with and approved by the commissioner. Clearly the statute covers only services, and the attorney would still be entitled to charge for expenses incurred in procuring testimony.

§ 1027. Charge for a distinct service in connection with services rendered in obtaining a pension.

But in the case under consideration, defendant was called upon to perform a service entirely distinct from that usually required in such cases. The soldier was registered as a deserter on the rolls of the war department, and until that charge was disproved his widow could not recover her pension (§§ 2438, 4749). Although in the particular case the service was performed in aid of the pension, it was essentially a distinct service and might have been required for another and different purpose. A deserter loses his right of citizenship (§ 1996); he cannot enlist in the army or navy of the United States (§§ 1118, 1420); and an officer mustering him in would be subject to punishment (§ 1342, article 3). The records of the war department will only be corrected by plenary proof of mistake, and when a claim for a pension has once been advanced it must be prosecuted to completion in five years (§ 4717). It will be readily perceived that it may become an object of the utmost importance to have a charge of desertion stricken out for other purposes than obtaining a pension. The difficulty of securing the requisite evidence is frequently very great, and in this case it was admitted that an expense of over $300 had been incurred by the defendant for that purpose. To limit his compensation in such a case to $10 would be an adherence to the letter of the statute which congress could not have contemplated.

It is believed no authority can be found exactly in point; but a class of cases arising under the usury laws announce the principle here involved, viz., that when a lender has made unusual effort or incurred extraordinary expense in connection with the loan, an agreement to repay his charges for services and disbursements, if made in good faith and not merely as an evasion, will not be deemed usurious. In the early case of Auriol v. Thomas, 2 Term R., 52, it was held that where a bill indorsed over is not duly paid, the indorsee may charge the indorser with exchange, and other incidental expenses beyond the amount of legal interest, if such charges be reasonably warranted by custom and not made a color for usury. This authority was followed in Palmer v. Baker, 1 Maule & Sel., 56; and in Baynes v. Fry, 15 Ves. Jr., 120. In Harger v. McCullough, 2 Denio, 119, it was held that where a creditor, at the request of the debtor, and upon his express promise to pay the expenses, took a journey to the residence of the latter, with a view to settling the demand, and afterwards included such expenses in a security taken for the debt, the security was not usurious. This case was approved in Thurston v. Cornell, 38 N. Y., 281, in which it was held that where a party solicited to make a lean, and to procure the means of doing so must spend time and incur trouble and expense in collecting the same from others, and does this at the request of the borrower, and upon his agreement to pay for such services and expenses, the transaction is not usurious. Whether the payment upon a loan of more than the legal rate of interest is usurious depends upon the particular facts of the case and the intention of the parties, and these are questions for the jury. If paid for the loan or forbearance of money it is usury, but if the excess is for other good and valuable considerations, not interposed as a device to cover usury, the transaction is not usurious. The same principle was stated in Eaton v. Alger, 2 Keys, 41, in which the court observe: "Even where the lender, without any

special agreement with the borrower, in addition to lawful interest, takes a commission, by way of compensation for trouble and expense necessarily incurred in and about the business of the loan, the transaction would be supported, provided such commission was not intended as a device to cover a usurious loan."

See, also, to the same effect, Eldridge v. Reed, 2 Sweeny, 155; Beadle v. Munson, 30 Conn., 175; Gambril y. Doe, 8 Blackf., 140; Smith v. Silvers, 32 Ind., 321; Smith v. Muncie Nat. Bank, 29 Ind., 158; Tyler on Usury, 130.

In the case under consideration, if the agreement set up in the plea were made in good faith, for services actually performed as therein stated, and not as a mere pretext for charging more than the statute allowed for obtaining a pension, the defendant is entitled to an acquittal. I am not called upon to determine whether his charge be reasonable or not; that must be litigated in another forum; the question of good faith only is here involved, and that must be submitted to a jury. An order will be entered overruling the demurrer.

UNITED STATES v. RYCKMAN.

(District Court for Tennessee: 12 Federal Reporter, 46-50. 1882.)

