the clause from the constitution just quoted, that they have so agreed. The duty of the board of directors is twofold: First, to approve the claim; and, second, to order an assessment to pay it; and no member is under any obligations, expressed or implied, to pay an assessment for the liquidation of a claim against the association unless the claim has been approved by the board of directors, and the assessment ordered by the board. Waiving, therefore, all questions as to whether the board of directors would be under any more obligations to approve this claim after a judgment had been rendered in favor of this plaintiff than before, it is sufficient to say that it seems clear to me that the sole power of determining whether the association should or should not pay a claim, and an assessment be ordered to pay it, is vested in this board of directors, and no court can review or re-examine their decision in that regard. The constitution says the action of the board shall be final, and the courts must so treat it. The motion in arrest of judgment is therefore well founded.

As to the motion for a new trial. It appears, without doubt, from the proof, that an assessment was made upon the fifth day of June, 1885, for the payment of a claim which had been duly approved by the board of directors; and this assessment should have been paid within 30 days from that day. Another assessment for the payment of a claim which had been duly approved by the board of directors was made on the first day of July, 1885, payable within 30 days from that date; and neither of these assessments had been paid at the time of Mr. Rood's death. Article 6 of the by-laws of the association provides as follows:

"Any and all members of this association neglecting or refusing to pay any assessment for the period of thirty days from date of such assessment shall cease to be a member, and the secretary shall strike his name from the roll of membership, and he shall only be readmitted to membership upon the payment of all unpaid assessments, and an additional fee of two dollars."

It is contended that this clause did not become operative against Mr. Rood, because the secretary did not strike his name from the roll of members, and did not notify him that he had ceased to be a member, but that, on the contrary, although in default, he was treated as a member by making further assessments against him. I do not think this position is well taken. As I have said, the default as to the June assessment was fully shown by the proof, and I am of opinion that the clear intent and purpose of this by-law was that it should be self-operating. As members were under no legal obligations to pay their assessments, the evident intention of this provision was to visit the serious consequences of loss of membership upon all who should refuse or neglect to pay their assessment. Every time a member of this association is called upon to pay an assessment he must make the election either to pay within 30 days, or suffer the penalty of loss of membership by neglecting or refusing to pay within that time. The language of the article is "he shall cease to be a member," and it becomes the duty of the secretary to strike his name from the roll of membership. This latter clause is purely directory to the secretary, and is not the act which severs the relation be

tween the member and the association. It is the failure of the member to pay his assessment within the time limited which terminates his membership, and not the action of the secretary in striking his name from the rolls; and the neglect of the secretary to perform this duty cannot defeat the operation of this provision in the fundamental law of the body. If, by merely neglecting to give notice to a defaulting member that his name had been stricken from the rolls, the membership is continued, it would then be in the power of the secretary to continue a defaulter as a member without the payment of his unpaid assessment and his additional fee of $2, which the articles expressly provide he shall pay before he can be rehabilitated with his rights of membership. I am therefore of the opinion that the court erred in directing the verdict for the plaintiff. For this reason the verdict of the jury must be set aside, and judgment rendered for the defendant.

STEWART and others v. SCHELL and others, Ex'rs, etc.

(Circuit Court, S. D. New York. December 1 and 2, 1886.)

CUSTOMS DUTIES-INTEREST.

In an action commenced November, 1863, against a collector of customs, to recover excess of duties, and brought to trial in December, 1886, where the question of the right of the plaintiffs to recover interest on the principal sum thereof is submitted to the jury, if the jury find that the plaintiffs have been guilty of laches in prosecuting the action from the date of the commencement of the same until the date of the trial thereof, though entitled to recover the principal sum of such excess, the plaintiffs are not entitled to recover any interest. If the jury find that the plaintiffs have been guilty of such laches for a part only of such time, then the plaintiffs are not entitled to recover interest for such part thereof.

