Syllabus.

and surely subsequent creditors have no right to complain if they deal with the mortgagor with full knowledge of such relations. Existing creditors may of course challenge the good faith of the transaction, but if they cannot disturb an absolute sale when made in good faith, why should they be permitted to challenge a conditional sale if made in like good faith? The fact that fraudulent relations are possible, is hardly a sufficient reason for denouncing transactions which are not fraudulent. So, if the question were open, or a new one, unaffected by any settled law of the State, we incline to the opinion that the question is not one of law, so much as it is one of fact and good faith, and that the decision of the Supreme Court of Iowa rests on sound principles. Jewell v. Knight, 123 U. S. 426; Smith v. Craft, 123 U. S. 436. Reference may also be made to the opinion of Mr. Justice Bradley, of this court, holding the Circuit Court in the Western District of Texas, Barron v. Morris, 14 Nat. Bank. Reg. 371, and the opinion of Mr. Justice Strong in the Circuit Court in New Jersey, in Miller v. Jones, 15 Nat. Bank. Reg. 150.

We see no error in the decision of the Supreme Court of Iowa, and it is Affirmed.

UNITED STATES v. BREWER.

CERTIFICATE OF DIVISION OF OPINION FROM THE CIRCUIT COURT

OF THE UNITED STATES FOR THE WESTERN DISTRICT OF

TENNESSEE.

No. 1178. Argued and submitted March 13, 1891:- Decided March 23, 1891.

Sections 1067, 1068 and 1070 of the Code of Tennessee of 1884, by Milliken & Vertrees do not require that, after an election, the ballot-box shall be opened at the place where the election was held, and the names of the persons appearing in each ballot be read aloud at that place, and the ballot-box not be removed from that place before the votes are counted, so as to make an indictment good, under § 5515 of the Revised Statutes of the United States, relating to an election at which a Representative or Delegate in Congress is voted for, which alleges, as a neglect or refusal to perform a duty, required of the officer of an election, by a law

Opinion of the Court.

of a State, and as a violation of a duty imposed by such law, a failure to open the ballot-box at that place, and a failure to read aloud such names at that place, and the removing of the ballot-box from that place before the votes were counted, no fraud being averred in the indictment, and no intent to affect the election or its result, and there being no allegation that the election or its result was affected.

Two questions in a certificate of division in a criminal case were not answered, because they were too general, one being whether a demurrer to an indictment ought to be sustained, and the other being whether the matters alleged in the indictment constituted an offence under the statute of the United States.

A question was not answered, because the answers to other questions disposed of the case.

THE case is stated in the opinion.

Mr. Solicitor General for plaintiff. Mr. Attorney General was on the brief.

Mr. Julius A. Taylor for defendants submitted on his brief. MR. JUSTICE BLATCHFORD delivered the opinion of the court.

This is an indictment against three persons, found in the Circuit Court of the United States for the Western District of Tennessee, under section 5515 of the Revised Statutes.

That section, with its punctuation, as published in the second edition of the Revised Statutes, is as follows: "SEC. 5515. Every officer of an election at which any Representative or Delegate in Congress is voted for, whether such officer of election be appointed or created by or under any law or authority of the United States, or by or under any State, territorial, district or municipal law or authority, who neglects or refuses to perform any duty in regard to such election required of him by any law of the United States, or of any State or Territory thereof; or who violates any duty so imposed; or who knowingly does any acts thereby unauthorized, with intent to affect any such election, or the result thereof; or who fraudulently makes any false certificate of the result of such election in regard to such Representative or Delegate; or who withholds, conceals or destroys any certificate of record so

Opinion of the Court.

required by law respecting the election of any such Representative or Delegate; or who neglects or refuses to make and return such certificate as required by law; or who aids, counsels, procures or advises any voter, person, or officer to do any act by this or any of the preceding sections made a crime, or to omit to do any duty the omission of which is by this or any of such sections made a crime, or attempts to do so, shall be punished as prescribed in section fifty-five hundred and eleven."