STATEMENT OF FACTS.- Ryckman was indicted for withholding pension money from Mrs. Simmons, a pensioner. The check for the money was sent in a letter addressed to Mrs. Simmons, and the letter was taken from the postoffice by the defendant on the deposit by him of a power of attorney with the postmaster. The defendant indorsed the check (with the name of Mrs. Simmons), and delivered it to one Irvine, a merchant, who credited Mrs. Simmons with the sum of $35, owing by her for goods, and also credited the defendant in the sum of $100, and delivered to him a small sum in money and a due bill for the balance of the check. On learning that the power of attorney to defendant did not authorize him to indorse the check, Irvine paid Mrs. Simmons the amount of the check, less the $35 due him from her.

Charge by HAMMOND, J.

The indictment in this case charges a violation of section 5485 of the Revised Statutes, which is as follows: "Any agent or attorney, or other person, instrumental in prosecuting any claim for pension or bounty land, who shall directly or indirectly contract for, demand or receive, or retain, any greater compensation for his services or instrumentality in prosecuting a claim for pension or bounty land than is provided in the title pertaining to pensions, or who shall wrongfully withhold from a pensioner or claimant the whole or any part of the pension or claim allowed and due such pensioner or claimant, or the land warrant issued to any such claimant, shall be deemed guilty of a high misdemeanor, and upon conviction thereof shall, for every such offense, be fined not exceeding $500, or imprisoned at hard labor not exceeding two years, or both, at the discretion of the court."

The statute, you will perceive, prescribes the punishment for two offenses in relation to the prosecution of a claim for pension,- one the contracting for, demanding, etc., of greater compensation for the agent's services than allowed by law; the other, the withholding by the agent of the whole or any part of the pension or claim allowed; and the case under consideration relates only to this latter offense. The plain purpose of all those stringent provisions of the pension laws which the district attorney has read in your hearing is to secure absolutely to the pensioner the bounty of the government. It cannot, on any

protext, be lawfully diverted, directly or indirectly, while in transit to his hands. It is not assets for the payment of debts, and can be in no way pledged or impounded for that purpose, and all dealings in that direction are null and void. There is a somewhat analogous policy which protects the salaries of officers of the state and federal governments, and it is generally recognized everywhere. Put here congress has, by the most stringent special legislation, sought to protect these pensioners, so munificently endowed, against all possibility of being defrauded by the agents they employ to collect their dues from the government. Nothing less than the unconditional payment of the full amount, less the small fee allowed, will discharge the agent from the penalties of this statute, whenever, by any contrivance of his, he comes into possession of the warrants or the money they represent. All else is a wrongful withholding under this statute. It is the duty of the courts and juries to so enforce these legislative commands that there shall be no evasion of them.

1028. Under Revised Statutes, section 5485, withholding from a pensioner the check or warrant to which he is entitled is equally an offense with withholding the money itself.

The words of the statute do not in terms confine the offense to a wrongful withholding of money collected on the claim, which would, of course, be a violation of it, but extend to "the whole or any part of the pension or claim allowed or due such pensioner or claimant." If the statute is to be restricted to withholding the money actually paid by the treasury on the check or warrant of the government to the agent, it would be very much limited in its oper ation as a protection to the pensioner. The practice of the department under these pension laws is to send the warrant drawn on the treasury direct to the pensioner, to be paid by the treasurer on demand of the holder by proper indorsements, and every effort is made to prevent this warrant from falling into the hands of the agent, who is prohibited from receiving it, and to whom postmasters are forbidden to deliver it by the postal laws and regulations. The offense cannot be restricted to withholding money collected on valid indorsements, and the statute construed to turn loose all who, by forgery or other frauls, succeed in capturing the warrant, notwithstanding these prohibitions, collect the money or obtain its value, and neglect to pay it to the pensioner.

