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Opinion of the Court.

of restraining him from executing the orders of his official head. To maintain such a bill against the subordinate officer alone, without joining his superior, whose acts are alleged to have been unlawful, would be contrary to settled rules of equity pleading. Calvert on Parties, (2d ed.) bk. 3, c. 13.

This is well exemplified by a decision of Lord Chancellor Hard wicke. Under acts of Parliament, appointing commissioners to build fifty new churches, appropriating money to support the ministers, and providing that the moneys appropriated should be paid to a treasurer, not one of the commissioners, but appointed by the Crown, and should be by him disbursed and applied according to orders of the commissioners, Lord Hardwicke held that a bill by a minister of one of the churches to recover his stipend, and to have a fund in the treasurer's hands invested as required by the acts, could not be maintained against the treasurer alone, without joining any of the commissioners; and said: “This is one of the most extraordinary bills I ever remember; and there is no foundation for relief, either in law or equity. It is brought against Mr. Blackerby, who is nothing but an officer under the commissioners for building the fifty new churches. It would be absurd if a bill should lie against a person who is only an officer and subordinate to others, and has no directory power.” “I should think the commissioners only, and not the treasurer, ought to have been parties, for it is absurd to make a person who acts ministerially the sole party." Vernon v. Blackerby, 2 Atk. 144, 146; S. C., Barnardiston Ch. 377.

This bill cannot be amended by making the present Secretary of the Interior a defendant, because he was not in office before the bill was filed, and had no part in the doings complained of.

As against the Commissioner of the General Land Office, the bill does not strictly abate, as upon the disappearance, by death or resignation, of the sole defendant in an action the. cause of which does not survive against representatives or successors. But the bill cannot be maintained against the Commissioner, because it shows no ground for relief against him alone, and the Secretary of the Interior is not and cannot now be made a party.

Syllabus.

The objection that the bill cannot be maintained against the Commissioner alone being decisive of the case, it would be inappropriate to express an opinion upon any of the graver questions, fully argued at the bar, touching the jurisdiction of the court, and the merits of the bill, or to leave the record in such a shape as to appear to foreclose any of those questions. It is therefore Ordered that the decree be reversed, and the case remanded,

with directions to dismiss the bill, with costs, for want of proper parties.

MR. JUSTICE BREWER and MR. JUSTICE BROWN concurred in the result.

AGNEW v. UNITED STATES.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE

SOUTHERN DISTRICT OF FLORIDA.

No. 447. Submitted November 13, 1896. – Decided January 11, 1897.

When a person is notified that his case is to be brought before a grand jury,

he should proceed at once to take exception to its competency, and if he has had no opportunity of objecting before bill found then he may raise the objection by motion to quash or by plea in abatement; but in all cases he must take the first opportunity in his power to make the objection. In this case the venire issued November 18; a second venire December 2; the court opened December 3; the indictment was returned December 12; the plea in abatement was Aled December 17. Held, that

it was too late. An exception was saved as to the taking of notes by a juryman; but, as

the record does not show that any notes were taken, there is nothing for

it to rest on. On the trial of the president of a national bank, indicted for misapplication

of its funds, its cashier testified in his favor as to his financial condition and standing. ' He was then asked — " do you know what his commercial rating was at that time?” The question being objected to was ruled

out. Held, that the ruling was correct. The same witness on cross-examination was asked why he had resigned

his position as cashier at a date named, which was after the acts com

Statement of the Case.

plained of and before the indictment. The question being objected to

was admitted. Held, that there was no error in this. The question at issue being what was the defendar knowledge and opin.

ion of his own financial condition evidence as to the opinion of others on

that point was properly excluded. The opinions of the financial world as to the rating or standing of the de

fendant when the acts complained of were committed were not admis

sible in evidence. In criminal cases, the burden of establishing guilt rests on the prosecution

from the beginning to the end of the trial; but when a prima facie case has been made out, the necessity of adducing evidence then devolves on

the accused. The instruction of the trial court to the jury in this case that “if you find

that the defendant placed that which was worthless or of little value among the assets of the bank at a greatly exaggerated value and had that exaggerated value placed to his own personal account upon the books of the bank, from such finding of fact you must necessarily infer that the Intent with which he did that act was to injure or defraud the bank, but

this inference or presumption is not necessarily conclusive,” was not error. The trial court is not bound to accept language which counsel employ in

framing instructions, nor to repeat instructions already given in differ

ent language. The court instructed the jury that “the crime of making false entries by

