"A recording of a mortgage in the office of the collector of the home port of the vessel has the effect, by its own force, and irrespective of any formalities required by a state statute to give effect to chattel mortgages, to give the mortgagee a preference over a subsequent purchaser or mortgagee."

To hold, therefore, that a mortgage upon a vessel of the United States is absolutely void because the notes for which it was given failed to set out that they were secured by such mortgage, would, in effect, read an important restriction into the act of Congress, which it manifestly was not intended should be included therein. I conclude that the commissioner was right in holding that the lien of the mortgage upon the proceeds of sale is entirely governed by the federal statute. Irrespective, therefore, of the statute of Illinois, the validity of the mortgage executed and delivered in accordance with the provisions of sections 4192 and 4193 of the Revised Statutes [U. S. Comp. St. 1901, p. 2837] is established, and the mortgage claim, unless its invalidity is proven for other reasons, may be paid out of the fund.

It is further objected that a proceeding is now pending in the state court of Illinois to set aside the mortgage upon the vessel on account of fraud, and to permanently restrain the original mortgagee from foreclosing the same. For this reason, it is insisted that no disposition should be made upon the claim against the fund until such action is determined. It appears from the evidence that a temporary order restraining the foreclosure of the mortgage lien was granted in the state court, but the bill upon which the injunction was founded was dismissed for lack of equity. Thereupon an appeal from the order dismissing the same was allowed, which is now pending, and upon filing a bond the injunction was reinstated. Directly after the injunction was dismissed, and before the appeal was allowed, the original mortgagee assigned the mortgage to the claimant. Subsequently the Gordon Campbell was libeled for seamen's wages and sold in this jurisdiction. Prior to the return day of the monition issued upon the original libel, founded upon a claim for but $30, the owner of the vessel applied for an immediate sale, consenting that all liens be transferred to the proceeds. The assignee of the mortgage thereupon presented his claim against the fund. Objection to payment is not made by the owner of the vessel, the complainant in the Illinois suit; it is made by his assignee. It is perfectly true that the court first having jurisdiction of the subject-matter has a prior right to decide the questions involved, but the rule is otherwise whenever the litigation is ended, or when the property which is the subject of the controversy is no longer in the possession of the court first acquiring jurisdiction. In that event. it is the duty of another court, whenever redress is sought in its forum, to take cognizance of the rights of the parties. Existing remedies may be invoked, and such appears to be the rule even if a decision was required upon the previous questions before the first tribunal. In the circumstances here presented, the dissolution of the injunction in the state court, and its subsequent renewal, did not revive the same to the extent of depriving the assignee of the mortgage from enforcing his lien to the proceeds on sale of the

vessel seized under admiralty process in this jurisdiction. Assuming the action pending in Illinois will terminate favorably to the complainant, how will such decision affect the fund in the registry of this court? The claimant is not a party to the Illinois action, and, moreover, as has been stated, the complainant in that action has assigned his interest in the res. If the mortgage lien was without consideration, and the same was assigned in furtherance of fraud, no reason is discoverable why such defense was not asserted before the commissioner appointed to ascertain and report upon the validity and priority of claims. Certainly no rule of comity can be invoked where, as here, the specific property is in custodia legis, especially where the owner of the vessel, who sues in another jurisdiction to set aside a mortgage as fraudulent, procures a sale of the property mortgaged in this jurisdiction, and subsequently assigns his interest to a third party. The object of the action pending in the state court of Illinois would seem to be nullified by the sale of the vessel in this port, upon the application of the owner, after seizure of the vessel under admiralty process. Nothing more can be obtained than a personal judgment, because of the alleged fraud of the mortgagee, in the state court of Illinois. Baltimore & O. R. Co. v. Wabash R. Co., 119 Fed. 678, 57 C. C. A. 322. Assuming the validity of the mortgage as a common-law lien, such lien is now transferred to the proceeds of the sale. If this view of the issues in the former suit be correct, I am unable to perceive any conflict of authority. The procedure of the action referred to is in no way obstructed, while, on the other hand, a long delay in disbursing the proceeds of the sale may result in inconvenience to those who are interested in the fund. This court, as was said in The Willamette Valley, supra, "must do something with the fund. It is absurd that it cannot."

