dissenting. — I cannot concur in the conclusions .reached upon the questions discussed in the foregoing opinion. I shall proceed, with great brevity, to point out the grounds of my objection to the opinion, and state the reasons supporting my views. The questions are those of no great breadth, and involve the application of elementary principles which are very familiar to the profession.
I. — The grand jury which presented the indictment in this ¡case was duly impaneled and sworn, and discharged the duties prescribed by law to be performed by that body. It is not pretended that the law,'in the least particular, was disregarded or disobeyed in the proceedings, after the jury was impaneled, ■resulting in the indictment of the defendant.
is. — —: segrand jury, The law is careful that only such persons shall be impaneled upon the grand jury as shall have been legally selected, The manner of the selection is clearly described in the foregoing opinion. Among other things the law directs that certain officers shall compare the ballots, *617used in drawing the jury, with the lists of jurors’ names. 'The sheriff is named as one. In this case the duty assigned to the sheriff was discharged by his deputy. Now it is not pretended that the duty required of this officer was not perfectly performed. On the contrary, it is made to appear that proper corrections were made, by the officers present, in the ballots, so that they exactly corresponded with the jury list. The la# in all respects, as to the thing to be done, was complied with to the very letter. But the point made against the indictment is, that one of the officers discharging the duty was not the officer named by the law. What, the law requires was done; but, of the two persons doing it, one was not an officer named ■in the statute. Now there can be no pretence that prejudice resulted to defendant — that his rights were violated, for all things the law required were performed.
. It cannot be that the irregularity complained’of affected the •power of the grand jury — deprived that body of jurisdiction to find and present the indictmént. It will be remarked that the persons composing it were the very individuals selected by the law. Had the sheriff compared the ballots instead of his .deputy, no different selection of jurors would have .been made. .The irregularity occurred'in proceedings intended to secure this very end, but that end was just as certainly attained with the irregularity as without it'.' Now, suppose the'grand jury .be regarded as a-tribunal and the strictest rules applicable to ■questions of jurisdiction of such á body be applied, can it be pretended that a mere irregularity, of the kind of the one under consideration, 'will defeat its jurisdiction? • What counsel •would claim that, because the ballots for the .judge of the District Court were not counted and scrutinized by an officer .required to do so, that his certificate of election was not signed -by the proper officer, that there was some irregulárity in conducting his election on account of an officer not named by law participating therein, yet notwithstanding all this, he had the majority of the votes and was legally elected — who would hold; I inquire, that, after being duly commissioned and qualified, his judgments would be void for want of jurisdiction? Yet it ;'is.insisted that irregularitieaof, this kind.defeat the action of *618a grand jury, and require this court to hold a conviction thereunder void. And this is claimed in the face of the Code, •§ 4538, which requires us, “without regard to technical errors or defects which do not affect the substantial rights of the parties, .to render such judgment as the law demands.”
But we are not left to arguments based upon legal principles to guide us to a correct conclusion in this case. This court has, by more than one decision, settled a rule the application of which supports the sufficiency of the indictment. It was directly decided in The State v. Carney, and in three other cases covered by the same decision, 20 Iowa, 82, that the provisions of the law in regard to the selection and drawing of jurors are directory. The same point was ruled in The State v. Ansaleme, 15 Iowa, 44. It is true that in neither decision is the point discussed to any great extent, yet it is directly decided, and in each was the controlling point in the case. That the rule accords with sound reason and recognized principles of the law, I have no doubt. The distinction between mandatory and directory statutes is this: If the thing commanded by a statute is the thing required therein, the law is mandatory. But when the thing commanded to be done is but incidental to the thing, required, the statute in that case is directory. When a statute directs proceedings to be done in a prescribed way or manner, which does not appear essential to the judicial mind, it will bo held directory. See Potter’s Dwarris on Statutes, 221, et seq., and notes; Shaw v. Orr. 30 Iowa, 355. In applying these rules we will find that the statute directing the selection of jurors requires the given number of lawful men to be selected; this is the thing requwed. The making of the lists, the comparison of the ballots therewith by the officers named, etc., are matters siniply incidental to this thing required. It certainly must appear to the judicial mind that if the ballots are truly compared with the jury list by an officer other than the sheriff, it is a deviation in a matter which is not essential. The essence of the thing required by the statute has been attained; it will not be defeated on account of deviation in matters of form and "which are merely incidental in their character. To my mind *619these views conclusively support the doctrine of the cases just cited.
