Opinion of the Court. contracts in suit. The payment of all the instalments of purchase money is a condition precedent to the performance of the land company's covenant to convey. In respect to the nine applications for purchase declared in counts forty-one to forty-nine, inclusive, of the declaration, while the terms are not so clearly expressed as in the twenty contracts already considered, it is fairly implied that the instalments of purchase-money were to be paid before the land company was under any obligation to convey. The forty-ninth count, based upon the application to purchase lot 11, does not stand upon any different principle from the rest. It is true that the purchaser did not pay the first instalment in full, but the land company had the right to accept the partial payment, and treat the contract as a subsisting one; and it was so treated by Loud, who took possession of the lot, and exercised acts of ownership over it up to 1888 at least. Under these circumstances he is not in a position to claim that the contract was terminated because of his own failure to pay the first instalment in full. It is earnestly urged on behalf of the plaintiff in error that the contracts declared upon required the land company to deliver stock in the irrigation companies, which should represent and convey title to water or water rights to the extent of one inch of water under four-inch pressure, measured from centre of aperture, for each one hundred shares of stock. In other words, that the purchaser's contracts entitled him to water rights as distinguished from stock in the irrigation companies, by means of which water could be procured in the quantity designated. This position cannot be sustained, for the contracts by their express terms stipulated for the transfer of stock in the designated irrigation companies, which stock was to be delivered and accepted subject to the by-laws of such companies. The statement that this stock represented so many inches of water, under a certain pressure, were words of description as to the quantity of water which the irrigation company would undertake to furnish to the owner of the designated shares of stock. It is urged that the stock which the land company had Opinion of the Court. transferred to Loud, and produced for his acceptance at the trial, was not shown to have been fully paid up. This objection is not well taken. It appears by the testimony of the secretary of the land company that the land company delivered water until February, 1887 before the organization of the irrigation companies. It is further shown that the land company had numerous artesian wells, pipe lines, flumes, and ditches from which water supplies were furnished for irrigating purposes; and it further appears that these wells, water facilities, pipe lines, etc., were transferred by the land company to the several irrigation companies, which, in consideration thereof, delivered fully paid up stock to the land company, or to a trustee for its benefit. Certificates of this stock were, under proper directions of the officers of the land company, made out in the name of Loud, and produced and tendered at the trial. There is no evidence showing that the consideration given by the land company for the shares of stock in the irrigation companies was in any way inadequate, so as to impair its right and title thereto as fully paid up stock. It is further said on behalf of the plaintiff in error that the stock proposed to be transferred to him gave no special rights or privileges, and constituted no easement to the lands purchased. This is, however, a mistake. In the articles of association of each of the irrigation companies, which were put in evidence, it is declared: "That the purpose for which this corporation is formed is to acquire water, water rights, flumes, ditches, aqueducts, reservoirs, and other property that may be necessary or convenient for the supplying of water to such person or persons or their assigns in the counties of Los Angeles and San Bernardino, State of California, to whom the Pomona Land and Water Company has sold water rights, or to whom it may hereafter sell water right or to whom it may transfer water stock of this corporation, but to no other person or persons whomsoever." In addition to this provision in the charters of the irrigation companies, it is provided by § 552, Deering's Anno. Stats. and Code of California, relating to the right to water, to irrigate lands sold by water or irrigating companies, that "whenever Opinion of the Court. any corporation organized under the laws of this State furnishes water to irrigate lands which said corporation has sold, the right to the flow and use of said water is and shall remain a perpetual easement to the land so sold, at such rates and terms as may be established by said corporation in pursuance of law." Those provisions are recognized and sustained by the courts of California in McFadden v. County of Los Angeles, 74 California, 571, and Applegarth v. McQuiddy, 77 California, 408. It is shown that the defendant in error had the requisite amount of stock in the irrigation companies to perform its contracts with the plaintiff in error, and the land company offered to