Without deeming it necessary to further discuss this somewhat complicated question, I have decided to send the matter back to the commissioner for the purpose of allowing the assignee of the fund to give further evidence in opposition to the allowance of the Brinnen claim; such evidence to be given, at the option of the assignee, within 30 days from the date of the entry of this decision. Upon his failure to exercise his right here given within the period stated, the conclusion of the commissioner in relation to such claim must be sustained. The report of the commissioner in all other respects is accordingly affirmed, and the fund should be paid out in accordance therewith, except as modified by this opinion.

The report shows that fourteen libels have been filed by four different proctors. To lessen expenses, the various claims should be consolidated for further proceedings and payment. The adjudicated cases upon the subject of costs in admiralty do not permit allowing to a proctor who represents more than one petition, separate docket fees. Under the doctrine of Trustees v. Greenough, 105 U. S. 535, 26 L. Ed. 1157, an allowance of counsel fees to be taxed in a case where a fund is in court is permissible, irrespective of the statutory provisions. I think that an allowance equivalent to one docket fee to each proctor who has filed a petition herein, in view

of the statements of counsel, is not unreasonable. The following cases: Black Diamond Coal Mining Co. v. Grady (D. C.) 87 Fed. 483; Barron v. Mt. Eden (D. C.) 87 Fed. 483; The Bay City (D. C.) 3 Fed. 47; The Alert (D. C.) 15 Fed. 620-also authorize allowance of a docket fee in admiralty to counsel who have filed petitions or intervening libels.

So ordered.

In re BENSON.

(Circuit Court, S. D. New York. July 28, 1904.)

1. CRIMINAL LAW-REMOVAL OF PRISONER TO ANOTHER DISTRICT-SUFFICIENCY OF INDICTMENT.

Technical or formal objections to the sufficiency of an indictment will not be considered in proceedings for the removal of a federal prisoner to the district in which he is triable, but will be left for determination by the court in which it was found; but if, on a broad and liberal construction, the indictment does not appear to charge an offense, the prisoner should not be held for removal.

2. SAME.

An indictment for conspiracy under Rev. St. § 5440 [U. S. Comp. St. 1901, p. 3676], charged that petitioner conspired with others to obtain by means of fictitious applications and other false and fraudulent practices from the states of California and Oregon the title to large amounts of school lands owned by said several states, and lying within the boundaries of United States forest reservations, and then to exchange such lands, under the federal statutes providing therefor, for public lands of the United States subject to homestead entry outside of such reservations. Held, that while such acts would constitute a conspiracy to defraud the states, the indictment did not charge a "conspiracy to commit any offense against the United States, or to defraud the United States in any manner," within the meaning of the statute, since it appeared from its averments that the United States would obtain title to the school lands by the exchanges contemplated; and that such indictment would not sustain proceedings for the removal of petitioner to the district of the indictment for trial.

In the Matter of the Application of John A. Benson for Writs of Habeas Corpus and Certiorari.

The petitioner was indicted in the District of Columbia, and, not being found there, was arrested in the Southern District of New York upon a warrant of United States commissioner, based upon a certified copy of the indictment. Some testimony was introduced before the commissioner, the certified copy of the indictment was before him, identity was not disputed, and he committed the petitioner to the custody of the marshal to await the issuance of a warrant of removal by the district judge under section 1014, Rev. St. U. S. [U. S. Comp. St. 1901, p. 716].

Frank H. Platt, for petitioner.

Henry L. Burnett, U. S. Atty., and E. E. Baldwin, Asst. U. S. Atty.

LACOMBE, Circuit Judge. This court has recently held in another removal proceeding under a different indictment against this same petitioner that the insufficiency of the indictment will not be

1. See Criminal Law, vol. 14, Cent. Dig. § 509.

inquired into in such a proceeding (130 Fed. 486), but is a question to be decided by the court in which the indictment is found. All technical objections, all criticisms growing out of the artificial and often strained scrupulousness of criminal procedure are to be left to the court in whose jurisdiction the indictment is found, if such indictment itself contains a narration of events or acts which tend to establish the existence of the offense sought to be charged. Where, however, even upon a broad, liberal, and inartificial construction of the language of the indictment, it does not appear that any offense against the laws of the United States has been committed, the section (1014, Rev. St. [U. S. Comp. St. 1901, p. 716]) does not apply, and the prisoner should not be held for removal.

The crime with which the indictment purports to charge the petitioner is defined in section 5440, Rev. St. U. S. [U. S. Comp. St. 1901, p. 3676]:

"5440. If two or more persons conspire either to commit any offense against the United States or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy all the parties to such conspiracy shall be liable to a penalty of not more than ten thousand dollars, or to imprisonment for not more than two years, or to both fine and imprisonment in the discretion of the court."