This action was commenced November 27, 1863, to recover, with interest, certain duties exacted of the plaintiffs by the late Augustus Schell, as collector of customs at the port of New York, during 1857, 1858, 1859, 1860, and 1861. December 26, 1863, the defendant appeared therein, and demanded a bill of particulars of the plaintiffs' claim, and a copy of their complaint, (declaration.) April 28, 1864, the plaintiffs served a common-law declaration, alleging indebtedness as existing at the time of the commencement of the suit. May 17, 1864, the defendant served his plea of non assumpsit. March 13, 1876, on the consent of the respective parties, an order was made referring this action to a referee for his determination and adjustment of the plaintiffs' then supposed cause of action therein, to recover duties exacted on commissions above the usual rates, and on non-dutiable charges, under section 1 of the act of March 3, 1851, (9 U. S. St. at Large, 629,) but in reality there was no such issue in the case. June 26, 1883, the plaintiffs not having served their bill of particulars, the court, upon the defendant's motion, ordered the service by plaintiffs of such bill. February 27, v.31F.no.2-5

1884, pursuant to this order, the plaintiffs served such bill, setting forth a list of vessels by which their importation in suit were made, the dates of arrival thereof, and the dates, etc., of their protests, and claiming to recover certain fees of the kind held to be illegal in the case of Barber v. Schell, 107 U. S. 617, 2 Sup. Ct. Rep. 301, and certain duties exacted on certain linen and cotton goods. Subsequently, and in 1884, these fees were refunded. On the trial the cotton and linen issue was the issue tried.

It further appeared, from the testimony of the plaintiffs' witnesses, that a very large number of cases involving the charges and commission issue were brought between 1861 and 1865; that about that time the legal principles applicable to that issue were settled, and the government began to make refunds in these cases; that refunds were slowly made; that the government frequently stopped refunding, and then fresh litigation ensued; that it was customary when an issue had been tried, determined in favor of the plaintiffs, and such determination acquiesced in by the secretary of the treasury, to refer to a referee other cases involving a similar issue, for the adjustment by him of the amount claimed therein by the plaintiffs; that in pursuance of this custom, and in the belief that there was involved in the action at bar an issue upon charges and commissions, this action was referred as aforesaid, to a referee, for such adjustment by him as to that issue, on the request of the plaintiffs' attorney of fact; that the original attorneys of record for the plaintiffs had been succeeded by another attorney, who subsequently, and in 1876, died; that a third attorney was substituted in his place, and a fourth in his; that the plaintiffs' papers had been lost or mislaid; that in consequence of all these facts the progress of this action, on the part of the plaintiffs, had been delayed; but it also appeared, from the testimony of the plaintiffs' witnesses, that a common-law action pending in this court could be noticed for trial, put upon the calendar, and, when reached, moved for trial, by either party thereto; that, so far as known, there was no protest in this action against the exaction of duty on charges and commissions; that no attempt, after the order of reference was granted, was made by the plaintiffs to bring the supposed charges and commissions issue therein to trial before the referee; and no attempt was ever made to bring to trial any of the issues set out in the plaintiffs' bill of particulars. It still further appeared, from the evidence in the action, that all the officers of the government who, so far as shown by the indorsements upon the invoices and entries of plaintiffs' importations in suit, could testify concerning such importations, were dead.

Stephen A. Walker, U. S. Atty., and Thomas Greenwood, Asst. U. s. Atty., for the defendant, contended

That upon the foregoing facts the plaintiffs, even though entitled to recover the principal sum of duties claimed by them to have been illegally exacted, were not entitled to recover interest thereon; and in support of this contention relied upon the case of Redfield v. Ystalyfera Iron Co., 110 U. S. 174, 3 Sup. Ct. Rep. 570; Bann v. Dalzell, 3 Car. & P. 376; Newell v. Keith, 11 Vt. 214; and Adams Exp. Co. v. Milton, 11 Bush, 49.

Samuel B. Clarke and William B. Coughtry, for plaintiffs.