prove, as a matter of fact, that the stipulated quantity of water was attached to the lands by the stock in the irrigation companies, but this offer was withdrawn on the objection of the defendant below that it was immaterial. The proper construction of the contracts was that the defendant in error was to deliver stock in the designated irrigation companies which would attach to the land and entitle the purchaser to the quantity of water represented by the stock, and the stock which the land company thus held and proposed to transfer was clearly within the terms of the contract. There are other points of minor importance presented on behalf of the plaintiff in error, but the controlling question in the case turns upon the character of the covenants contained in the contracts, and in the view we have taken of that matter the defendant in error had the right to enforce the payment. of the purchase money for the lands agreed to be purchased without first having conveyed or tendered a conveyance of the lands purchased. This question of law, depending upon the proper construction of the contracts, was not affected by any evidence, either introduced or offered. Our conclusion is that there is no error in the judgment of the court below, and it is accordingly Affirmed. Statement of the Case. EVANS v. UNITED STATES. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA. An indictment should charge the crime, alleged to have been committed, with precision and certainty, and every ingredient of which it is composed must be accurately and clearly alleged; but it is not necessary in framing it to set up an impracticable standard of particularity, whereby the government may be entrapped into making allegations which it would be impossible to prove. Applying this rule, the eighth count in the indictment, charging the prisoner with unlawfully procuring the surrender and delivery to himself of the funds of a national bank of which he was a director, and the fourteentn count, charging him with knowingly and fraudulently aiding in procuring the discount of unsecured paper by the bank, are examined in detail, and are held to be sufficient to sustain the conviction. A verdict of guilty, entered upon all the counts of an indictment, should stand if any one of them is good. PLAINTIFF in error, who was a director in the Spring Garden National Bank, was indicted for an alleged violation of Revised Statutes, § 5209, which reads as follows: "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; with intent, in either case, to injure or defraud the association or any other company, body politic or corporate, or any individual person, 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 146 counts, upon all of which, except 24, a nolle pros. was entered. A demurrer was filed to all these remaining counts, which was overruled. The defendant was then arraigned, pleaded not guilty, was put upon trial, and convicted upon all the 24 counts, and sentenced Statement of the Case. to five years' imprisonment. A motion for a new trial and in arrest of judgment being overruled, defendant sued out this writ, assigning as error the action of the court in overruling his demurrer, and in refusing to arrest the judgment on account of the insufficiency of the indictment. The case was originally argued in this court upon the sufficiency of all these counts, and a reargument subsequently ordered upon the eighth, ninth, tenth, and fourteenth. A copy of the eighth count, which was a representative one of its class, and in its framework and structure was similar to all the counts to which the attention of the court was called, is here given: "8. And the grand inquest aforesaid, inquiring as aforesaid, upon their respective oaths and affirmations aforesaid, do further present that heretofore, to wit, on the eighth day of May, A.D. 1891, the said Nelson F. Evans, yeoman, late of the district aforesaid, at the district aforesaid and within the jurisdiction of this court, did knowingly, wilfully, unlawfully, and fraudulently aid and abet one Harry H. Kennedy, (the said Harry H. Kennedy being then and there cashier of a certain national banking association then and there known and designated as the Spring Garden National Bank, in the State of Pennsylvania, which said association had been theretofore created and organized under and by virtue of acts of Congress in such case made and provided, and which said association was then and there acting and carrying on a banking business at Philadelphia, in the said district, under the acts of Congress in such case made and provided,) then and there to wilfully misapply a certain large amount of the moneys, funds, and credits then and there belonging to the said national banking association for the use, benefit, and advantage of the said Nelson F. Evans, then and there with intent in him, the said Nelson F. Evans, to injure and defraud the said national banking association that is to say, the said Harry H. Kennedy, late of the district aforesaid, heretofore, to wit, on the day and year aforesaid, in the district aforesaid, and within the jurisdiction of this court, being then and there cashier, as aforesaid, of the said national banking association |