It purports to be a reënactment of section 22 of the act of May 31, 1870, ch. 114, (16 Stat. 145,) which, with its punctuation, as published, was as follows: "SEC. 22. And be it further enacted, That any officer of any election at which any representative or delegate in the Congress of the United States shall be voted for, whether such officer of election be appointed or created by or under any law or authority of the United States, or by or under any State, territorial, district or municipal law or authority, who shall neglect or refuse to perform any duty in regard to such election required of him by any law of the United States, or of any State or Territory thereof; or violate any duty so imposed, or knowingly do any act thereby unauthorized, with intent to affect any such election, or the result thereof; or fraudulently make any false certificate of the result of such election in regard to such representative or delegate; or withhold, conceal or destroy any certificate of record so required by law respecting, concerning or pertaining to the election of any such representative or delegate; or neglect or refuse to make and return the same as so required by law; or aid, counsel, procure or advise any voter, person or officer to do any act by this or any of the preceding sections made a crime; or to omit to do any duty the omission of which is by this or any of said sections made a crime, or attempt to do so, shall be deemed guilty of a crime and shall be liable to prosecution and punishment therefor, as provided in the nineteenth section of this act for persons guilty of any of the crimes therein specified."

The indictment originally contained four counts. The first count alleged that on the 6th of November, 1888, in the county of Shelby, Tennessee, at the third ward of Memphis,

Opinion of the Court.

an election for a Representative in the Congress of the United States for the Tenth Congressional District of Tennessee was held, at the southeast corner of Gayoso and Second Streets, Memphis, in the fourteenth civil district of that county; that at that election two of the defendants were the judges thereof and the other was the returning officer thereof, holding the election, "at which election such representative in Congress was then and there voted for; that it then and there thereby became and was the luty (among others) of the said judges and returning officer of said election, when the same was finished and after the polls were closed, then and there at the said place of holding the same, and at the place where the ballots were cast at said election, to open the ballot-box then and there used at said election and then and there containing the ballots cast at said election, in the presence of such of the electors at said election as might choose to attend, and to read aloud the names of the persons which should appear in each ballot in the said ballot-box so cast at said election;" and that the defendants did then and there "unlawfully neglect to perform their said duty in regard to the said election, as required of them by law, by then and there, and after the said election was finished, and after the polls at said election were closed, and before the counting of the votes cast at said election, failing to so open the said ballot-box at the place where the said election was held, and to so then and there at the place last aforesaid read aloud the names of the persons which should then and there appear in each ballot in the said ballotbox, the same being the duly designated place of holding the said election."

The second count, with the same preliminary allegations as in the first count, averred that the defendants unlawfully refused to perform their said duty, by failing to do what it was alleged in the first count they failed to do, "and by then and there, and after the said election was finished and the polls thereof were closed, unlawfully removing the said ballot-box from the place where the said election was held, and before the counting of the votes cast at the said election, the same being the duly designated place of holding the said election."

Opinion of the Court.

The third count, after making the same preliminary allegations, averred that the defendants did unlawfully violate their said duty by failing to do what it was alleged in the first and second counts they failed to do, and by unlawfully removing the ballot-box as averred in the second count.

The fourth count averred that the defendants did "unlawfully and knowingly, and with intent to affect the said election and the result thereof, and after the said election was finished, and after the polls at said election were closed, and before the counting of the votes cast at said election, remove the ballot-box used at said election, and then and there containing the ballots cast at said election, from the place aforesaid where the said election was held, the same being the duly designated place of holding the said election, such removal of the said ballot-box being unauthorized by law, and contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the United States of America."

The indictment is based on the view that certain sections of the statutes of Tennessee must be so construed as to require that the ballot-box shall not be removed from the place where the election was held, before the votes cast are counted, and that they shall be counted at the place where the election was held, immediately after the closing of the polls.

The defendants being brought into court, a nolle prosequi as to the fourth count was entered, on motion of the district attorney. The defendants demurred to the other three counts, setting forth the following grounds of demurrer :

"1. Because the matters and things stated and set forth in said three counts, in manner and form as therein contained, do not constitute offences against the laws of the United States and do not come within the purview, true intent and meaning of section 5515 of the Revised Statutes of the United States, nor of any act of the Congress of the United States of America.

“2. Because there was no duty imposed by the laws of the State of Tennessee, or by the laws of the United States, or otherwise, (as stated and set forth in each of said three counts