The provisions for comparing the ballots with the jury list by the officer named in the statute being purely directory, the indictment is not bad by reason of the fact that there was not in this respect a strict compliance with the statute.
16.-: —. Dutell v. The State, 4 G. Greene, 125, cited in the majority opinion, holds a doctrine in conflict with the cases cited. The decision was made without reference to either principle or authority and is simply the announcement of a conclusion upon the facts presented to the court. That it is unsupported by principle I have shown. The learned counsel for the prisoner has not cited an authority sustaining it.
While I have proper regard for the decisions of the court, however ancient they may be, and acknowledge my obligation to obey the maxim stare deeisis, I am not thereby required to follow a case that has been overruled. The State v. Carney, and The State v. Ansaleme, supra, settle principles utterly inconsistent with Dutell v. The State — they sap its very foundation by removing its only support and practically, though not in words, overrule it. I am relieved of the responsibility of declaring my readiness to overrule it — that has been effectually done. But I am free to declare that unsupported though it be by precedent and principle, I would hesitate long before I would refuse to follow it, were the later conflicting cases out of the way.
I am utterly unable to discover force in the argument found in the opinion of the majority to support the position therein assumed, that it was essential to the protection of defendant’s rights that the ballots should have been compared with the jury list by the sheriff. The position is this, and its statement abundantly refutes it: The act of comparing the ballots was essential to the preservation of the rights of the prisoner; the act was fairly and fully done by an officer not named in the law; while the defendant had the benefit of the act, he suffered prejudice because it was not done by the proper person. This is giving more force and importance to forms and names than we are accustomed to witness now-a-days.
*620The authorities cited to support the position that “ if the trial of a cause should be before a person not authorized to act as judge, a conviction, although obtained in strict accord with all the forms and rules of law in every other respect,’ would be void,” can hardly be disputed anywhere, and if would astonish me to hear any one deny thé proposition! The difficulty is in its application to this case. As we have shown, the grand jury was a legal body, notwithstanding the irregularities complained of; it was, therefore, authorized to find-and present the indictment. If authorities could be cited holding that a judgment of one filling a judicial position would be void on account of irregularities in his election or appointment, which went to the form thereof, though he was in fact elected or appointed, they would support the conclusion of the foregoing opinion; nothing short of this will.
Great reliance is placed in the foregoing opinion upon Sec! 4337 of the Code, which directs that' a motion to set aside an indictment must be sustained if “ the grand jury were not selected, drawn, summoned, impaneled, or sworn as prescribed by law.”' This relates to the manner of doing the acts mentioned, and is to the effect that if that manner is not in compliance with law the jury was hot a legal body, and the indictment would, therefore, be bad.
But we have seen that, as to the manner of an act prescribed by statute, the law will be construed as directory when the manner does not appear essential to the judicial mind. Another way or' manner will be held a compliance with the law. The section of the Code under consideration, therefore, does not require an indictment to be set aside when the manlier of the selection of the grand jury is held to be a sufficient compliance with the statute.. ’
I must be permitted to say that, in my judgment, the opinion of the majority does not harmonize throughout; in truth, there is apparent conflict. It holds that a jury may be selected from a list differing in number from that prescribed by law, or from a list which has names upon it not placed there in the manner required by Láw. A jury, selected from such a list, my -brothers hold, is a. legal body. But, because the ballots *621for the jurors are not compared by the sheriff instead of the, deputy sheriff, it is an illegal body. It is impossible upon principle to support an indictment against objections founded upon irregularities of the one kind • and to overthrow it because of .defects of the other class. There is no distinction that can be made between the one case and the other.
II. In the fifth and sixth points of the opinion of the majority of the court, the indictment is held'to be bad because^ 1, it fails to allege the names of the persons to whom the money alleged to have been embezzled was loaned; and, 2,.it does not charge “ the manner in which the money was con-* .verted” by defendant.’
. I will advance a few*general thoughts and announce-certain familiar principles of the law before considering separately .these objections.