The argument of the defen lant's counsel, and the instructions asked for by him, would result in punishing all who withhold the money realized on a pensioner's genuine signature, and in discharging all who obtain and withhold it on his forged signature, because the government, it may be, would remain liable to the pensioner for the amount due, the payment on a forged signature not being in law a payment. This would be a strange result, and I cannot give the instructions asked for. It was the duty of the defendant to have delivered this check itself to the pensioner, and his failure to do so was a violation of this statute, unless he collected the money on it and paid it to her. Even if the power of attorney operated to authorize the defendant to collect and receive the money, the money itself, when so collected, was under the protection of the statute until paid unconditionally to the pensioner. United States v. Hall, 98 U. S., 343, 354. If you believe from the evidence that the defendant received the check, passed it to Irvine by indorsing her name upon it, and received for it any cash or credit or property and Irvine's due-bill or note, and thus appropriated the money to his own use, and that he subsequently neglected or failed, on demand, to pay the amount of the check, or any part of it, to the pensioner, it is your duty to find him guilty under this indictment. The fact

that Irvine has seen fit to pay the money to her cannot be a defense to the defendant on the facts of this case. Take the case, gentlemen, and consider your New trial refused.)

verdict. (Verdict, guilty.

§ 1029. Power of congress.-Congress has the power to prescribe what fees a pension agent may charge for his services in procuring a pension, and to punish the taking of fees in excess thereof. United States v. Fairchilds,* 1 Abb., 74. And laws punishing embezzlement by guardians are constitutional. United States v. Hall, 8 Otto, 343 (CONST., § 482-495).

1030. As to date of act.- To withhold a pension granted by an act passed subsequently to the act making the withholding of a pension an offense is punishable under the former act, when its terms are general, and not limited to the provisions of the former act. United States v. Chaffee,* 4 Ben., 326.

§ 1031. Banker.- Where a pensioner delivers to a banker the check received by her from the pension agent, and receives in return a certificate of deposit, intending to rely on the personal credit of the banker, he is not her agent in such a sense that, if he fails to pay her, he renders himself criminally liable under the statutes of the United States for withholding a pension, or a part thereof, from a pensioner. United States v. Howard,* 7 Biss., 56.

§ 1032. Retaining money to pay other claims. Where the agent of a pensioner receives the money due the pensioner, and, after retaining his lawful fees, retains, in pursuance of a fair understanding with the pensioner, money enough to pay certain bills due from such pensioner, and a sum to pay for his services in matters unconnected with the procurement of the pension, he is guilty of no offense under the laws of the United States by so doing; otherwise if there is no such understanding or agreement, or the latter sum is not so retained. United States v. Hewitt,* 11 Fed. R., 243. See § 1023.

§ 1033. Fraudulent claims.-Section 5438 of the Revised Statutes, which forbids the presentation of false and fraudulent claims against the government, includes a false claim presented by a person as a pensioner. United States v. Goggin,* 9 Biss., 416.

§ 1034. A person by fraud and the manufacture of evidence procured his name to be inserted on the rolls as a pensioner, and procured a genuine certificate to that effect, and obtained his pension thereon regularly. Held, that although the offense of filing the false proof and the procurement of the certificate was barred by the statute of limitations, still the pensioner was liable under section 5438 for presenting a false and fraudulent claim against the government every time he made a claim on such certificate. Ibid.

§ 1035. Party having no authority to receive pension.- To an indictment for an unlawful withholding by the defendant of a part of the pension money due to a certain person, which the defendant had received as her agent for the prosecution of her claim, it is no objection that the law requires all pension money to be paid directly to the pensioner. United States v. Mason,* 8 Fed. R., 412; United States v. Connally,* 9 Biss., 338.

§ 1036. Indictment charging no offense.-- Section 4785 of the Revised Statutes declares that no agent or attorney shall receive a greater compensation for his services in the prosecution of a pension claim than such as the commissioner of pensions shall direct, not exceeding $25. Section 5485 provides that if any agent or attorney shall receive a greater compensation for such services "than is provided for in the title pertaining to pensions," he shall be indictable. Subsequently an act was passed fixing the fee of agents and attorneys for such service at $10. This act does not profess to repeal the foregoing sections or any part of them, but necessarily supersedes so much of the first section as vests in the commissioner of pensions authority to determine the amount of charges. An indictment, therefore, based on these two sections, which charges that the defendant, as agent in the prosecution of a certain pension claim, received a greater compensation for his services than is provided for in the title of the Revised Statutes pertaining to pensions, charges no offense. United States v. Mason,* 8 Fed. R., 412.

§ 1037. The withholding by an attorney of "pay and bounty," and "arrears of pay and bounty," is not an offense under section 13 of the act of July 4, 1864. United States v. Benecke,* 8 Otto, 447.

