Boyd, District Judge, delivered the opin- to the payment of another debt which the ion of the court: said lumber company held, or claimed to hold, against Franklin. This is an appeal from an order of the district court of the United States for the eastern district of North Carolina, sitting in bankruptcy, made in the matter of J. R. Franklin, bankrupt, allowing the Virginia-Carolina Lumber Company to prove a debt against the estate of the said bankrupt amounting to the sum of $750 and interest, the payment of which said debt was secured by deed in trust exccuted by Franklin to the said Virginia-Carolina Lumber Company within four months preceding the adjudication in bankruptcy. John A. Mills, the trustee of the bankrupt, filed objections to the proof of this debt on the ground that shortly before the adjudication in bankruptcy the Virginia-Carolina Lumber Company had received a preference in the distribution of the bankrupt's estate by taking into its possession $1,000 worth of lumber, property of the bankrupt, and applying it held that the assignee in bankruptcy of the debtor could not recover the value of such coal. The principle governing the case was stated as follows: "Where a creditor obtains a security upon property, the debt being incurred and the security obtained in good faith, the fact that the security is made available at a time when the creditor knows that the debtor is insolvent does not prevent the security from operating to the benefit of the creditor. In Re Pease Car & Locomotive Works, 134 Fed. 919, where a manufacturing corporation, a short time before its bankruptcy, contracted to sell two locomotive engines which were to be repaired and put in good condition by the bankrupt, and, after the repairs were completed, the name of the purchaser was painted on the engines, and they were inspected and accepted and paid for by the purchaser in accordance with the contract, but shipment was delayed on account of high water, and they had not been actually delivered to the railroad company at the time of the institution of the bankruptcy proceedings, it was held that the purchaser was entitled to the engines, as the transaction was entirely in good faith and no creditor of the vendor was in any way injured. In Douglas v. Vogeler, 6 Fed. 53, where it was orally agreed, at the time of the making of a loan obtained to relieve an insolvent from embarrassment, that a mortgage should be given upon the specific property upon which it was afterwards given, it was held that the giving of such mortgage did not constitute a preference within the bankruptcy law, although both the agreement and the subsequent giving of the mortgage in accordance therewith occurred with in the four months period provided by the statute. This decision was based upon the fact that the promise was to give a specific security and was made as the inducement The facts, in substance, are these: J. R. Franklin was a manufacturer of lumber, engaged in operating a planing mill in the eastern district of North Carolina. On the 4th day of January, 1905, Franklin borrowed from the Virginia-Carolina Lumber Company of Lynchburg, Virginia, $750 in cash and executed therefor two notes, each for $375, and each bearing that date, the one payable at four months and the other at six months, and, at the time of the said loan, the said Franklin executed to one Henry M. Sackett, as trustee, a deed in trust conveying certain of his property to secure the payment of the two said notes. On the 8th day of February, 1905, following the date of the loan, the said lumber company and the said Franklin entered into an agreement by which the former agreed to purchase from the latter and the latter upon which the advance was obtained, the court intimating that, had the security been given in pursuance of a promise in general terms, it would have constituted a preferential security. And, in Gattman v. Honea, 12 Nat. Bankr. Reg. 493, Fed. Cas. No. 5,271, the rule as to the necessity of making an agreement for specific securities was stated as follows: "When advances are made upon a general promise afterwards to give a security by mortgage or other conveyance, specifying no particular property upon which it is to be given, the promise amounts to nothing, and, when given, the advances so made constitute an antecedent or pre-existent debt; but, when an agreement is made that certain and specific property shall be conveyed, and the conveyance is made within a reasonable time thereafter, the advances will be considered as a present consideration for the conveyance." But, in Blodgett v. Hildreth, 11 Cush. 311, it was held that the giving of security for a pre-existing debt was within the meaning of the insolvency law, notwithstanding the debtor agreed when the debt was contracted "to give security" if, at any time, it should be requested, it having