17 _. In, aictment. ■ An indictment is sufficient which contains “ a statement of the facts constituting the offense in ordinary and concise lam guage, without repetition, and in such a manner as enable a person of common understanding to know what is intended.” Code, § 4296. It “must be direct and certain as regards: . * * * * 2. The offense charged. 3. The particular circumstances of the offense, when they are necessary to constitute a complete offense.” § 4298. It will be •observed that, under these sections, nothing further is required in the statement of the crime charged than an averment of the facts constituting the offense, and that circumstances of the offense need not be stated unless they he necessa/ry to conT stitúte a complete offense. It is very plain that under these .sections all that is required in an indictment is the statement of the facts which under the statute constitute the offense. Incidental circumstances, collateral or connected facts, and matters and things not of the essence of the crime, need not be averred. About the best rule for • determining when an indictment is sufficient is this: It should present such averT ments of facts upon which the court may determine without the aid of presumptions or intendments that a crime, known to the law, is described therein. It is not sufficient to aver ■conclusions' of law, or to charge a crime by the designation it *622bears in the law. An indictment charging an accused with embezzlement, larceny, or robbery, would not be sufficient. The facts constituting these offenses, as they are defined by statute, must be set out. It is also often said that facts which will enable, the accused better to plead an acquittal or conviction ought to be set out in the indictment. But this does not extend to facts which constitute no part of the crime itself, and does not require a fuller statement of fads than the rule just stated. The courts hold that certain matters connected with the offense, as the name of the party injured, ought to be found in the indictment to point out and identify the crime charged, enabling the party, if again indicted, to plead with greater certainty a previous acquittal or conviction. State v. McConkey, 20 Iowa, 574.
In the indictment in the case under consideration, the defendant is charged with the crime of embezzlement'. This crime is created by and defined in the statute, cited in the opinion of the majority. The facts to support this charge are in the first count concisely stated, and show: 1, the official character of defendant; 2, that he was charged with the custody of public money; 3, that he had in his possession, as an officer, a sum of money named; 4, that without authority of law he did unlawfully loan a sum named. In the second count it is averred that he did unlawfully and feloniously convert a sum of money named to his own use. The facts here alleged constitute .the crime of embezzlement; nothing is wanting to show the crime as it is defined in the statute. There is not a single conclusion of law averred; every allegation is of fact, and the whole is a concise, direct and certain- statement of the offense. The defendant is charged with embezzlement. The crime is alleged to have been committed in the first count by loaning money of the State without authority of law; in the second count by unlawfully appropriating the money to his own use. ’ ■
18i__. • The crime of defendant, embezzlement, as alleged in the first count, consisted in loaning, without authority of law, the money of the State — the act of loaning was the criminal act. It was not unlawful because the *623transaction resulted in injury to another person, or because of necessity another must have sustained to defendant the relation of á borrower. Its unlawfulness consisted in the illegal use of the money. The borrower was not injured; he may have, in no way, participated in the unlawful acts and intentions of defendant, for he may have had no knowledge that the law was being violated. He was, therefore, in no way connected with the crime. I know of no legal principle requiring his name to be set out in the indictment.
In my opinion the cases cited by the Chief Justice, in his opinion, fail to support his position that the omission of the name of the borrower is a fatal defect in the indictment. In no pleading, either in civil or criminal cases, is the bare allegation of fraud, without specification of the act charged to be fraudulent, sufficient. The charge of “ making a revolt,” like that of fraud, is but a conclusion from facts.. Each are precisely like the charge in the indictment before us, that the defendant is guilty of embezzlement. But this charge in the indictment is based upon the facts alleged, among which is the averment that defendant unlawfully loaned the money. These remarks dispose of the Pennsylvania cases cited by the Chief Justice.
Whatever is found in U. S. v. Ross, Morris, 164, bearing upon the point in question, was mere dictum. The question was not before the court. But it by no means supports the position it is cited to sustain. A charge of obtaining money under false pretenses is certainly, like that of fraud, a conclusion based upon facts.
In State v. McConkey, 20 Iowa, 574, the name of the party injured, it was held, should be set out in the indictment.
The obvious reason which may be given is that such person is connected with the crime. Without an injury to some one there would have been no offense.
The ruling in Allen v. The State, 32 Iowa, 491, is correct, and, in my judgment, may be supported upon more satisfactory reasons than the one given by the Chief Justice. There can be no offense of selling intoxicating liquors unless there be a buyer; the purchaser is, therefore, connected with the *624Crime. Upon the principle above announced, the indictment should show the purchaser in order to present a complete, statement of the offense. But there may be embezzlement without a borrower of the money embezzled. The crime, it is true, may be perpetrated by loaning the money; but, as we have shown, the borrower in that case may not be connected with the crime. The reasons demanding an averment of the name of the persons purchasing liquors, in an indictment for illegal sales, do not exist in the case of embezzlement to requre that the name of the borrower of embezzled money should be set out. The decision cited is inapplicable to the case before us.
