was nothing patentable in the contrivance described in the second patent.

The result of our views is that the decree of the Circuit Court was right and must be

Affirmed.

UNITED STATES v. BRITTON.

1. The counts of an indictment against the president of a national banking association for making such a false entry on its books as is punishable under sect. 5209 of the Revised Statutes are sufficient if they are in the form hereinafter set forth, post, p. 656, as the offence is thereby alleged in apt terms, and with the requisite averments of time and place.

2. The counts which charge his fraudulent purchase of shares of the capital stock of the association are bad if they either fail to state for whose use the purchase was made, or if they state that it was made for the use of the association, or if they do not aver that it was not made in order to prevent loss on some previously contracted debt.

3. The counts which charge him with having wilfully misapplied the funds of the association, should aver that he did so for the benefit of himself or some person or body other than the association, and with intent to injure or defraud the association or some other person or body corporate.

4. The counts which charge his fraudulent purchase of the shares of stock, and allege that they were by him held "in trust for the use of said association, and that said shares were not purchased as aforesaid in order to prevent loss upon any debts theretofore contracted with said association in good faith," do not allege with sufficient certainty an offence under said sect. 5209. 5. The purchase of stock in violation of sect. 5201, if made with intent to defraud, and by one or more of the officers of the bank named in said sect. 5209, is not a crime punishable under the latter section.

CERTIFICATE of division in opinion between the judges of the Circuit Court of the United States for the Eastern District of Missouri.

Section 5209 of the Revised Statutes of the United States is as follows:

"Every president, director, cashier, teller, clerk, or agent of any' national banking "association who embezzles, abstracts, or wilfully misapplies any of the moneys, funds, or credits of the association; or who, without authority from the directors, issues or puts in circulation any of the notes of the association; or who, without such authority, issues or puts forth any certificate of deposit, draws any order or bill of exchange, makes any acceptance, assigns any note, bond, draft, bill of exchange, mortgage, judgment, or decree; or

who makes any false entry in any book, report, or statement of the association, with intent, in either case, to injure or defraud the association or any other company, body politic or corporate, or any individual person, or to deceive any officer of the association or any agent appointed to examine the affairs of any such association; and every person who, with like intent, aids or abets any of ficer, clerk, or agent in any violation of this section, shall be deemed guilty of a misdemeanor, and shall be imprisoned not less than five years nor more than ten."

An indictment based on this section was, on Jan. 20, 1879, found against defendant, James H. Britton, in the District Court of the United States for the Eastern District of Missouri. It contained one hundred and nineteen counts. The first count charged as follows:

"That James H. Britton, late of said district, on the thirtieth day of June, in the year of our Lord one thousand eight hundred and seventy-six, at said district, being then and there president of a certain national banking association then and there known and designated as the National Bank of the State of Missouri, in St. Louis,' which said association had been theretofore created and organized under and by virtue of an act of Congress, entitled An Act to provide a national currency secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof,' approved June third, in the year of our Lord one thousand eight hundred and sixty-four, and which said association was then and there acting and carrying on a banking business in the city of St. Louis, in said district, under the said act of Congress and the acts amendatory thereof, did make in a certain book then and there belonging to and in use by the said association in transacting its said banking business, and then and there designated and known as profit and loss, number six,' a certain entry to the credit of a certain account known as profit and loss, which said entry was then and there in the words and figures following, that is to say :—

'182 days' int., 8 per cent., 132,673.49, to July 1, '76 . . . 5,365.88'

...

and which said entry, so as aforesaid made in said book, then and there purported to show, and did, in substance and effect,

indicate and declare, that the sum of five thousand three hundred and sixty-five dollars and eighty-eight cents was then and there received by said association, on account of interest then and there due and payable to said association by one Richard L. Dickson.

"And the jurors aforesaid, on their oaths aforesaid, do further present that the said entry so made as aforesaid was then and there false in this, that the said sum of five thousand three hundred and sixty-five dollars and eighty-eight cents was not then and there received by said association on account of interest then and there due and payable to said association from the said Richard L. Dickson, as he, the said James H. Britton, then and there well knew; and that the said entry, so made as aforesaid, was then and there false in this, that the said sum of five thousand three hundred and sixty-five dollars and eightyeight cents was not then and there received by said association. upon any account from any source, as he, the said James H. Britton, then and there well knew; and that the said false entry was then and there made as aforesaid with the intent then and there on the part of him, the said James H. Britton, to deceive any agent who might be thereafter appointed by the Comptroller of the Currency to examine the affairs of said association, contrary to the form of the statute of the United States in such case made and provided, and against their peace and dignity."