been in fact not given until afterwards. The court in construing the statute involved, and which provided that any security given for the performance of any contract, when the agreement for such security is part of the original contract and the security is given at the time of making such contract, shall not be deemed a preference, said: "This plainly excludes any executory agreement for the giving of security between debtor and creditor. The agreement must not only be made, but it must be executed, contemporaneously with the original contract. Any other construction would leave a wide door open for the very evil and mischief which the statute intended to prevent." agreed to sell to the former the entire out- [ put of Franklin's planing mill at certain prices, which were set forth in the agree ment, and which was in writing; the lumber to be delivered free on board cars at Chalybeat Springs, North Carolina, where the planing mill was located. The terms of payment for the lumber under this agreement were that the lumber company was to pay 80 per cent on each shipment upon receipt of the invoice therefor accompanied by bill of lading, and the remaining 20 per cent, less 2 per cent discount on the entire bill for cash, when the shipment was received and accepted by the purchaser. During the month of February following the contract of purchase the lumber company The order of the bankrupt court was to the effect that, by reason of the taking of the $1,000 worth of lumber under the circumstances detailed, the lumber.company had not secured a preference in the distribution of the bankrupt's estate, such as contemplated by the bankruptcy law, that would have the effect to defeat the right of the company to prove its $750 debt for money loaned, and to assert its right to the proceeds of the property which had been conveyed in the deed in trust as security for the payment of said loan. We are of the opinion that there was no error in this ruling. The $750 debt was for a present loan, and the mortgage upon the property of Franklin, who was afterwards adjudged bankrupt, was given at the time of the loan to secure its payment. It is therefore not affected by the adjudication within the four months from the date of the transaction. In fact, there is no controversy, so far as this record shows, about that proposition, the sole question being that raised by the trustee in his objection to the proof of the $750 debt against the estate of the bankrupt; the objection being that, by reason of an alleged preference secured as to another debt by taking the $1,000 worth of lumber a few days before the adjudication, the lumber company had deprived itself of the right to prove the $750 debt. In our opinion, the transaction in which the lumber was taken does not constitute an advantage in the distribution of the bankrupt's estate such as to create a preference under the bankruptcy laws. advanced thereon to Franklin various sums of money, amounting in the aggregate to $950. This amount was advanced on open account under the contract for the output of the mill, and the lumber company held no security therefor. Franklin filed his voluntary petition and was adjudged bankrupt upon the 10th of March, 1905, and a few days prior thereto the president and another officer of the lumber company called upon Franklin and discussed with him the status of his business and his financial affairs. At this time Franklin stated to them that he was insolvent. Thereupon the lumber company, through these officers, demanded of Franklin the delivery to the company of about $1,000 worth of lumber then upon the mill yard, which had been manufactured by the planing mill, and which Franklin, after some hesitation, delivered to them. After this, on the 21st of September, 1905, the lumber company filed with the referee its proof of debt of the $750 hereinbefore There was no suggestion that the conreferred to, together with the deed in trust tract made between the lumber company upon the property of Franklin, executed as and Franklin for the purchase of the entire security therefor. The trustee in bankruptcy objected to the proof of this claim and output of Franklin's mill was not a fair an allowance therefor in the distribution The contract was still existing at the time one, and one that the law would enforce. of the estate of the bankrupt, on the ground of the adjudication, and whatever lumber that, within a few days before the adjudication, the said lumber company had obwas on hand as the product of the mill tained from Franklin a transfer of $1,000 the lumber company had a right to claim, worth of lumber, and had seized and taken provided it complied with the terms which away the said lumber belonging to Frank- had been agreed upon. If there had been lin, in order to enable the said lumber com- no payment upon the contract of purchase pany