The United States v. De Grieff. from which I have above quoted. On the contrary, two of those cases are cited with apparent approval, in the opinion of the Court. The opinion, indeed, supports the present indictment, for, by way of illustration, it refers to a statute of Maine similar in character to the statute upon which this indictment is drawn, where it is made an offence to conspire to commit any crime punishable by imprisonment in the State prison; but it points out, that an indictment under the statute of Maine, to be good, must specify the crime charged as the object of the conspiracy, so as to enable the Court to see whether it be one punishable by imprisonment in the State prison. The present indictment, so judged, is sufficient, for, the charge made is not general, that the defendants conspired to commit an offence against the United States, but it descends to particulars and particularizes the act as being an agreement between the defendants to conceal and destroy certain described papers relating to the importation of certain merchandise, entered into by the defendants for the purpose of suppressing evidence of fraud in connection with that importation, contained therein. The act thus particularized is made by statute an offence against the United States, and it thus appears, that, if proved, it will support a conviction. under section 5,440. While, therefore, the determination in Cruikshank's case cannot control the determination in any case like this, the opinion there delivered is in harmony with the conclusion that the present indictment is sufficient in law to put the defendants upon their trial. The remaining objection to be considered is, that, upon the showing of the indictment, the defendants should have been charged under section 5,443 and cannot be charged under section 5,440. This objection is not pressed upon the ground of merger. Clearly, it could not be pressed on that ground, for, there is no merger in crimes of equal rank, such as misdemeanors. (United States v. McKee, 4 Dillon, 128.) But, it is supposed that a different ground is taken, by claiming that the facts stated in the indictment show that the conspiracy complained of forms part of an accomplished crime, Harvey v. Allen. made punishable by section 5,443, and cannot, therefore, be made the subject of a prosecution under section 5,440. But, if there be no merger, there is no force in this suggestion. It may well be, that one who has been once tried upon a charge of an offence under section 5,443 cannot be again tried under section 5,440, for a conspiracy that formed an element of the offence already tried. No such question is here raised. Here, the question is, whether it is competent for the Government to put the defendants upon trial for having done what by section 5,440 is made an offence against the United States, they never having been before called in question for that act. That offence not having been merged in any other offence, there is no possible ground on which to decide that it cannot be prosecuted. The case of McKee, above cited, is an authority adverse to such a contention. The motion to quash is, for these reasons, denied. William P. Fiero, (Assistant District Attorney,) for the United States. Robert S. Green and Aaron J. Vanderpoel, for the defendants. JOEL D. HARVEY, RECEIVER OF THE SCANDINAVIAN NATIONAL BANK OF CHICAGO vs. BENJAMIN F. ALLEN AND OTHERS. IN EQUITY. After a circulating note of a national bank, which it had failed to redeem in lawful money, had been protested, under § 46 of the Act of June 3d, 1864, (13 U. S. Stat. at Large, 113,) an attachment from a State Court was levied on moneys of said bank on deposit in another national bank, to secure a debt from it to A. Subsequently, a receiver of the bank was appointed, under § 50 of said Act: Held, that, under § 52 of said Act, said levy was void. Harvey v. Allen. The receiver, having applied to the State Court to dissolve such attachment, without becoming a party to the suit in the State Court, and such motion being denied, and he having then immediately brought this suit against A., and the bank in which the moneys were on deposit, and the sheriff who levied the attachment, to assert his title to such moneys: Held, that he was entitled to such relief. A. having, after process in this suit was served on the defendants, obtained a judgment in his suit in the State Court, and collected it by execution against the moneys so attached, this Court decreed that A. should pay directly to the plaintiff the money he had so collected, and the bank in which the moneys had been on deposit should pay such money if, and only if, it could not be collected from A.; that such bank should pay costs to the plaintiff; that such bank should not have costs against A.; that A. should pay costs to the plaintiff; that the sheriff should not have costs against the plaintiff; that the plaintiff should recover from A. the costs of making the sheriff a party, and the costs of the sheriff's defence, the latter costs to be paid over to the sheriff by the plaintiff, when collected; and that the bank in which the moneys had been on deposit should respond to the plaintiff for them, with interest from the time when process in this suit was served on it, subject to the said decree as to payment by A. of what he had received of such moneys. (Before BLATCHFORD, J., Southern District of New York, February 19th, 1879.) BLATCHFORD, J. The Scandinavian National Bank of Chicago was a