. The reason given by the Chief Justice in support of the doctrine, as I have already intimated, is not sound. It is this: The averment of the name of the purchaser of intoxicating liquors “ is necessary to enable the defendant, if convicted or acquitted, to plead such conviction or acquittal in bar of a subsequent prosecution for the same offense.” The pleas of autrefois aequit or autrefois corwict may be supported by other evidence than that of the record. Certainly this is true as to the identity of the crime.
As I have shown, the essence of the crime of embezzlement is the appropriation of the money. Loaning without authority of law is a manner of appropriation. If the loaning be in separate sums to different persons it does not make more than one act of appropriation. Certainly, these propositions demand no argument for their support. Now, to require an indictment to contain allegations of the persons borrowing the embezzled fund would be to hold that, the manner of the act must be alleged. Surely I will not be required to argue that the manner of the unlawful act need not be alleged in an indictment in order to describe a crime. It is not necesl sary in alleging an assault to aver with which hand, whether right or left, the blows were given, and the number of the blows. In an indictment for larceny it is not required that the, manner in which the defendant obtained possession of the property, whether by stealth, deceit or violence, must ;bé alleged, nor is it,necessary to show whether fhe accused *625bore away the stolen goods upon his own person or used other means of transporting them. Yet it is roundly asserted in the opinion of the Chief Justice that !i the manner in which the money was converted should be alleged.” From this we understand that where conversion alone is charged, it must be shown just what acts were done in the conversion — where defendant placed the money, or under what circumstances he disposed of it. If these averments be necessary, they must be supported by proof. Yet we have held that conversion may be proved by evidence of a demand and refusal to pay. State v. Bryan, 40 Iowa, 379.
No authorities in conflict with these views, after the most patient search, have I been able to discover, but I have found those which, in my judgment, directly support them.
In Wharton’s Precedents of Indictments (see p. 284; etseq.), I find in no case is the manner of the embezzlement alleged,further than the averment of the conversion of the thing embezzled to the use of the accused.
In The State v. Orwig, 24 Iowa, 103, the allegations of the indictment, as set out in the opinion, are, the employment or official character of defendant by which the drafts embezzled were received, his duty to deliver them to the' Treasurer of State, and his unlawful and felonious conversion thereof to his own use. The manner of the conversion is not alleged. No objection was made to the indictment on the ground that the act of conversion was not sufficiently charged.
In The State v. Foster, 11 Iowa, 291, I am authorized to conclude the indictment was in the same form, and no objections were made thereto.
In The State v. Bryan, supra, the indictment is in almost the precise words of the one under consideration. Its charging part is in the following language: “ The said James A. Bryan, on, etc., in the county aforesaid, then and there holding the office of treasurer of said county aforesaid, unlawfully and feloniously did convert to his own use and embezzle $41,604.67, which came into the hands of him, etc., by virtue of his office, etc., contrary to the statute,” etc. No objection was made to the indictment. I am able to call to mind no *626case where the rules announced in the Chief Jnstice’s opinion, which I am now considering, were applied.
I, of course, will not be understood as citing these cases on the ground that the point in question is decided by them. But they are authority to show the opinion of the profession upon the question. Counsel for the respective prisoners are among the ablest of the State, and to suppose that they would either not make the point in this court, or are uninformed as to the law, is to do injustice to them, and through them to the profession generally. The opinion of the profession upon questions of law is not without authority in the courts.
The cases are authority to show the views of this court upon the question. We are required by the statute to examine all points in a case without regard to errors assigned, and render such judgment on the record as the law demands. Code, sec-’ tions 4535,4538. ' '
If this court has heretofore held indictments in the form of the one now before us good, as under this statute we must have done in order to affirm convictions thereon, it argues, either that our views have changed or that we have defectively, heretofore, in such cases performed our duty. Neither position can be admitted.
In Brown v. The State, 18 Ohio St., 496, the accused was indicted under a statute making the conversion of public money, the aiding, advising or participating therein, embezzlement. The indictment charged that the money embezzled belonged to the State, county and several townships, without averring the amounts each was entitled to. The indictment was assailed on the ground that it did not set out the amount belonging to each, but merely the aggregate belonging to all. The court held the indictment good and sufficient to sustain the conviction of the accused.
