tion clearly and unequivocally sustaining the position contended for by the plaintiffs, the facts being similar to those developed here.

The almost unbroken line of authority seems to establish the doctrine that if bills of a broken bank, or the notes of a party who has previously failed, are transferred in payment of a debt, both parties being ignorant of the failure and innocent of fraud, the creditor may repudiate the payment, upon a tender or return of the dishonored note, and recover the amount due. It is a mutual mistake of fact. Lightbody v. Ontario Bank, 11 Wend. 9; Ontario Bank v. Lightbody, 13 Wend. 101; Young v. Adams, 6 Mass. 182; Thomas v. Todd, 6 Hill, 340; Harley v. Thornton, 2 Hill, (S. C.) 509; Fogg v. Sawyer, 9 N. H. 365; Westfall v. Braley, 10 Ohio St. 188; Roberts v. Fisher, 43 N. Y. 159; Baldwin v. Van Deusen, 37 N. Y. 487; Houghton v. Adams, 18 Barb. 545; Townsends v. Bank of Racine, 7 Wis. 185; Leger v. Bonnaffe, 2 Barb. 475; Stewart v. Orvis, 47 How. Pr. 518. It is true that in many of these cases the debased or worthless paper was given in payment of a preexisting debt, while in the case at bar the delivery was the result of a bargain and sale.

In the former circumstances, an obligation existed to pay the debt in money-in coin; in the latter, the vendor was simply required to transfer the note-the note of a live and not of a defunct copartnership. In this respect the cases differ, and this element of strength is wanting in the defendant's argument. And yet, upon an analysis of the reason upon which these decisions are based-viz., mutual mistake it is not easy to discover any difference in principle. The plaintiffs supposed that they were selling solvent paper; the defendant supposed that it was purchasing such paper, and payment was made on this supposition. Both parties were mistaken. While the note was yet in the possession of the plaintiffs, and owned by them, it became worthless, or greatly impaired in value. Both parties being honestly in error, why, upon principle, should not the defendant have the same right to rescind that the plaintiffs would have, had the note been paid for the day following, in the bills of an insolvent bank? But in some of the authorities cited-the last three, for instancethe distinction referred to does not exist, and the facts closely approximate those existing here.

The plaintiffs contend further that the levying of the attachment did not, in contemplation of the law, amount to a failure on the part of the makers of the note, neither was it evidence of insolvency. It is thought that this position is not tenable. The attachment was granted in a suit ex contractu, upon a debt then due, on the ground

that Levi & Co. were disposing of their property with intent to defraud their creditors. The sheriff took possession of their establishment, seized their entire stock, and turned them into the street. Four days afterwards their notes went to protest, and there is no evidence that they resumed business thereafter. If the firm was not legally extinct, it certainly was stricken with a commercial paralysis. It was unable to meet its obligations as they fell due; it suffered its property to be taken on a charge of fraud which was not denied; it was legally if not actually insolvent. Webb v. Sachs, 15 N. B. R. 168; In re Hauck, 17 N. B. R. 158; Harrison v. McLaren, 10 N. B. R. 244; In re Ryan, 2 Sawy. 411.

The case of Otis v. Cullom, 92 U. S. 447, relied on by the plaintiffs, can hardly be regarded as controlling. There was in that case no mistake of fact. If a mistake existed it was one of law. After the purchase of the bonds the courts decided that the law did not authorize their issue. There was no guaranty, express or implied, that the law was constitutional. The plaintiff knew the facts and chose to take the risk of the bonds being subsequently declared invalid. In precisely the same manner the defendant here took the risk of all subsequent infirmities.

The questions in this action are by no means free from perplexities and doubt. The weight of authority, however, seems to sustain the positions taken by the defendant.

It follows that judgment should be entered awarding the money in court to the defendant.

PHELPS, Jr., v. MERRITT.

(Circuit Court, 8. D. New York. February 19, 1883.)

SCHEDULE M, § 2504, REV. ST., CONSTRUED.

The words "the whole quantity" (schedule M, § 2504, Rev. St.) refer to merchandise shipped by one consignor from one place and to the particular kind of fruit damaged, and not to the whole invoice aggregating several varieties of fruit.

Memorandum of Decision.

Mr. Jones and Mr. Heath, for plaintiff.

Mr. James, Asst. Dist. Atty., for defendant.

COXE, J. I think the plaintiff is entitled to recover. The fair and reasonable interpretation of the statute is the one recently adopted

by the treasury department. The words "the whole quantity" are now construed "as referring only to the merchandise shipped by one consignor from one place, and to the particular kind of fruit damaged." I have examined with care the authorities cited, and am inclined to follow the decision of Ex-Attorney General MacVeagh, in the Pohl Case, (reported in Decisions of the Treasury Dept. Document No. 172, page 239,) as the latest expression on the subject. As I concur, not only in the conclusion reached by him, but also in the reasoning of the opinion, I have thought it unnecessary to enter into any extended discussion of the question involved, which is precisely similar in both cases.

In re WERDER, Bankrupt.

(Circuit Court, D. New Jersey. March 28, 1883.)

BANKRUPTCY-ASSETS-MEMBERSHIP IN PRODUCE EXCHANGE.

Membership in a produce exchange is property which passes to the assignes in bankruptcy as assets of the debtor's estate.