bank organized under the national banking Act, and subject to its provisions. It was located at Chicago, Illinois. On the 10th of December, 1872, it failed to redeem a circulating note of the denomination of $5, issued by it, when payment thereof was legally demanded at its office in Chicago, during the usual hours of business. On the same day a notary public duly protested said note for non-payment, and served a written notice of the protest on the president of the bank, and it stopped doing business, and a United States bank examiner took possession of all of its books and assets. Section 46 of the Act of June 3d, 1864, (13 U. S. Stat. at Large, 113,) provides, that, if any national bank shall fail to redeem in lawful money any of its circulating notes, when payment thereof shall be lawfully demanded, during the usual hours of business, at its office, they may be protested by a notary public. The notary is required to give notice of the protest to the president or cashier of the bank, and to forward notice of the protest to the comptroller of the Harvey v. Allen. currency. Section 50 authorizes the comptroller, on becoming satisfied, as above specified, that any bank has so refused to pay its circulating notes and is in default, to forthwith appoint a receiver, who, under the direction of the comptroller, shall take possession of the books, records and assets of the bank, and collect its debts. Provision is made for the receiver to turn the assets into money and pay such money to the treasurer of the United States, and for the comptroller to distribute such money pro ruta among the creditors of the bank. Section 52 is in these words: "All transfer of the notes, bonds, bills of exchange and other evidences of debt owing to any association, or of deposits to its credit, all assignments of mortgages, sureties on real estate, or of judgments or decrees in its favor, all deposits of money, bullion, or other valuable thing for its use, or for the use of any of its shareholders or creditors, and all payments of money to either, made after the commission of an act of insolvency, or in contemplation thereof, with a view to prevent the application of its assets in the manner prescribed by this Act, or with a view to the preference of one creditor to another, except in payment of its circulating notes, shall be utterly null and void." On the 18th of December, 1872, the comptroller, by an instrument in writing reciting the necessary preliminary facts, appointed the plaintiff in this suit to be receiver of said bank, with all the powers, duties and responsibilities given to or imposed upon a receiver under the provisions of said Act. At the time the Scandinavian Bank failed, the National Broadway Bank, another national bank, located in the city of New York, and one of the defendants in this suit, had on deposit moneys belonging to the Scandinavian Bank, subject to its draft. On the 9th of December, 1872, the defendants Allen, Stephens and Blennerhassett, composing the firm of Allen, Stephens & Co., held a sight draft drawn by the Scandinavian Bank on the Broadway Bank, for $650. On that day they presented the same for payment to the latter bank, but it was not paid, and thereupon it was duly protested and notice given to the former bank. On the 12th of December, Harvey v. Allen. a warrant of attachment was issued out of the Supreme Court of New York, on the application of Allen, Stephens & Co., in an action in said Court by them against the Scandinavian Bank, to recover $650, with interest from December 9th, and on the ground that said bank was a foreign corporation organized under said Act of 1864, commanding the sheriff of the city and county of New York to attach and safely keep all the property of said bank within his county, or so much thereof as might be sufficient to satisfy the said demand, together with costs and expenses. On the 13th of December, this attachment was levied by the defendant Brennan, as such sheriff, on the moneys of the Scandinavian Bank in the possession of the Broadway Bank. A summons was issued in said action, dated December 12th, demanding judgment for $650, with interest from December 9th, and costs. A complaint, setting forth the cause of action, was verified December 18th. On the 19th of December, in accordance with the State practice, an order was made by the State Court, that the summons be served by publication in two newspapers, and that a copy of the summons and complaint be deposited in the post-office, directed to the Scandinavian Bank, as defendant. On the same day the summons and complaint were filed in the State Court. On the 8th of February, 1873, the attorney of the United States for this District caused an affidavit to be made by Mr. Tremain, entitled in the suit in the State Court, reciting the proceedings therein, and setting forth that the Scandinavian Bank had suspended and become insolvent December 9th, 1872; that Mr. Harvey had been appointed its receiver, by the comptroller, under said Act; that he, said attorney, had "been instructed to act for said receiver in and about the matters and proceedings appertaining to the claim of" Allen, Stephens & Co.; and that, upon the facts so stated, and all the proceedings in said suit, and, upon the ground, among others, that the State Court had no jurisdiction, and that the continuance of the proceedings in said action, and of said attachment, was in violation of said Act of Congress, and that said attachment was issued after |