Opinion of the Court. purposes of contributing to works of internal improvement." The money paid for the guaranteed bonds was obtained on loan and upon the faith and credit of the city, and it was for the purpose of contributing to works of internal improvement. The fact that it was not advanced directly to the city, but, upon its assurance of repayment, to the railroad company, is not a departure even from the letter of the law, much less its meaning; nor does the fact that the money was advanced partly on the credit of the railroad company diminish the presumed reliance of the purchaser upon that of the city, with which it was joined. It is difficult to conceive of language more comprehensive than that employed, to embrace every form of security in which the faith and credit of the city might be embodied; and that in such cases it is not important to the character of the transaction that the money is obtained in the first instance by the railroad company, upon the credit of the city, was directly ruled in Rogers v. Burlington, 3 Wall. 654, and affirmed in Town of Venice v. Murdock, 92 U. S. 494. If the city of Savannah had, by virtue of an arrangement with the railroad company, received from the latter its bonds, and had itself, having indorsed the guaranty in suit, delivered them after sales to purchasers, and, receiving the money, had paid it over to the railroad company as a contribution to purposes of internal improvement, the transaction could not have been made the subject of a cavil, as unauthorized by the act of 1838; and yet this is the precise legal equivalent of the transaction as made. We have no hesitation in saying that it is equally embraced within the meaning of that statute, and that the act in question was in force at the date of the guaranty, and accordingly governs it. The substance of the transaction was, that, in consideration of the money advanced to the railroad company as a loan on the faith and credit of the city, the latter required the railroad company to indemnify it against loss on that account, a precaution which no implication in the statute forbids, and that result was accomplished by the form of the obligation, by which the railroad company became the principal debtor, and the city of Savannah guarantor merely of its bonds. Opinion of the Court. It does not detract from the force of this conclusion that the guaranty recites that it was authorized by a public meeting of the citizens thereof, as if it were the case of bonds issued under the act of 1856, which required the recommendation of such a meeting. But if the fact is immaterial, the recital is not injúrious. And the oficial record of the transaction shows that such a meeting was held for the purpose of quieting doubts, and not to raise them. The authorities of the city at that time were only anxious to omit nothing which the most critical might regard as important in securing for its obligations all the weight and value properly belonging to an unquestionable pledge of its faith and credit; and certainly now, after the lapse of twenty years, in which no such question has been raised, it would, in the language of Mr. Justice Grier, in Mercer County v. Hacket, 1 Wall. 83, "be contrary to good faith and common justice to permit them to allege a newly discovered construction of an equivocal power." Van Hostrup v. Madison City, 1 Wall. 291; Meyer v. City of Muscatine, 1 Wall. 384; James v. Milwaukee, 16 Wall. 159. In our opinion the act of 1838 authorized the guaranty made by the city of Savannah upon the bonds of the railroad company, and it constitutes a valid and subsisting liability. This disposes of the only question in the case deserving serious consideration; and the judgment of the circuit court is there fore Affirmed. CITY OF SAVANNAH v. MARTIN. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF GEORGIA. Decided April 2d, 1883. MR. JUSTICE MATTHEWS delivered the opinion of the court. This case is identical in its circumstances with that of the mayor and aldermen of the city of Savannah, plaintiffs in error, against Eugene Kelly. Judgment affirmed. Opinion of the Court. UNITED STATES v. BRITTON & Another. ON CERTIFICATE OF DIVISION IN OPINION, FROM THE EASTERN DISTRICT OF MISSOURI. Decided April 2d, 1883. Indictment-National Bank. It is no violation of the provisions of § 5440 Rev. Stat., subjecting to penalties persons conspiring to commit an offence against the United States, and persons doing acts to effect the object of the conspiracy; and no violation of § 5209 Rev. Stat., subjecting to punishment a president or a director of a national banking association who wilfully misapplies the money, funds or credits of the association, if the president and such a director conjointly cause shares in the capital stock of such association to be purchased with the money of the association, and held on trust for its benefit. Indictment for conspiracy by Britton as president and Bates as director of a national banking association, to injure and defraud the