In The People v. Guerra, 31 Cal., 416, the indictment charged the defendant with embezzling a sum of money the property of the State and county. A demurrer to the indictment on the ground that it charged more than one offense was overruled. The court held that “the act of embezzlement charged was • an undivided or single act, and, consequently, *627the proper mode of stating the offense was according to the fact. The embezzlement set forth in the indictment constituted one 'offense only.” These cases are determined upon the principle that the act of appropriation determines the offense. Certainly if there may be one act of appropriation of several sums owned by different parties, the act of appropriation will be single when the funds all belong to one person and the money is devoted to different purposes by the accused. The manner of defendant’s disposition of the money, to whom and in what sums he loaned it, is simply the manner of his appropriation, if we admit that the appropriation could not take place until the loans were made. Now, as we have seen, the manner of the conversion of the funds to his own use need not be stated in the indictment. The statute makes the loaning of public moneys embezzlement — the loaning is the conversion. The manner and circumstances of the loaning need not be stated as it pertains to the manner of conversion.
It must be remembered that the indictment before us does not charge separate acts of loaning — it is charged - as one act. The question then is, must the circumstances of "this act and the name of the borrower be stated. We cannot under the demurrer presume a state of facts not alleged, viz.: separate acts of loaning, and thereon hold the indictment bad.
I think I have expressed myself at sufficient length to make plain the legal principles upon which I rest my conclusions. I have not attempted to present all the arguments in support thereof that occur to my mind. I am satisfied, however, that further- argument is not necessary, and will forbear to proceed further.
The points assailing the indictment were presented by the learned counsel of the defendant in a simple statement of ten lines of his brief. The Attorney-G-eneral doubtless regarding, as he was authorized, the points as having been made in no great confidence, as they are unsupported by argument and authorities, replied to them in a paragraph of five lines. We have thus been deprived of argument upon the questions. This is to be regretted, as these able counsel never discuss *628before us points of law without throwing upon it all the light that may be had from the books and from thorough argument.
III. While concurring in the conclusions of that part of the 7th point of the opinion of the Chief Justice, which holds that § 4243 of the Revision is not repealed by the prior sections 796, 797, 806 and 807, I am unable to assent to the principles and reasoning upon which it is based. I reach the conclusion without difficulty upon these plain and obvious considerations: The defendant was the Deputy State Treasurerand is charged, in one count of the indictment, witli unlawfully loaning the money of the State. The sections of the Revision last cited provide a penalty or punishment for certain acts done by the State Treasurer. By no possibility can defendant be guilty under these sections. As to the crime with which defendant stands charged, it cannot be pretended that there is any conflict between these provisions and § 4243, and, therefore, as to the indictment in this case, there is no occasion whatever for the construction of the last named section, adopted by the Chief Justice, in order to make it harmonize with the others. I might well forbear to enter into a discussion of this construction. The questions decided are not, in fact, in the case, for the very plain reason that there is no other statute for the punishment of the Deputy State Treasurer than § 4243. The decision of the question in the majority opinion is based upon the assumption of a fact which does not exist. The case, therefore, does not present the points decided. Whatever is found upon the subject in the opinion must be regarded as mere dicta.
Y. But I will state, in a few words, considerations which bring me to the conclusion that, whatever view may be taken of the sections in question — conceding even that the prior provisions apply to the Deputy State Treasurer — there is no conflict between them.
1. Secs. 796, 797 do not provide for criminal proceedings and prescribe no punishment for a crime by indictment. They affix a fine or penalty for the acts forbidden, and do not provide that it shall be enforced by indictment. But they, in express words, provide another proceeding for the *629recovery of the forfeiture imposed. Section 797, in express words, directs that the delinquent State Treasurer shall “ be prosecuted by the Attorney General in the name of the State for the benefit of the common school fund.” Here is a forfeiture imposed, which, clearly, is to be enforced by proceedings other than by indictment. This is not the only instance where fines are to be collected by proceedings in the nature of civil actions. See Rev., Secs. 1992, 2081. The sections in question, by providing a penalty for an act which by other legislation is made a crime, do not repeal such legislation. All that can be said of them is, that they add to the punishment already provided. Certainly, a subsequent statute may increase in severity the punishment of an officer without having the effect of repealing the enactment creating the offense.
2. Sees. 806, 807, make the loaning of the State’ money, by its treasurer, a misdemeanor, and provide for the punishment of that offense. Here, clearly, is the creation of a crime and a punishment provided therefor. In my opinion this legislation does not interfere with, or repeal Sec. 4243, which declares the same act to be felony, and prescribes its punishment.