There are 30 counts in the indictment, each concerned with a separate transaction. It will be necessary to consider a single count only, since all are substantially alike. The pleader has followed the archaic forms of expression commonly used in criminal practiceobscure, involved, tautological, and verbose. A single sentence runs stumbling over several printed pages without a period. The meaning can be discovered only by carefully rewriting the sentence actually or mentally, so as to conform it to the canons of modern English. When this is done, it will be found that the facts upon which the charge of conspiracy is based are these: Heretofore the United States, being at the time the owner thereof, conveyed to the states of California and Oregon, respectively, certain sections of public land; the sections so conveyed to these states being known as school lands. These school lands, or at least some portion of them, the two states sold, granted, and conveyed to individual holders. Subsequently the United States decided to establish forest reserves in certain localities in those states (and elsewhere), and under authority of statute maps were filed designating the boundaries of such reserves. Within those boundaries it would happen that, besides land still belonging to the United States, there would be included school lands which had been transferred to the states, and which were still held by them, and also school lands which the said states had conveyed to private owners by patents duly executed, and also school lands as to which steps had been taken to secure patents from the states. Inasmuch as it was desirable that all lands within forest reserves should be under the absolute control of the government, the statutes further provided that United States public lands located outside the limits of the reserves might be exchanged for lands within the same, with assent of the owner. Presumably since the possibility of an increase in value would be greater outside than in, the owners gen

erally might be expected to accept the offer. The sections providing for such exchange are these:

In Act June 4, 1897, c. 2, 30 Stat. 34, 36 [U. S. Comp. St. 1901, p. 1538], supplemental to Act March 3, 1891, c. 561, § 24, 26 Stat. 1103 [U. S. Comp. St. 1901, p. 1537]:

"That in cases in which a tract covered by an unperfected bona fide claim or by a patent is included within the limits of a public forest reservation, the settler or owner thereof may, if he desires to do so, relinquish the tract to the government, and may select in lieu thereof a tract of vacant land open to settlement not exceeding in area the tract covered by his claim or patent; and no charge shall be made in such cases for making the entry of record or issuing the patent to cover the tract selected: provided further, that in cases of unperfected claims the requirements of the law respecting settlement, residence, improvements, and so forth, are complied with on the new claims, credit being allowed for the time spent on the relinquished claims."

In Act June 6, 1900, c. 791, 31 Stat. 614:

*

"That all selections of land made in lieu of a tract covered by an unperfected bona fide claim, or by a patent, included within a public forest reservation, as provided in the act of June fourth, eighteen hundred and ninety-seven, shall be confined to vacant surveyed and non-mineral public lands which are subject to homestead entry not exceeding in area the tract covered by such claim or patent: provided, that nothing herein contained shall be construed to affect the rights of those who, previous to October first, nineteen hundred, shall have delivered to the United States deeds for lands within forest reservations and make application for specific tracts of lands in lieu thereof." This provision was re-enacted March 3, 1901, 31 Stat. 1037, c. 831 [U. S. Comp. St. 1901, p. 1544].

For reasons of public policy, which may be readily appreciated, these two states offered their school lands for sale with certain statutory restrictions. Sales were to be made only to citizens of the United States or to persons who had declared intention to become citizens, and only upon affidavit of the applicant showing his qualifications, and, amongst other things, his intention to purchase such lands in good faith, and for his own benefit, and that he had made no contract or agreement to sell the same. Moreover, the amount of such lands which should be sold by the state to each resident applying therefor was restricted to 640 acres in California and 320 acres in Oregon. Once the sale was made, however, to a bona fide applicant, and title in him perfected by the delivery of a patent for the same, the lands so sold became his to dispose of as he pleased, and there is nothing called to the attention of this court in the legislation of those states which prohibits a purchaser from buying such lands from any resident patentees who might subsequently decide to sell, even although by such purchases he might become the sole owner of thousands of acres of such school lands.

The particular "false and fraudulent practice" which is charged as the gravamen of the conspiracy is this: Applications for purchase were to be made and filed in the names of fictitious persons, and in the names of persons not really desiring and not qualified to purchase the same, and of persons who had already assigned to the conspirators; and these applications were in many instances to be supported by false, fraudulent, or fictitious affidavits. The details need not be more particularly rehearsed. Suffice it to say that the