Bill of Review.

A. Marks, for bankrupt.

Hamilton Wallis, for assignee.

MCKENNAN, J. The bankrupt is a certificated member of the New York Produce Exchange, and the only question presented by his bill is, whether his membership in that institution is an asset, available to his creditors, through his assignee, or not. If it is, the order made by the district court, of which the bankrupt complains, was right. I regard the question as conclusively settled by the opinion of the supreme court in Hyde v. Woods, 94 U. S. 523. Mr. Justice MILLER, speaking for the court, there says:

"There can be no doubt that the incorporeal right which Feun had to this seat when he became bankrupt was property, and the sum realized by the assignees from its sale was valuable property. Nor do we think there can be any reason to doubt that, if he had made no such assignment, it would have passed subject to the rules of the stock board, to his assignee in bankruptcy, and that, if there had been left in the hands of the defendants any balance, after paying the debts due to the members of the board, that balance might have been recovered by the assignee."

It is futile to contest the authoritativeness of this statement by the criticism that it was unnecessary to the decision of the question be

fore the court, and, therefore, was only the individual opinion of the judge who spoke for the court. But it was not only proper, but necessary, to ascertain and determine the nature and character of the interest claimed by the plaintiff that the court might pronounce judgment upon the merits of the controversy between the parties. The plaintiff was the assignee of a bankrupt member of the San Francisco Stock Exchange. If the bankrupt's membership in that institution was a mere personal privilege, and in no sense property, then it did not pass under the assignment, and the plaintiff could not maintain any action touching it for want of title. But to consider the merits at all, and to determine the legal rights of the parties in reference thereto, it was necessary for the court to define the character of the subject of the controversy, and so to pass upon the validity of the claim of the defendants to the proceeds of its sale; they, therefore, held it to be property, which passed under the assignment in bankruptcy, subject to the rules of the exchange, which provided for the prior appropriation of the proceeds of its sale to debts due to its members, and hence that such appropriation was not within the scope of the provisions of the bankrupt law against preferences.

Regarding the opinion, then, as authoritative, it rules this case, and it is, therefore, ordered that the bill be dismissed with costs.

UNITED STATES v. JESSUP.

(District Court, D. Maryland. March 24, 1883.)

1. INDICTMENT FOR TAKING EXCESSIVE FEE IN PENSION CASE-ACT OF JUNE 20, 1878.

Held, that the penalty provided by, Rev. St. § 5485, is applicable to act of June 20, 1878. entitled, "An act relating to claim-agents and attorneys in pension

2. AMENDATORY ACTS TO REVISED STATUTES-HOW CONSTRUED.

Held, that amendatory acts of congress are to be construed as enacted with reference to the existing system of laws on the subject to which they pertain, and, if possible, to be construed as part of that system.

Demurrer to Indictment.

A. Stirling, Jr., for the United States.

J. Morrison Harris, for Jessup.

MORRIS, J. This indictment charges that the traverser in May, 1880, did unlawfully demand and receive from a pensioner of the United States for services in a pension-claim case a greater sum than

$10, to-wit, $1,400, contrary to the statutes of the United States. The question raised by the demurrer is whether there was any penalty for taking a greater fee than allowed by law for prosecuting a pension claim after the passing of the act of June 20, 1878, and prior to the act of March 3, 1881. It is a question which the reported decisions show has been decided both ways by federal courts. It was ruled by Judge GRESHAM in a well-considered opinion reported in U. S. v. Dowdell, 8 FED. REP. 881, that the penalty provided by section 5485 of the Revised Statutes was applicable to the act of June 20, 1878. The contrary was held by Judge BAXTER in U. S. v. Mason, 8 FED. REP. 412, and by Judge NIXON in U. S. v. Hewitt, 11 FED. REP. 243.

Looking at the purpose of the legislation on this subject it appears certain that in passing the act of June 20, 1878, reducing the fee which an attorney could receive in any pension case to $10, congress assumed that the penalties prescribed by section 5485 were applicable, and intended that they should be, and that such was in fact the legal effect of the enactment would have seemed to me equally plain but for the decisions of the two very experienced and able judges who have held otherwise.

Under the "Title 57, Pensions," in the Revised Statutes, there were codified and brought together all the then existing provisions of law relating to pensions, and under "Title 70, Crimes," was placed as section 5485, the section of the original statute providing the punishment of agents or attorneys who should violate the section forbidding them to take a greater fee than the pension law allowed. The title 57 then contained all the laws on the subject of pensions, so that when section 5485 declared what penalty should be inflicted for taking a greater fee "than is provided in the title pertaining to pensions" it was equivalent to declaring the penalty for taking a greater fee than was provided by the laws relating to pensions.

The act of June 20, 1878, was entitled "An act relating to claim agents and attorneys in pension cases." By it congress repealed section 4785 of the title pertaining to pensions, and in lieu thereof, and by an enactment plainly intended as a substitute for it, declared it to be unlawful for an agent or attorney to take a greater fee in any case than $10, which was a less sum than had been allowed in some cases under section 4785. I think that the act of June 20, 1878, was intended to be, and became a part of, the general system of law pertaining to pensions as contained under that title in the Revised. Statutes, and section 5485 was also part and parcel of that system. That section 5485 was placed under the title "crimes" was a mere