Nothing is better understood by the profession, than that the same unlawful acts constitute different, distinct crimes, or rather crimes of different degrees, but of the same class. Thus, robbery includes larceny and assault; and an assault with the intent to murder includes assault and battery. In our State these and all other crimes are created by statute. Now it will not be pretended that the statute creating one of these offenses repeals another enactment creating a crime of a different degree, but of the same class. I cannot present the point more clearly or forcibly than by using the language of Mr. Bishop, found in his work upon Statutory Crimes, § 171. He says: “The law may, sometimes does, attach two or more separate penalties or punishments — as a fine or forfeiture, ora fine or imprisonment to the same act, and even authorize them to be enforced in separate prosecutions — a proposition which requires some consideration to determine its precise constitutional limits. In such a case, it. is, of course, no *630objection that- the right to prosecute is derived from statutes passed at different times. And the principle is, that, to a considerable extent, offenses are like successive circles of different sizes inclosed within one another, a robbery, for an example, being an assault committed under particular circumstances of aggravation; and that, in these cases, the offender may -be convicted of either the simple or aggravated form, at the election of the prosecutor; except that, sometimes, the line between felonies and misdemeanors cannot, in this way, be passed. The several .degrees of the same offense have their corresponding degrees of punishment; though when a person has been convicted in one degree, he cannot be convicted in another degree. Therefore, if the new statute adds aggravation not .existing in the old law of the offense, and creates a higher penalty, or omits some aggravating quality and provides a lower penalty; or if the new statute is applicable to a particular class only of persons who owe particular duties in the matter; the new punishment does not supercede the old.” In a preceding section, 169, the same author says: “Several concurrent remedies of a different nature, carrying with them their respective penalties, may be provided for one offense; and each remedy may stand, penalty and all, without conflicting with the other.”
These views and authorities lead me to the conclusion that the statutes in question do not conflict; that each ought to be sustained without any construction limiting or changing the natural force of the language of either. I am not, therefore, required to discuss the correctness of the conclusion in the opinion of the Chief Justice, that the indictment is defective in not charging that - the money loaned was “ unaccounted for” The statute, as I intepret it, is not to be understood in the sense which drove the majority of the court to the conclusion that such an averment is necessary.
But, even should I adopt the view’s .of the Chief Justice, and read the word 11 or ” as “and,” I could not, with him, conclude that it was, therefore, necessary to aver in the indictment that the money embezzled was “unaccounted for.” These-words are not used as a description of the offense, but *631to indicate a rule by which the extent of the offense, the amount of money embezzled, is to be determined and the punishment of defendant therefor to be graduated.
An officer charged with the transfer or disbursement of public money is guilty of embezzling whatever sum, so entrusted to him, that he does not “ account for” — that he fails to show has been disbursed or transferred. The words “ unaccounted for,” refer to and are to be understood in connection with the words “ transfer ” and “ disbursement ” preceding them in the section, just as the words “ converted,”invested,” “ used,” are to be understood as referring to “ convert,” “ use,” “ investment,” found in the preceding part of the section.
It certainly is a strange rule that an indictment averring the defendant used and invested, as his own, money of the State, is bad, because it does not allege that he failed to account for it. Yet this is the rule of the majority opinion. It must be remembered that the words “ unaccounted for ” do not mean unpaid, but simply that no account is rendered for the money with which the officer is charged. If. then, according to the doctrine of the majority opinion, the defaulting officer, who has used as his own the money of the State and is still using it, render an account for it, he is not guilty of embezzlement. This must be so, else why require the indictment to aver that the money is unaccounted for?
By changing the word “ or ” to “ and,” as is done in the majority opinion, the sense and force of the section is not at all changed, for the structure of the provision and the idioms of our language require us to apply the words, thus coupled by the conjunction, to their proper antecedents, as I have above pointed out.
I forbear from further discussion of the subject; what I have said is sufficient to express my own views, and lead the mind of the reader to a course of inquiry that cannot, in my judgment, fail to carry conviction as to the correctness of my conclusions.
In my judgment the doctrines of the majority opinion are in conflict with sound reason and the authorities. Its -rules *632exceed in technical strictness the oldest cases. Their application in this case, as well as in all others, would tend to defeat justice. I am th roughly satisfied that the judgment of the District Court ought to be affirmed.