association by wilful misapplication of its money. Rev. Stat. §§ 5209, 5440. The acts which formed the subject of the alleged conspiracy are the same which are set forth in the counts in the indictment from 77 forward in United States v. Britton, 107 U. S. 655, and which were there held, when not charged as a conspiracy, not to be violations of the statutes. Mr. Assistant Attorney-General Maury for the United States. Mr. Geo. H. Shields and Mr. Chester A. Krum for defendants. MR. JUSTICE WOODS delivered the opinion of the court. In this case the indictment contained two counts. They charged a conspiracy between James H. Britton and Barton Bates, the first being president and a director and the latter a director of the same banking association, to misapply its funds by the purchase therewith of the shares of the association. The first count described the offence which defendants conspired to commit substantially as it is set forth in count seventy-seven, and the second count described the offence as the same Statement of Facts. is set forth in count ninety-seven in United States v. Britton, 107 U. S. 655. The judges of the circuit court were divided in opinion upon the question whether the counts sufficiently stated an offence under sections 5209 and 5440 of the Revised Statutes, and the same has been duly certified to us for our opinion. What we have said in United States v. Britton cited above, disposes of this question. We answer in the negative. UNITED STATES v. BRITTON. ON CERTIFICATE OF DIVISION IN OPINION, FROM THE EASTERN DISTRICT OF MISSOURI. Opinion, April 2d, 1883. Indictment-National Bank-Revised Statutes. 1. It is not an offence under § 5209, Rev. Stat., which forbids the wilful misapplication of the moneys of a national banking association by a presi-. dent of the bank, for such officer to procure the discount by the bank of a note which is not well secured, and of which both maker and indorser are, to the knowledge of the president, insolvent when the note is discounted; and to apply the proceeds of the discount to his own use. 2. Assuming that it was the duty of a president of a national banking association to prevent the withdrawal of deposits while the depositor is indebted to the association, he is, nevertheless, not liable for a criminal violation of § 5209 Rev. Stat., forbidding the wilful misappropriation of the funds of the bank, solely by reason of permitting a depositor who was largely indebted to the bank, to withdraw his deposits without first paying his indebtedness to the bank. Indictment against the president of a national banking association. The indictment contained three counts. It was found by the same grand jury as the indictment in case No. 406, just decided, and was remitted and transferred to the circuit court in like manner. The first count charged that the defendant, James H. Britton, on March 24th, 1877, within the Eastern District of VOL. CVIII-13 Statement of Facts. Missouri, being the president and a director of the National Bank of the State of Missouri, the same being a national banking association organized under the act of Congress, "did cause and procure to be then and there received and discounted by said association a promissory note, which said note was then and there in the words and figures following: "$20,835.] ST. LOUIS, March 24th, 1877. "Four months after date I promise to pay to the order of Geo. F. Britton, negotiable and payable at the National Bank of the State of Missouri, in St. Louis, twenty thousand eight hundred thirty-five dollars, for value received, without defalcation or discount, with interest, after maturity, at the rate of ten per cent. per annum. "J. H. BRITTON." That the note was indorsed as follows: "Geo. F. Britton." That the defendant converted to his own use the proceeds of the discount of said note, to wit, the sum of $20,251.63; that said note, when so discounted, was not well secured; that "said James H. Britton, and the said payee and indorser of said note, to wit, one George F. Britton, were then and there insolvent, as he, the said James H. Britton, as president and director as aforesaid then and there well knew;" and that said James H. Britton, by procuring said note to be discounted, and by applying the proceeds of said discount to his own use, wilfully misapplied the said sum of $20,251.63 of the money and funds of said association, with intent then and there to defraud said association and certain persons to the grand jurors unknown. The second count charged that on June 2d, 1877, within the Eastern District of Missouri, one George F. Britton was indebted to said association in the sum of $79,480.23, as the maker of five promissory notes then unpaid. That said indebtedness of George F. Britton was known to James H. Britton, president and director of said association; that on said June 2d, 1877, said notes were not well secured and said George F. Dritton was insolvent, both of which facts said James H. Britton then well knew. Nevertheless, said James H. Britton, |