Ordway v. The Central National Bank of Baltimore.

tion, the State courts, having competent jurisdiction in other respects, may be resorted to for the enforcement of rights under such statutes.

The whole subject is well reasoned in the opinion, and the decisions reviewed, and the court very justly observe that when the structure and true relations of the Federal and State governments are considered, there is really no foundation for excluding the State courts from the exercise of such jurisdiction. In discussing the relation of the two governments and the operation of the laws of the Union, the court say: "The laws of the United States are laws in the several States, and just as much binding on the citizen and courts thereof as the State laws are. The United States is not a foreign sovereignty as regards the several States, but it is a concurrent, and, within its jurisdiction, paramount sovereignty. Every citizen of a Stato is a subject of two distinct sovereignties, having concurrent jurisdiction in the State,- concurrent as to place and persons, though distinct as to subject-matter. Legal or equitable rights acquired under either system of laws may be enforced in any court of either sovereignty competent to hear and determine such kind of rights and not restrained by its Constitution in the exercise of such jurisdiction. Thus, a legal or equitable right acquired under State laws may be prosecuted in the State courts, and also, if the parties reside in different States, in the Federal courts. So rights, whether legal or equitable, acquired under the laws of the United States courts, may be prosecuted in the United States courts, or in the State courts competent to decide rights of like character and class, subject, however, to this qualification, that where a right arises under a law of the United States, Congress may, if it see fit, give to the Federal courts exclusive jurisdiction."

And again, in pursuing the argument, it is said: "This jurisdiction is sometimes exclusive by express enactment, and sometimes by implication. If an act of Congress gives a penalty to a party aggrieved, without specifying a remedy for its enforcement, there is no reason why it should not be enforced, if not provided otherwise by some act of Congress, by a proper action in a State court. The fact that a State court derives its existence and functions from the State laws is no reason why it should not afford relief, because it is subject also to the laws of the United States, and is just as much bound to recognize these as operative within the State

Ordway v. The Central National Bank of Baltimore.

as it is to recognize the State laws. The two together form one system of jurisprudence, which constitutes the law of the land for the State; and the courts of the two jurisdictions are not foreign to each other, nor to be treated by each other as such, but as courts of the same country, having jurisdiction partly different and partly concurrent. That case leaves nothing to be said as to either aspect of the question here involved; and, therefore, whether the right to maintain this action be placed upon the express terms of the statute giving cognizance to the State courts, or simply upon the non-exclusion of State jurisdiction, in either case the action is maintainable. And that the cause of action is a penalty, to be recovered in a civil action of debt by the party grieved, constitutes no objection to the State courts taking cognizance of it and enforcing the right."

The case of the First National Bank of Plymouth v. Price, 33 Md. 487, has no similitude to the present. In that case the penalty was given by a statute of Pennsylvania, and the decision proceeded upon the principle that, as the law had no extra-territorial operation, the courts of one State will not enforce penalties imposed by the laws of another. But, as has been clearly shown, no such reason or principle applies as to the laws of the United States, when sought to be enforced in the courts of the several States. The Constitution and laws of the Union are the supreme law of the land, and are as much a part of the law of each State, and as binding upon the courts and people as its own local constitution and

laws.

From what has been said it follows that the demurrer, so far as it is grounded upon the want of right or power in the court to take cognizance of the case, must be overruled.

There are certain other objections raised under the demurrer to the amended declaration, of a purely technical character; but these objections appear to be without any substantial foundation, and therefore may be dismissed without comment. For the reasons assigned, the judgment of the court below must be reversed, and the demurrer overruled, and the cause remanded to be proceeded with in regular course.

Judgment reversed and cause remanded.

Commonwealth v. Tenney.

COMMONWEALTH V. TENNEY.

(97 Massachusetts, 50.)

Fraudulent conversion by National bank officers of property deposited with bank — Jurisdiction of State courts of offenses by officers of National

A State statute made it larceny for any "officer of an incorporated bank" to fraudulently convert to his own use property of the bank or belonging to any person and deposited therein. Held, (1) to apply to officers of National banks located in the State; and (2) that a State court had jurisdiction of an indictment under the statute against an officer or servant of a National bank for the fraudulent conversion of the property of individuals deposited in such bank.*

An officer of a National bank took bonds deposited with the bank and sent them to a broker in another State as collateral security for money advanced. Held, a fraudulent conversion and larceny within the statute.

IND!

