mails, and empower its courts to enforce those laws. So it may establish a customs system, an internal revenue system, a judiciary system, and do other things especially authorized by the national constitution; and it may pass all laws necessary and proper for carrying into execution the specific powers granted by that instrument. The peculiarity of our federal government, distinguishing it from all other confederacies previously existing, and from the confederacy of 1780 to 1789, which existed under the old articles of confederation, is that it is empowered to act upon individuals in the states in the exercise of the powers that have been adverted to, and is not limited in its powers to demands upon the constituent states in their corporate capacity. Its laws affect individuals, its authority controls individuals, its officers deal with individuals, its courts have cognizance of individuals, and, as the law is not a respecter of persons, if any individual wilfully and corruptly violates a law of Congress it will in general not avail him to plead that he is exempt from accountability by reason of his being an officer of a state, and did the act with which he is charged as an officer of the state.

It is very true, as has been decided in the cases cited at bar by defendant's counsel, that state officers are, as such, exempt from the operation of certain laws of the United States. A state officer's salary, for instance, cannot be taxed by the United States, because the power to tax would carry the power to destroy, and it is incompatible with the comity which should subsist between the federal government and those of the states that any general law of congress taxing salaries should be extended to the salaries of state officers. See Collector v. Day, 11 Wall. 125. So a state officer, appointed under state laws, responsible to state courts, and charged with duties and service to the state, is not in general liable to process from United States courts requiring him to perform positive duties imposed by laws of congress. See Kentucky v. Dennison, 24 How. 107.

But I am sure that these and like cases which have been decided, and were cited by defendant's counsel, none of them

go to the extent of deciding that a state officer who wilfully and corruptly violates a law of congress, passed for any of the constitutional purposes which have been indicated, is, qua state officer, clothed with impunity for his crime, and exempted from punishment. The laws of the United States. operate upon individuals without any reference in general to their relations to the state. The accident of their being state officers does not in general affect their liability as citizens to the ordinary process and jurisdiction of the courts of the United States, and, as before said, if they commit crimes against the United States they are punishable for such crimes.

Now, in the present case, a law is charged to have been violated which is necessary and proper to securing the efficient administration of their functions by the courts of the United States. There could be no proper administration of justice if the strong and influential were at liberty to arrest, imprison, and otherwise intimidate the weak and timid, and detain them from attendance as witnesses before the United States courts. Congress has constitutional power to pass laws proper for preventing the commission of this offence, and the plea and demurrer of the defendant virtually admits that he would be amenable to these laws but for the fact that he, in the acts complained of, was acting in the judicial capacity of a justice of the peace of the state of Virginia. So that the only question for consideration is whether a justice of the peace of a state may, in the exercise of his office, wilfully and corruptly violate a law of the United States. If this indictment merely charged the defendant with an erroneous judgment it could not be sustained, for errors committed even by so humble a judicial officer as a justice of the peace cannot be reviewed, corrected, or punished by indictment in any court, but must go up to an appellate court for correction on appeal or writ of error. But this indictment charges a wilful and corrupt motive and action on the part of this justice: charges an offence which is especially made punishable by a constitutional law of congress passed in 1831.

That justices of the peace and all judicial officers are pun

ishable at common law for corrupt conduct in their judicial office, when so expressly charged by indictment, is too well settled to need argument. The case of Jacobs v. The Commonwealth, 2 Leigh, 709, is an instance in which the courts have recognized this liability in the state of Virginia.

It is hardly worth while to notice the pretension that if this defendant is indictable at all it is only in a court of the state. In general, offences in violation of acts of congress are indictable only in courts of the United States. In some instances in the past a few offences of this class have been referred, by express provision of law, to state courts for trial; but such is not the policy of congress, and the practice, always exceptional and occasional, may now be regarded as abandoned. So the only question is whether state justices of the peace are liable, under an act of congress, to indictment in United States courts for a statutory offence, charged to have been committed wilfully and corruptly.

I think, after what has been said, that this proposition is too plain for argument, and I will overrule the defendant's demurrer, deny his motion to quash, and sustain the prosecution's demurrer to the plea.

IN THE MATTER OF LITCHFIELD, Bankrupt.

(District Court, S. D. New York. December 22, 1880.)

1. MARSHALLING ASSETS-REV. ST. 5121—WHAT ARE AVAILABLE ASSETS -NEGLECT TO RECOVER THEM.

The rule as to marshalling assets in bankruptcy prescribed by Rev. St. 5121, requiring that firm assets shall be first applied to the payment of firm debts, and individual assets to the payment of individual debts, and the rule of equity, that where there are no firm assets the firm creditors shall share pari passu with the individual creditors in the individual assets, are not limited to the case where there has been an adjudication in bankruptcy of the firm. Both the rule and the exception apply where the individual partners have been adjudicated bankrupts on petitions against them individually.

