-tug colliding with another vessel moved by another steamtug.

If a vessel towed by a steam-tug, colliding with a vessel towed by another steam-tug, libels the other steam-tug, its rights in the suit and its standing in court will be the same which its own steam-tug would have had, in case the collision had been directly with her; but if it libels its own steamtug, the latter is responsible, under its contract of towage, only for the results happening from the want of ordinary care on its part. The relative position of the steam-tug of the other tow to the appellant and its tug, before and up to the instant before the accident, and its action during that time, were not such as to constitute a violation of Rev. Stat. § 4233, rule 19, that "if two vessels under steam are crossing so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way of the other."

THE appellant, Thomas McNally, filed his libel in a cause of collision, civil and maritime, against the steam-tug L. P. Dayton, the steam-tug James Bowen, and the float or scow called Number Four, in the District Court of the United States for the Southern District of New York. The second article of the libel set out the cause of action as follows:

"2d. Heretofore, to wit, on the fourteenth day of February, 1879, the boat or barge Centennial, of the burden of about 300 tons, of which boat your libellant was master, was taken in tow by the steam-tug L. P. Dayton at the pier foot of Fifty-ninth Street, New York harbor, to be towed by the said

VOL. CXX-22

Statement of Facts.

tug to the Erie basin, near Atlantic docks, New York harbor. She was taken at or about five and one-half o'clock in the afternoon of that day. She was loaded with a valuable cargo, to wit, six thousand four hundred and fifty bushels, or thereabouts, of red wheat. She was then stanch and seaworthy. When the L. P. Dayton left Fifty-ninth Street pier she had in tow four boats or barges, of which the boat Centennial was one; these were placed two on the port side of the said tug and two on her starboard side. The Centennial was the inside starboard boat — that is, the one lashed to the starboard side of the tug Dayton. The Centennial was a boat one hundred and three feet in length, and when fastened to the tug, as aforesaid, her bow projected some twenty feet beyond the bow of the said steam-tug. The evening was quite clear and starlit. The tug and tow being made up as aforesaid proceeded down the river, the tide being ebb, until about opposite Eagle pier, Hoboken, when the tug put into shore and there left one of the boats that had been fastened to her port side.

"After the port boat had been left at the Eagle pier as aforesaid, the tug, with the remaining three boats, resumed her course, proceeding down the river. When about opposite Pier 1, North River, and when about three hundred yards from the New York shore, the said boat Centennial was run into by the float or scow called Number Four, which was then in tow of the steam-tug James Bowen, and received such injuries that she very soon thereafter sunk with her cargo. At the time of the collision darkness had set in, and your libellant is unable to speak of his own knowledge with entire accuracy of the movements of the vessels aforesaid. But he is informed and believes the truth to be as follows, that is to say:

"Before the collision aforesaid the steam-tug James Bowen, having the float or scow Number Four lashed to her port side, was proceeding from some point on the East River to the Long Dock, Jersey City. She had rounded the Battery, and at the time of the collision was on a course opposite or nearly opposite the course then being taken by the tug L. P. Dayton

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