§ 1038. An indictment, found September 11, 1875, charged an attorney with withholding "pay and bounty" from a claimant in 1868. Held, that the offense could not be punished under the act of March 3, 1875.

Ibid.

§ 1039. The word "claimant," in section 13 of the act of July 4, 1864, punishing the withholding by an agent or attorney of the whole or any part of the pension due a claimant, means a claimant before the pension bureau. Ibid.

§ 1040. Repeal of law. - Section 5485 of the Revised Statutes declares it to be a misdemeanor for any agent or attorney to receive for his services, in prosecuting any pension claim, any greater sum than is provided in the title pertaining to pensions. The section re

ferred to. No. 4785, declares that no agent or attorney shall demand or receive any other compensation for his services in prosecuting a claim for a pension than such as the commissioner of pensions shall direct to be pati, not exceeding $25. A later act declares it to be unlawful for any agent or attorney to receive for his services in a pension case a greater sum than $10. It is held that an indictment based on section 5'85. charging the defendant with receiving, for prosecuting a certain pension claim, a greater sum for his services than is allowed by law, will not be quashed on the ground that section 4785 is repealed by the later act referred to. It was not the intention of congress that the subsequent act should so far repeal section 4785 as to render an indictment based on section 5485 of no value. United States v. Dowdell,* 8 Fed. R., 881.

§ 1041. What persons included.- Section 5485 of the Revised Statutes, which makes it an offense for "any agent or attorney, or any other person, instrumental in prosecuting any claim for a pension," to wrongfully withhold from a pensioner the whole or any part of the pension allowed and due such pensioner, is not intended to be confined to the regular attorney for the pension claimant, but extends to any person instrumental in prosecuting a pension claim. United States v. Schindler,* 18 Blatch., 227.

§ 1042. When the commissioner of pensions has passed upon the claim, and directed the pension to be paid to the claimant, the fact is conclusive against the defendant, under the above statute, that the pension has been allowed and is due, and he will not be permitted to contend that it was not due to the claimant. Ibid.

XIV. PERJURY.

[See XXVI, 7, infra. Also § 3023.]

SUMMARY - Perjury defined, § 1043.- Rash statements on oath, § 1044.— Oath taken before a justice of the peace, § 1045.

§ 1043. In order to constitute with knowledge of its falsity.

the crime of perjury there must be some fact falsely stated United States v. Moore. §§ 1046, 1047.

$ 1044. Quere: Whether perjury can be committed by mere rash and reckless statements on oath? Ibid.

§ 1045. After the passage of the act of congress of July 5, 1832, "An act for liquidating and paying certain claims of the state of Virginia," the secretary of the treasury established a regulation authorizing affidavits made before any justice of the peace of a state to be received and considered in proof of claims under the act. It is held that a false affidavit made in pursuance of this regulation before a justice of the peace of a state, in support of such a claim against the United States, may be punished under the third section of the act of March 1, 1823, providing that "if any person shall swear or affirm falsely touching the expenditure of public money, or in support of any claim against the United States, he or she shall upon conviction suffer as for wilful and corrupt perjury." United States v. Bailey, $S 1018-1054. [NOTES.-See § 1055-1101.]

UNITED STATES v. MOORE.

(District Court for Massachusetts: 2 Lowell, 232-235. 1873.)

STATEMENT OF FACTS.-The defendant was indicted for false swearing. It appeared that in order to procure the redemption of a treasury note he presented a fragment of the note, and made an affidavit to the effect that the note, except the part presented, had been destroyed. The note had never been destroyed, but had been redeemed. Verdict, guilty. Motion for a new trial. Opinion by LoWELL, J.

I have made up my mind that my instruction to the jury upon one point was not sufficiently full and explicit, and may, perhaps, have misled them, to the injury of the defendant. I charged in the words attributed to Judge Sprague, in United States v. Atkins, 1 Spr., 558, "that the jury must be satisfied that the defendant swore to a declaration which, at the time, he knew to be false; and that may be either by swearing to a fact which he knows is not true, or by swearing to his knowledge of the fact when he knew he had no such knowl edge." There appears to be a much fuller report of the charge in that case,