to obtain a greater percentage of its in advance, the lumber company would have debt against said Franklin than other cred- been entitled to require the trustee to suritors of the same class would obtain. It render to it the lumber produced at the may be further stated that, in the mean- mill, provided it complied with the terms time, the trustee of Franklin's estate in of purchase. Having advanced money upon bankruptcy had proceeded, without notice the contract of purchase, the lumber comto Sackett, the trustee, or to the lumber pany thereby became entitled to, at least, company, the cestui que trust, and had sold as much of the product of the mill as it the property conveyed in the trust, which had paid for, and it could have recovered brought something over $700, the proceeds so much from the trustee, even after the being still in the hands of the trustee. bankruptcy. It is our opinion that, at OHIO SUPREME COURT. STATE OF OHIO JOHN W. JOHNSON. (77 Ohio St. 461, 83 N. E. 702.) Criminal court. law - attempt to influence most, the taking of the $1,000 worth of While we think, therefore, that the judgment of the district court allowing the proof of the $750 debt should be affirmed, we feel constrained to modify the judgment with respect to cost. In the order which was filed by the district court from the report of the referee, we find the following: "It is further ordered and adjudged that, as the creditor (meaning the Virginia-Carolina Lumber Company) voluntarily came into court and filed its claim for allowance, said claim must bear its pro rata part of the costs of the administration under the proceedings in bankruptcy." Aside from the mere costs incident to the proof of the claim, we do not see how this creditor should be required to pay any part of the costs of the administration of this bankrupt's estate. The lumber company had its claim secured by deed in trust on the property of the bankrupt, and it was entitled to have its claim paid in full, provided the property so conveyed would bring enough. The trustee in bankruptcy elected to sell this property and has the proceeds of the sale in hand. The lumber company, in our opinion, is entitled to have of the proceeds of the sale sufficient to pay its debt and interest, provided there is enough. If the property did not bring enough to pay the debt and interest in full, then the lumber company is entitled to have the whole of the proceeds. In other words, this creditor which has simply come into a bankrupt court and established a debt that is a lien upon specific property of the bankrupt should not be charged, so as to reduce the security, by making the fund arising from such specific property liable for the costs of the general administration of the bankrupt's estate. With this modification, the judgment of the District Court for the Eastern District of North Carolina, sitting in bankruptcy, is affirmed. 1. One who addresses a communication to the judges of a court for the purpose of influencing their decision in a case pending therein by disparaging one of the parties or the relator in a suit brought by the ficers of a court in the discharge of their state corruptly endeavors to influence ofduties within the meaning of § 6907, Re Same-indictment · sufficiency. 2. An indictment under that section is not defective because it does not charge that the court was in session when the communication was sent or received, nor because the communication does not ment upon the merits of the case, nor because the act charged may be punished as a contempt of court. (January 21, 1908.) Headnotes by the COURT. com Case Note. What constitutes offense of attempt to influence officers of court. No case has been found arising under a statute similar to that involved in STATE V. JOHNSON. In a few contempt cases, courts have held certain acts to constitute, or not to constitute, attempts to influence officers of the court, usually judges. Thus, a contempt in the form of an attempt to influence the action of a judge was held, in Leber v. United States, 170 Fed. 881, to have been committed by an attorney, where, upon the denial of his motion for a jury trial, made upon the ground that the judge was prejudiced, he went to the judge, in his chambers, and said that he wished to speak with the judge as a citizen, that he did not want him to try the case, and that, if he did try it, it would be disagreeable for the judge. Other cases have been found which come within the title of this note in its general sense. Some of them are cited below, although they are not very satisfactory upon the point decided in STATE V. JOHNSON, for, unlike that case, they involve intimidation rather than persuasion. For obvious reasons, the cases of tampering with witnesses or jurors are excluded. The writing by a newspaper proprietor of a letter to a judge who had received the report