delivered the opinion of the court.

In this case the indictment contained two counts. They charged a conspiracy between James II. 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 con-, spired to commit substantially as it is set forth in count seventy-seven, and the second count described the offence as the same *193 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 a/nswer in the negative.