The thirty-four counts next following, numbered from 2 to 35, inclusive, charged, in the same language, the making of similar false entries in the same book with the same intent.

The thirty-sixth count was in all respects similar to the preceding thirty-five counts, except that it omitted the averment that the false entry was made with the intent "to deceive any agent who might be thereafter appointed by the Comptroller of the Currency to examine the affairs of said association," and in lieu thereof alleged it to be with intent "to injure and defraud the said association and certain persons to said jurors unknown."

The thirty-seventh count charged as follows: "That the said James H. Britton, late of said district, on the second day of April, in the year of our Lord one thousand eight hundred

and seventy-seven, at said district, being then and there president of a certain national banking association then and there known and designated as the National Bank of the State of Missouri, in St. Louis,' which said association had been theretofore created and organized under and by virtue of an act of Congress, entitled 'An Act to provide a national currency secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof,' approved June third, in the year of our Lord one thousand eight hundred and sixtyfour, and which said association was then and there acting and carrying on a banking business in the city of St. Louis, in'said district, under the said act of Congress and the acts amendatory thereof, did pay to a certain person, to the jurors aforesaid unknown, a large sum of money, to wit, twenty-four hundred dollars, out of the moneys and funds then and there belonging to and the property of said association, in the purchase by him, the said James H. Britton, from said unknown person, of a large number, to wit, forty certain shares of the capital stock of said association, which said shares of stock were then and there represented upon the books of said association to be the property of one Francis Fisher.

"And the jurors aforesaid, on their oaths aforesaid, do further present that the said James H. Britton, president as aforesaid, did then and there, by means of the payment aforesaid, in manner and form aforesaid, wilfully misapply the said sum of twenty-four hundred dollars of the moneys and funds as aforesaid of said association, with intent then and there, on the part of him, the said James H. Britton, to injure and defraud the said association and certain persons, to the jurors aforesaid unknown, contrary to the form of the statute of the United States in such case made and provided, and against their peace and dignity."

The next following nineteen counts, numbered from 38 to 56, inclusive, are similar to count 37, and need not be set out.

The next succeeding counts, numbered from 57 to 76, inclusive, but excepting the seventy-fourth, are similar to count 37, except that they omit the averment that the misapplication was made with intent "to injure and defraud the said

association and certain persons to the jurors aforesaid unknown." These counts aver no intent whatever. The seventyfourth count is similar to the thirty-seventh.

The next twenty counts, numbered from 77 to 96, inclusive, are in all respects similar to count 37, except that they contain the following additional averment, forming the conclusion of the first clause of the count, namely, "and which said shares of stock, so purchased as aforesaid, were then and there held by him, the said James H. Britton, in trust for the use of said association, and which said shares of stock were not purchased as aforesaid in order to prevent loss upon any debt theretofore contracted with said association in good

faith."

The next twenty counts, numbered from 97 to 116, are all similar to count 96, except that they omit the averment that the misapplication of the funds of the association was with the intent to injure and defraud the said association and certain persons to the jurors aforesaid unknown." These counts charge no intent.

The count numbered 117 was similar to count 36, and count numbered 118 was similar to count 1.

As no division of opinion respecting count numbered 119 is certified, it is unnecessary to notice that count.

The defendant demurred to the indictment. By order of the District Court the indictment was, on May 16, 1879, remitted and transferred to the next regular term of the Circuit Court of the United States for the Eastern District of Missouri, at which term the cause was heard upon the demurrer. Upon such hearing the following questions arose, upon which the judges of the Circuit Court were divided and opposed in opinion, namely:

1st, Whether it was necessary, in the counts of said indictment charging a fraudulent purchase by the defendant of certain shares of the capital stock of said association, to state for whose use the purchase was made, and whether, where it is charged in the indictment that the purchase of stock was made for the use of the bank, such averment vitiates the indictment.

2d, Whether it was necessary in the said counts to allege