The firm creditors have a right to share pari passu with individual creditors in the individual estate, where the firm assets are not more

than sufficient to pay the costs and expenses properly chargeable to the firm estate. In re Slocum & Co. U. S. D. C. Vt. Oct. 4, 1879; affirmed, Blatchford, C. J., Dec. 13, 1880.

Where the bankrupt and his partner, being engaged as a firm in the business of constructing a railroad, failed shortly before the petitions in bankruptcy against the individual partners were filed, an attempt to have the firm adjudicated having been abandoned by reason of the requisite number of creditors failing to join in the petition, and assets of the firm, consisting of railroad cars and horses used by them in work on the railroad, worth several thousand dollars, passed, with the property of the railroad company, into the hands of a receiver of its property, appointed in an action brought in a state court after the firm failed, and shortly before the filing of the petitions, and it was not shown that the receiver had any title or rightful claim to the property, nor what had become of it during the seven years that have elapsed since he took possession:

Held, that the petitioners failed to establish the fact that there were no firm assets available for the payment of firm debts, and that the firm creditors were not entitled to share pari passu with the individual creditors in the estate of the bankrupt.

That the test of available assets for such purpose is whether, at the time of the filing of the petition in bankruptcy, there was an available fund to pay firm creditors; and a neglect by the firm creditors to avail themselves of such fund then existing, whereby it has been dissipated or lost to them, does not enlarge their equity against the individual estate, although in fact they have been paid nothing on their debts.

E. E. Anderson, for petitioners, cited In re Jewett, 1 N. B. R. 491; In re Downing, 3 N. B. R. 748; In re Melick, 4 N. B. R. 97; In re Goedde, 6 N. B. R. 295; In re Knight, 8 N. B. R. 436; In re McEwen, 12 N. B. R. 11; In re Collier, Id. 266.

W. Howard Wait and N. J. Vanderpoel, for assignee and individual creditors, cited Story on Partnership, §§ 376, 380; In re Byrne, 1 N. B. R. 464; In re Hartough, 3 N. B. R. 422; In re Jewett, 1 N. B. R. 491; In re Downing, 3 N. B. R. 748; In re Knight, 8 N. B. R. 436; In re Frear, 1 N. B. R. 660; In re McGuire, 8 Ben. 452; In re Noonan, 10 N. B. R. 300; Barclay v. Phelps, 4 Met. 397; Hudgins v. Lane, 11 N. B. R. 462; In re Plumb, 17 N. B. R. 76; Crompton v. Conklin, 15 N. B. R. 417; Corey v. Perry, 17 N. B. R. 147; In re Lewis, 1 N. B. R. 239; In re Little, Id. 341; In re Winkens, 2 N. B. R. 349; Foster v. Pratt, 3 N. B. R. 238; Bant v. Iron Co. 18

N. B. R. 279; In re Grady, 3 N. B. R. 227; In re Shephard, Id. 172; Forsyth v. Merritt, Id. 48; In re Hopkins, 18 N. B. R. 396; In re Abbe, 2 N. B. R. 75; Tucker v. Oxley, 5 Cr. 34; Merrill v. Neil, 8 How. 415; Howe v. Lawrence, 9 Cush. 553; Summerset, etc., Works v. Minot, 10 Cush. 592; Robb v. Mudge, 14 Gray, 534; Wild v. Dean, 3 Allen. 579; In re Johnson, 2 Lowell, 130; In re Long, 9 N. B. R. 227; In re Morse, 13 N. B. R. 376; In re Berrians, 6 Ben. 297.

CHOATE, D. J.. This is an application on the. part of firm creditors to be allowed to share pari passu with individual creditors in the proceeds of the individual estate of the bankrupt. The bankrupt, at and before his bankruptcy, was a partner with his brother, Electus B. Litchfield, in the business of constructing a railroad, and the petitioners are the creditors of the firm. Both of the partners were separately adjudicated bankrupt, and no adjudication of the firm has ever been had. Soon after the adjudication of this bankrupt, and after his death, an attempt was made to adjudicate the firm. by the commencement of proceedings against Electus B. Litchfield as survivor of his copartner, this bankrupt, but the requisite proportion of the creditors did not join in the petition, and the proceeding was abandoned.

The claim of the petitioners is that they are entitled to share pari passu with the individual creditors of the bankrupt in his estate, because there were, as they claim, no firm assets available for paying any part of the firm debts, and on the further ground that, where there is no adjudication of the firm, the provisions of section 36 of the bankrupt law, (Rev. St. 5121,) which require the assets to be marshalled, and the firm assets to be applied, in the first instance, to the payment of the firm debts, and the individual assets to the individual debts, do not apply, but that in each case joint and separate creditors all share alike.

The counsel for the assignee has contended at great length, and upon a review of the many conflicting decisions on this perplexing question, that there is no exception to the rule of marshalling the assets between firm and individual creditors, v.5,no.1-4