of a grand jury, and was holding it to determine whether it was in acceptable form, requesting that he make it public so that it could be published in the newspaper, and the publication in the paper upon the judge's failure to make the report public, of an article characterizing the suppression Charles W. Dustin, and Judge Theodore Sullivan; that said Harrison Wilson, Charles W. Dustin, and Theodore Sullivan, and each of them, are judges and officers in said court; that, in said court and before said judges, there was pending, and there coming on to be heard, a certain cause, styled "The State of Ohio, on the Relation of Mark Slater, against John W. Johnson," and numbered 2,449 on the docket of said court; and that on or about the twenty-eighth day of September in the year of our Lord one thou Indictment for Endeavoring to Influence sand nine hundred and six, at the county of Officers in a Court. The State of Ohio, Franklin County-ss.: In the court of common pleas, Franklin county, Ohio, of the term of January, in the year of our Lord one thousand nine hundred and seven. The jurors of the grand jury of the state of Ohio, duly elected, impaneled, sworn, and charged to inquire of crimes and offenses committed within the body of Franklin county, in the state of Ohio, in the name and by the authority of the state of Ohio, upon their oaths, do find and present that the circuit court of Franklin county, Ohio, is a court in the state of Ohio; that said court is presided over by Judge Harrison Wilson, Judge of the report as the most flagrant violation of the people's rights ever witnessed in Oklahoma, and declaring it to be an effort to browbeat the grand jury and bend it to the will of the judge, were held, in Burke v. Territory, 2 Okla. 499, 37 Pac. 829, to constitute a contempt in that they were attempts to force the court to disclose the contents of the report. But, it was held, in State v. Hansford, 43 W. Va. 773, 28 S. E. 791, that the act of an attorney in presenting a petition signed by numerous persons which requested a new trial in a cause that had been decided adversely to his client, while reprehensible, was not a criminal contempt. To the same effect is State v. Parsons, 48 W. Va. 275, 37 S. E. 548. And a newspaper article published pending litigation involving the acts of a political caucus. stating that judges of the court in which the cause was pending attended the caucus, advised the acts and promised to uphold them if the matter 'should come up before them, was held, in State v. Frew, 24 W. Va. 416, 49 Am. Rep. 257, to show on its face that it was intended to influence the decision of the court. Where, during the pendency of a patent infringement case, a discussion arose in a newspaper regarding the novelty of plaintiff's patent, and the defendant's solicitor wrote, under a fictitious name, letters for the purpose of disproving its novelty which were published in the newspaper, it was held that the solicitor was guilty of con Franklin, aforesaid, while said cause was then and there pending and coming on to be heard before said judges and officers of said court, as aforesaid, the said John W. Johnson, then and there knowing said cause to be pending and coming on to be heard before said judges and officers, as aforesaid, did then and there, in the county of Franklin aforesaid, corruptly endeavor to influence said judges and officers of said court in the discharge of their duty in the decision in said cause by divers written words and discourse to the disparagement of the said Mark Slater, plaintiff in said cause, which said written words and discourse were then and there addressed and delivered to said judges tempt, as his letters tended to prejudice the judges who were to hear the pending case. Daw v. Eley, L. R. 7 Eq. 49. The publication in a newspaper, while a murder case was pending, of an article stating that money raised to aid accused was operating splendidly, and that the sum raised was enough to purchase immunity from the consequences of any crime, predicting that accused would be given a trial, and declaring that the courts were in the hands of shysters, jackals of the legal profession, was held, in People v. Wilson, 64 Ill. 195, 16 Am. Rep. 528, to be well calculated to influence and intimidate the trial court. new And the publication in a newspaper of articles charging the supreme court and certain of its judges with corruption in prior rulings in pending issues, and stating that the final decision would rest on corrupt motives, was held, in People ex rel. Atty. Gen. v. News-Times Pub. Co. 35 Colo. 253, 84 Pac. 912, to constitute contempt upon the ground, among others, that the articles were calculated to intimidate the court and embarrass it in deciding the issues. The case was taken to the United States Supreme Court, but the writ of error was dismissed. Patterson