Opinion of the Court.

shall be punishable by imprisonment at hard labor for not less than one year nor more than five years.”

The argument of counsel assumes that in this proceeding, by writ of habeas corpus, we can inquire into and correct nearly all errors which may have been committed by the District Court in the control of the case originally. This has been so often denied by this court, and the proposition is so clear, that in a writ of habeas corpus nothing can be inquired into but the jurisdiction of the court, that it is unnecessary to pursue the entire line of argument of counsel for appellant. Cuddy, Petitioner, 131 U. S. 280. We are of opinion, notwithstanding the allegation of counsel that there was no jurisdiction because the indictment did not charge that the letter embezzled was intended to be carried by a letter carrier, that it so alleged in the exact terms of the statute just cited, and is therefore sufficient.

With regard to the proposition "that the failure to allege in some of these indictments that the letter had not been delivered to the party to whom it is directed renders the whole proceeding void," we think it is unsound. While the purpose for which this clause was inserted in the act is not very clear, it was probably intended to repel the idea that the stealing or embezzling of such a letter after it had been carried through the mail or delivered by the letter carrier to its owner and its purpose served, did not render the party guilty under this statute. At all events, the fact of its delivery being a matter of defence, when it was proved that the party in the course of his employment had embezzled the letter and stolen the money, it will be presumed that the defendant made the most he could of that defence on the trial. We are not of opinion that it is necessary for us to examine into the question raised on the evidence at the trial as to whether the securities were put into the letter and that into the mail, as a mere decoy or not. The question whether it was intended to be conveyed by the mail or by the letter carrier was a question of fact to be ascertained by the jury, and in a case like this, where the party has been convicted of embezzling a letter and valuable property in a letter passing through the regular course of the

Dissenting Opinion: Fuller, C. J., Harlan, J.

mail and the hands of the letter carrier, where the indictment is a good one, and where the party has been found guilty and sentenced, we are not disposed to inquire into the motives for which the letter was put into the mails, even though the object was to detect or entrap the party in his criminal practices. For these reasons the judgment of the Circuit Court Affirmed.

is

THE CHIEF JUSTICE (with whom concurred MR. JUSTICE HARLAN) dissenting.

I am compelled to withhold my assent to the conclusion reached by the court in this case. In my judgment the District Court had power after the verdict to transfer the cause to the Circuit Court, and having done so, it required an order remitting the cause from the Circuit Court to the District Court, before the latter court could pronounce a lawful sentence. The petitioner was sentenced by the District Cour., which, as the record then stood, had no jurisdiction, and was committed accordingly, and while undergoing imprisonment under that sentence sued out the writ of habeas corpus. The Circuit Court then entered an order nunc pro tunc as of the previous term, remitting the cause into the District Court, basing its action upon "its recollection of the facts of the making of said order." The record before us does not disclose the existence of any minutes of the clerk or notes of the judge that the entry of such an order had been directed, or of any other official evidence to that effect, and I do not understand it to be contended that there was any such. Granting that, as has been said, the judge during the term is a living record, and may alter and supply from memory any order, judgment or decree which has been pronounced, and this, because he is presumed to retain his own action in his recollection; yet after the term has elapsed, the exercise of such a power to the extent of supplying an order upon which jurisdiction depends, in the absence of any entry, minute or memorandum to proceed by, or of any statutory provision expressly allowing it, ought not to be conceded in criminal cases. statute of amendments and jeofails has no application..

The

Statement of the Case.

Upon this ground, my brother HARLAN and myself are of opinion that the judgment should be reversed.

MR. JUSTICE GRAY was not present at the argument of this case and took no part in its decision.

MCMURRAY v. MORAN.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEVADA.

No. 193. Argued January 30, 1890. - Decided March 3, 1890.

A railroad company made a mortgage to secure an issue of 3000 bonds of $1000 each. It contracted with a contractor for the construction of 31 miles of its road and as part consideration therefor agreed to give him 310 of these bonds. Before any further issues were made it agreed with a banking house in New York, as a part consideration for their acquiring these bonds, that it would only issue bonds to the extent of $10,000 a mile on its constructed road, and on the faith of this the New York house bought and paid for the bonds, and the 31 miles of road were constructed. Subsequently, and without constructing any additional miles, it issued 147 more bonds which were mostly used in the settlement of debts to parties who had notice of the agreement with the New York house. Default having been made in payment of interest a bill in equity was filed to foreclose the mortgage; Held,

(1) That as to all persons acquiring any part of the 147 bonds with notice of the agreement with the New York house, the 310 bonds held by the latter were entitled to priority;

(2) That holders who took them without notice of it, whether taking originally from the company, or by purchase from one who took with knowledge, were entitled to share with the New York house in the distribution.