an officer of a national bank with the intent to defraud, defined in the Revised Statutes of the United States, section 5209, includes any entry on the books of the bank which is intentionally made to represent what is not true or does not exist, with the intent either to deceive its officers or to defraud the association. The crime may be committed personally or by direction. Therefore the entry of a slip upon the books of the bank, if the matter contained in that deposit slip is not true, is a false entry. If the statement made upon the deposit slips is false, the entry of it in the bank and the books of the bank is false” and refused to give the following, asked for by defendant; “ The making of a false entry is a concrete offence which is not committed where the transaction entered actually took place and is entered exactly as it occurred. . . . The truthful entry of a transaction charged as fraudulent: does not constitute a false entry within the meaning of the statute.” Held, that there was no

error. The evidence or want of evidence justified the refusals to give the instruc

tions requested by defendant's counsel, and referred to in No. 10, in the opinion of this court; and in regard to those referred to in No. 11, the true view of this branch of the case was fairly covered by the charge of the trial court..

PLAINTIFF in error was indicted in the United States Circuit Court for the Southern District of Florida for violation of section 5209 of the Revised Statutes, which is as follows:

Statement of the Case.

“Sec. 5209. Every president, director, cashier, teller, clerk or agent of any association, who embezzles, abstracts or wilfully misapplies any of the moneys, funds or credits of the association; or who, without authority from the directors, issues or puts in circulation any of the notes of the association; or who, without such authority, issues or puts forth any certificate of deposit, draws any order or bill of exchange, makes any acceptance, assigns any note, bond, draft, bill of exchange, mortgage, judgment or decree; or who makes any false entry in any book, report or statement of the association, with intent, in either case, to injure or defraud the association or any other company, body politic or corporate, or any individual person, or to deceive any officer of the association, or any agent appointed to examine the affairs of any such association; and every person who with like intent aids or abets any officer, clerk or agent in any violation of this section, shall be deemed guilty of a misdemeanor, and shall be imprisoned not less than five years nor more than ten.”

The indictment contained eight counts, charging that Agnew, being president of the First National Bank of Ocala, Florida, unlawfully misapplied the moneys, funds and credits of the bank with intent to convert them to his own use, and to injure and defraud the bank, by causing a check for $3400 belonging to the bank to be entered as a credit on his personal account with the bank, his account at the time being largely overdrawn, and he being largely indebted to it: That he caused a false entry of $3400 to be made to his credit on the books of the bank by means of a false deposit slip which he caused to be made in his own favor with the intent on his part to injure and defraud the association : That be embezzled and converted to his own use, with the intent to injure and defraud the association, moneys and assets thereof to the amount of $2500: That he unlawfully misapplied the moneys, funds and credits of the association with intent to convert them to his own use, and with intent to injure and defraud the association, in this, that he purchased for the bank certain bonds of the par value of $5000, of the Globe Phosphate Mining and Manufacturing Company, paying for them the

Statement of the Case.

sum of $2500, and, without the knowledge and consent of the banking association, placed the bonds among its assets, and caused them to be credited to his personal account on the books of the bank at the sum of $5000, knowing the bonds to be entirely worthless and of no commercial value, and thus wilfully misapplied the moneys, funds and credits of the bank to the amount of $2500, and converted the same to his own use: That he feloniously embezzled and converted to his own use $7500 of the moneys, funds and credits of the bank with intent to injure and defraud it: That he unlawfully and wilfully misapplied the moneys, funds and credits of the bank, with intent to convert the same to his own use and to injure and defraud the bank by purchasing, acting ostensibly for it, certain bonds of the Globe Phosphate Mining and Manufacturing Company of the par value of $10,000, for $2500, and, without the knowledge and consent of the bank, placing said bonds among the assets of the bank as a part thereof, and causing the sum of $10,000 to be credited to his own personal account on the books of the bank, he then and there well knowing that the bonds were worthless and of no commercial value, and thus wilfully misapplying and converting to his own use $7500 of the moneys, funds and credits of the association : That he embezzled and converted to his own use, with intent to injure and defraud the association, $7500 of the bank's moneys and assets: That he unlawfully and wil.. fully misapplied the moneys, funds and credits of the bank with intent to convert the same to his own use and to injure and defraud the bank by purchasing $10,000 of the Globe Phosphate Mining and Manufacturing Company's bonds for $2500, placing them without the knowledge and consent of the association among the assets of the association at $10,000, and causing the sum of $10,000 to be placed to his personal credit on the books of the association, knowing said bonds to be worthless and of no commercial value, thus wilfully misapplying and converting to his own use $7500 of the moneys, funds and credits of the bank with the aforesaid intent.

The indictment was returned December 12, and plaintiff in

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