v. Colorado, 205 U. S. 454, 51 L. ed. 879, 27 Sup. Ct. Rep. 556, 10 A. & E. Ann. Cas. 689. And the publication in a newspaper of affidavits filed in a pending case which were to come before the court, and comments thereon, with a view to disparage the evi and officers in said court in the language, and discourse the said John W. Johnson, to following, to wit: Columbus, Ohio, 9, 28, 1906. I note by the papers that Slater v. Johnson case is up to you. I am a Republican, as you gentlemen are, and I hope I am a good citizen, and I would not even suggest to you that you should in any manner violate your oaths of office or in any manner stultify yourselves in this or any cause of action that comes before you. But I would suggest that it is your duty to search very diligently to find a lawful reason to prevent such a man as Mark Slater going back into the office he has abused and disgraced, from which there is not the least doubt in the world he has stolen thousands of dollars. The man has no moral perception, and seems to believe that he had a perfect right to graft all he might on the side. The Republican Party, as you are well aware, has load enough to carry for the present without loading up again with a Slater. Yours Resp❜y, Columbus, Ohio. E. T. Ryan. conceal his identity or the author of such writing, signed the said name, "E. T. Ryan.” contrary to the statute in such cases made and provided, and against the and peace dignity of the state of Ohio. to influence The indictment was returned under § 6907, Rev. Stat. 1906, whose pertinent provisions are: "Whoever, corruptly. . . endeavors any juror, witness, or officer in any court of this state in the discharge of his duty I shall be fined not more than $100, or imprisoned not more than twenty days, or both." The opinion of the court below is presented to us by To which above said divers written words counsel for the defendant as presenting a dence on one side, was held, in Tichborne, v. Mostyn, 39 L. J. Ch. N. S. 398 to be a contempt. It was held, in State v. Tugwell, 19 Wash. 238, 43 L.R.Á. 717, 52 Pac. 1056, that a newspaper article published before the final determination of a cause, stating that the decision rendered was "rotten," that the judge who rendered it had no mind, and intimating that he was corrupt and misstated the facts, tended to disturb and embarrass the conclusion of the tribunal in the determination of the cause, and was a contempt. The publication in a newspaper, during the pendency of a cause, of an article stating that one of the judges had expressed an opinion regarding the cause before coming to the bench, and intimating, if not declaring, that some of the judges were in league with fusion "ward heelers" and "bunco steerers," was regarded, in State v. Bee Pub. Co. 60 Neb. 282, 50 L.R.A. 195, 83 Am. St. Rep. 531, 83 N. W. 204, as attempt to influence and intimidate the court in its decision. But, the publication in a newspaper, while a trial was pending, of an article stating that the trial judge, sheriff, defendant, defendant's witnesses and lawyers, and all the jurors were adherents of the same combination of political parties, that such a combination seemed strange, and that the selection of such a venire seemed rotten, was held, in State v. Edwards, 15 S. D. 383, 89 N. W. 1011, not to warrant a conviction for contempt upon the ground that it was calculated to influence or affect the court in the administration of justice. And the publication, during the pendency of proceedings to contest an election, of a newspaper article setting out that too much money had been used in securing the election of the person whose right was being contested, citing a former and similar case, and quoting the language of the court in the former case denouncing the use of a large sum of money in securing an election, was held, in Re North Renfrew Election, 9 Ont. L. Rep. 79, not to subject the editor of the paper to commitment for contempt upon the theory that it was calculated to prejudice or otherwise affect the minds of the judges who were to try the pending case. Approaching an attorney engaged in the trial of a case with the proposition that he should give to the person proposing the scheme money with which to bribe jurors sitting in the case was held, in Hurley v. Com. 188 Mass. 443, 74 N. E. 677, 3 A. & E. Ann. Cas. 757, to be a criminal contempt. And drawing a gun threatening an attorney during an examination before an examiner appointed by a Federal court, and continuing such conduct until adjournment Sharon v. Hill, 24 Fed. 726, as an act punwas necessary, was apparently regarded, in ishable under a Federal statute forbidding attempts, by threats, to influence, intimi date, or impede any officer in any Federal court in the discharge of his duty, or by threats or force to obstruct or impede the administration of justice. |