THE "Nevada and Oregon Railroad Company," a corporation of the State of Nevada, by its mortgage or deed of trust, executed April 25, 1881, bargained, sold and conveyed to the Union Trust Company of New York all of the property, franchises and estate, real and personal, then existing and to be acquired, including its line of road constructed or to be con

Statement of the Case.

structed or completed, to secure the payment of three thousand bonds of one thousand dollars each, to be issued by the mortgagor, and made payable on the first day of June, 1930, at the city of New York, with interest, semi-annually, at the rate of eight per cent per annum. Each bond contained an agreement that if there was a continuous default for six months in the payment of interest, the principal and all arrearages of interest thereon should, at the option of the holder, become immediately due and payable.

Of the three thousand bonds authorized to be executed by the railroad company, only six hundred were issued and certified by the trustee. The appellees, Moran Brothers, became the holders for value of 310 of the bonds so certified, paying therefor $248,000. In respect to those bonds, there was such default in meeting the interest thereon that appellees became entitled to declare the principal due and payable. And having so declared, the Union Trust Company brought suit in the court below for the foreclosure of the mortgage or deed of trust, the sale of the mortgaged property, and the application of the proceeds of sale in payment of the bonds held by Moran Brothers, and of such other bonds as were entitled to share in the proceeds.

The present suit was brought by Moran Brothers against the appellants as the holders of 147 of the 600 bonds certified by the trustees. It proceeds upon the theory that as between the appellees holding the 310 bonds first issued, and the appellants holding the 147 subsequently issued, the former were entitled to priority in the distribution of the proceeds of the sale of the mortgaged property.

It appears from the evidence that "The Nevada and Oregon Railroad Company," a Nevada corporation, entered into a written contract, of date August 26, 1880, with one Thomas. Moore, for the construction by him of certain divisions of its road, whose aggregate length was one hundred and eighty-five miles. A part of the consideration for Moore's undertaking this work was the representation of the company, embodied in the contract, that "fifty-year eight per cent first-mortgage bonds, to the extent only of ten thousand dollars per mile, and capital

Statement of the Case.

stock to the extent only of twenty thousand dollars per mile for the first one hundred and eighty-five miles will be issued, making a total of eighteen hundred and fifty thousand dollars in first-mortgage bonds, and thirty-seven hundred thousand dollars, par value in stock, upon the entire one hundred and eighty-five miles." The contract further provided for the payment to Moore of $100,000 in lawful money, $310,000 in firstmortgage bonds, and $450,000 in the stock of the railroad company, at par, for the Reno division as far as Beckwith Pass. The contractor was to have all the first-mortgage bonds as the work of construction progressed.

This contract was supplemented by another one, executed December 4, 1880, whereby the time and order of performance as well as of payments were changed. It provided that tho Reno division, from Reno to Beckwith Pass, should be first constructed; that "upon the shipment of 1000 tons of rails and splices the company should pay to the contractor $200,000 in cash, and upon arrival of same at Reno $150,000 in first-mortgage bonds and $300,000 in stock, and upon shipment of balance of rails for the present work $160,000 in first-mortgage bonds and $150,000 in stock;" that "the company shall deposit with the trustee in New York, on or before January 10, 1881, $10,000 in cash, and the $450,000 in stock, and, on or before January 25, 1881, the $310,000 in the first-mortgage bonds;" that this contract should not be "construed as abating or impairing any portion of the contract of August 26, 1880;" and that "the entire stock to be issued upon the line from Reno to the temporary terminus as herein stated [Beckwith Pass] shall be limited to $600,000, without reference to any excess in distance over thirty miles, and the first-mortgage bonds upon the same to $310,000."

A separate contract was made on the same day with reference to the construction of the road from Beckwith Pass to. the Oregon line.

The company having failed to make payments to Moore, as it had agreed to do, on account of work done on the Reno division, another contract was made February 1, 1881, by which the company stipulated to deliver to the contractor the