NDICTMENT under Gen. Stats., ch. 161, § 39, which is as follows: "If an officer of an incorporated bank, or any person in the employment of such bank, fraudulently converts to his own use, or fraudulently takes and secretes, with intent so to do, any bullion, money, note, bill, or other security for money, belonging to and in possession of such bank, or belonging to any person and deposited therein, he shall, whether intrusted with the custody thereof or not, be deemed guilty of larceny in said bank and be punished," etc.

The indictment set forth that the defendant at Greenfield on March 1, 1866, "then and there being a clerk of the First National Bank of Greenfield, a corporation then and there duly and legally established, located, organized and existing under and by virtue of the laws of the United States," did fraudulently convert to his own use certain United States bonds belonging to one Purple, and then and there being deposited in the said bank.

*In Commonwealth v. Hall, 97 Mass. 570, it was held on the strength of this case that National bank bills are within a State statute punishing the baving in possession counterfeits of bank bills "issued by an incorporated banking company established in this State or within the United States." The opinion ou this point was simply a statement of the point. As to embezzlements, etc., by officers of National banks, see Van Campen Case, ante, p. 185; United States v. Taintor, ante, p. 256; Steele v. Tuller, ante, p. 375; Commonwealth v. Felton, post; Commonwealth v. Barry, post, note.

Commonwealth v. Tenney.

The evidence showed that the defendant while a clerk in the bank, as alleged, took the bonds from their place of deposit and sent them to a broker in New York as collateral security for advances made in stock speculations, but with the understanding that the bonds were not to be sold.

The defendant was convicted, and alleged exceptions.

C. Allen, Attorney-General, for the Commonwealth.

D. Aiken and S. O. Lamb, for defendant.

FOSTER, J. This indictment is founded on Gen. Stats., ch. 161, $39, within the provisions of which, we have no doubt, National banks, created under the laws of the United States, must be held to be included. The words "incorporated bank" are broad enough to embrace not only banks existing at the date of the passage of the act, but such as have been chartered since; and they are not limited to corporations created by the laws of Massachusetts, but likewise include such National banking corporations as are located within this Commonwealth, if the offense to be punished is here committed.

The further objection is made, that the courts of the United States are vested by the Judiciary Act of September 24, 1789 (U. S. Stat. 1789, chap. 20, § 11), with exclusive cognizance of all crimes cognizable under the authority of the United States, except where it is otherwise provided by the acts of Congress. But an examination of the statutes of the United States leads us to the conclusion that the offense charged in this indictment has not been made punishable by any act of Congress. The enactments cited on behalf of the defendant punish the embezzlement of the property of National banks, but not of the property of individuals, deposited with and in the custody of such banks. U. S. Stats. 1863, chap. 58, § 52; U. S. Stats. 1864, chap. 106, § 55. As the Federal courts have no criminal jurisdiction except that conferred by Congress, no question can be made as to the constitutionality of State legislation punishing such frauds, until they have been made punishable by the Federal laws. There is no view of the relative, or of the concurrent powers of the two governments, which affects the decision of the present case; for all courts and jurists agree that State sovereignty remains unabridged for the punishment of all crimes committed within the limits of a State, except so far as

Commonwealth v. Tenney.

they have been brought within the sphere of Federal jurisdiction by the penal laws of the United States. Commonwealth v. Fuller, 8 Metc. 313; Commonwealth v. Peters, 12 id. 387.

The objection that the First National Bank of Greenfield had not been duly organized as a corporation was not insisted upon at the argument, and, so far as we can judge from the evidence reported, appears to have no foundation.

[The court then decided that a former acquittal on the trial of a common law indictment for a larceny of the bonds was not a good plea in bar and continued.]

With reference to the fraudulent and felonious character of the acts proved, and their sufficiency to warrant a conviction, we entertain no doubt. To take from their place of deposit the bonds of a depositor and send them out of the State to be used as collateral security for the defendant's own debt, was a fraudulent conversion. Intention to restore the bonds, and the agreement of the party who received them not to sell or dispose of them, cannot do away with the criminal nature of the transaction. A guilty intent is necessarily inferred from the voluntary commission of such an act, the inevitable effect of which is to deprive the true owner of his property and appropriate it to the defendant's own use. Perhaps in a majority of cases the party who violates his trust in such a manner does not expect or intend that ultimate loss shall fall upon the person whose property he takes and misuses. But no hope or expectation of replacing the funds abstracted can be admitted as an excuse before the law. The forger who means to take up the forged instrument, the thief who contemplates making eventual restitution, and the man who embezzles money or bonds with the design of restoring them, all fall under like condemnation in courts of justice and wherever the rules of sound morality are respected. Exceptions overruled.