WHEELER, J., (charging jury as to interest.) If you find a verdict for the plaintiffs, I desire you to answer the question as to whether you think, on the evidence, the plaintiffs ought to have interest on the money which has been detained. Generally, where money is detained from a plaintiff in such a way, he is entitled to interest. They are entitled to interest in this case, unless the delay in prosecuting this suit has been the fault of the plaintiffs. When a suit is brought, either party can advance it for trial. The law provides how a suit shall be brought, and as to the course of procedure. The plaintiff can proceed according to the course of the court, and press the case for trial; and the defendant can also have the case advanced and proceeded with for trial. If there is any delay contrary to the rules of the court in furnishing any papers, the defendant can apply to the court, and ask that the papers be required to be furnished according to the rules of the court. That is, the court is open to both sides after a suit is brought.

You have heard the testimony of the plaintiffs' witness on this subject, as to the attorneys, the issue as to fees and charges, and the reference, and all that, as to this case. It was begun in 1863, and has run till now,-23 years. If you think that delay was the fault of the plaintiffs, then you may return a verdict that the plaintiffs are not entitled to interest; otherwise, you will say that the plaintiffs are entitled to interest. If you think that for a part of the time they are to blame for the delay, you may say as to what part interest ought not to be allowed, and be prepared, when you return a verdict, if you return a verdict for the plaintiffs at all, to say how much interest, for what time you think interest ought to be computed, if any. If none at all, you can answer it, "without interest." If you think there ought to be interest, you can say, "with interest for the whole time," or, "with interest from such a time." We leave that to you, and we desire to have you agree upon this subject, and also to be prepared to answer when you come into court as to which articles, if any, the plaintiff's are entitled to recover.

Verdict for plaintiffs, without interest.

UNITED STATES v. OTEY and another.

(Circuit Court, D. Oregon. June 13, 1887.)

1. COUNTERFEITING INDICTMENT-SUFFICIENCY.

An indictment under section 5457, Rev. St., for counterfeiting, which states that the defendant "did falsely make, forge, and counterfeit four pieces of silver coin, of the coinage of the United States, called a dollar," is sufficient after verdict; the words of the section, "in resemblance or similitude of the coins coined at the mints of the United States," being a mere variation or exposition of the principal phrase, "falsely make, forge, or counterfeit" such coins; and the phrase "coinage of the United States" being the exact legal equivalent of "coins coined at the mints of the United States."

2. SAME-INTENT TO Defraud.

It is not necessary, in an indictment for counterfeiting, under said section, to allege that the act of counterfeiting was done with intent to defraud; and such intent, if an element of the crime as defined by the statute, is implied in the allegation of "falsely" making, and need not be specifically alleged. (Syllabus by the Court.)

Motion in Arrest of Judgment.

Lewis L. McArthur, for the United States.

William R. Willis, for defendants.

DEADY, J. On April 7, 1887, the defendants were accused by the grand jury of this district of the crime of counterfeiting. The indictment states that on November 16, 1886, in this district, "the defendants did falsely and feloniously make, forge, and counterfeit four pieces of silver coin of the coinage of the United States of America, called a dollar, contrary to the statutes in such case made and provided, and against the peace and dignity of the United States of America." The defendants pleaded not guilty to the charge, and on a separate trial Otey was found guilty as charged in the indictment. He now moves in arrest of judgment, because the facts stated in the indictment do not constitute a crime, in that (1) it does not state that the coin in question was made in the similitude and resemblance of any silver coins coined at the mint of the United States; and (2) it does not state that said coins were made with intent to defraud any person whatever.

The indictment was found on section 5457 of the Revised Statutes, as amended by the act of January 16, 1877, (19 St. 223.) So far as this case is concerned, it enacts that every person who falsely makes, forges, or counterfeits any coin in resemblance or similitude of the silver coins which have been or hereafter may be coined at the mints of the United States, or who passes, utters, publishes, or sells, knowing the same to be false, forged, or counterfeit, with intent to defraud any body politic or corporate, or any other person whatsoever, or has in his possession any such false, forged, or counterfeit coin, knowing the same to be false, forged, or counterfeit, with intent to defraud any body politic or corporate, or any other person whatsoever, shall be punished by a fine of not more than $5,000, and by imprisonment at hard labor not more than 10 years.