self of that license, and in order to change his position the onus lay upon him to prove that he had assumed a different position. There is no evidence that he ever communicated his intention to any one, except to a companion who was travelling with him. I am, therefore, of opinion that this verdict should be entered up for the defendants. MONAHAN, C. J.-I am of the same opinion. It appears from this free pass that this gentleman was permitted to travel from Cork to Monkstown; when he entered the vessel, it must be assumed he was travelling on it; for he never intimated to the company that he was going further. There was no case whatever to go to the jury, and the verdict must be entered for the defendants. CAUSE SHOWN DISALLOWED. Attorney for the plaintiff: Gillman. Power of the Trustees of a Town Corporation to Supreme Court of Missouri, May Term, 1875. Hon. DAVID WAGNER, WM. B. NAPTON, " H. M. VORIES, "" T. A. SHERWOOD, Judges. The trustees of a municipal corporation, incorporated under the general laws of Missouri, and possessing no powers and subject to no liabilities except such as are imposed and conferred by the statute relating to towns and their incorporation (2 Wagn. Stat. 1313), can not render the corporation which they represent liable to pay a debt con- St. 81, and denying Underwood v. Newport Lyceum, 5 B. Mon. 130. ble for the payment of a warrant drawn on the treasurer of the town, having been issued by order of the trustees, to pay a debt contracted by them with a bank-note and engraving company, to engrave and print on bank-note paper, notes payable to bearer, to be put in circulation as money by such trustees in their official capacity. An examination of the statute referred to, will conclusively show that no such powers as those attempted to be exercised in the case at bar, were conferred by law on the trustees. Their act, therefore, in contracting the debt and in issuing the warrant in suit, was wholly unauthorized and illegal. And although a warrant signed by the proper officer prima facie imports validity and a subsisting cause of action (Dillon Municip. Corp., § 411), yet it is always competent for a municipal corporation, as was done in the court below, even after the issuance of a warrant upon its treasury, to set up the defence of ultra vires. Ib., 381, 412, 749; Marsh v. Fulton Co., 10 Wall. 676; Thomas v. Richmond, 12 Wall. 349; Laker v. Brookline, 13 Pick. 343; Clark v. City of Des Moines, 19 Iowa, 199, and cases cited; Brady v. The Mayor, etc., of the City of New York, 20 N. Y. 312. The authorities above cited, as well as others too numerous for citation, assert in all its broadness the above mentioned doctrine, and its applicability to cases of this character. Those who deal with the officers of a corporation must ascertain, at their peril, what they will indeed be conclusively presumed to know, that these public agents are acting strictly within the sphere limited and prescribed by law, and outside of which they are utterly powerless to act. Nothing here asserted has any reference to a certain class of cases, wherein the doctrine of "implied municipal liability" may be succesfully invoked, as is undoubtedly true in some instances, totally dissimilar, however, from the present one. Dillon Municip. Corp., 384, and cases cited. But the plaintiff has urged upon our attention two cases as fully authorizing the recovery which he obtained in the court below; and we will briefly advert to them. The case of Alleghany City v. McClurkan (14 Penn. St. 81), is chiefly based on the proper construction to be placed upon a statute of Pennsylvania, adopted in the year 1828, the first section of which prohibited corporations from issuing contracts or notes of the kind embraced in the action, and the second section imposed a penalty for so doing. But the third section of the act provided expressly that such notes or bills should not be void, and allowed a recovery thereon, with 20 per cent. interest as a penalty from date of issue, so that that case, although employing much loose language, was correctly decided, and affords no support for the position assumed by plaintiffs. The other case upon which he relies, is that of Underwood v. The Newport Lyceum, 5 B. Mon. 130. There it is broadly decided that notwithstanding the corporation was, by the act of 1834, expressly inhibited from the exercise of banking powers, and notwithstanding the officers of the corporation, in the exercise of such powers, would fall under the penal denunciations of the act of 1812, yet that a recovery might be had against the corporation for services rendered in engraving bills, checks and notes, although it might be presumed they were to be used and put into circulation in violation of the law and in furtherance of an illegal purpose. This decision, it must be conceded, is directly in point in favor of plaintiff; but, so far as our researches have extended, it stands citation of adjudicated cases, is certainly at variance with both alone-appears to have been made without any examination or reason and authority, ignoring, as it evidently does, that most salutary doctrine which imperatively forbids the exercise of statutory powers beyond the limits originally assigned them by the leg†The provisions of this statute are too numerous to set out at length. Sec-islative will, and refuses, when the narrow boundary is trantion 2 provides that "the corporate powers and duties of every town so incorporated shall be vested in a board of trustees;" but it is needless to state scended, to lend legal sanction to acts which, on their very face, bear the broad stamp of illegality. that among the enumerated corporate powers, the power to issue bank-notes does not appear.-[ED. C. L. J. Judgment reversed and cause remanded. All concur. Punishment by State Courts of Perjury Committed in the Federal Courts-Habeas Corpus. JOHN T. BROWN, KEEPER OF THE STATE PENITEN- As a general rule, when it appears by a return to a habeas corpus that the prisoner is confined upon a regular charge and commitment for a criminal offence, and especially if he be confined in execution after a conviction, he will be at once returned into custody; and to this cautionary and conservative rule the fourteenth section of the judiciary act of 1789 provided, that the writ should in no case extend to prisoners in jail, unless where they were in United States Circuit Court, Northern District of Georgia, May, custody under or by color of the authority of the United States, or 1875. A citizen of the United States convicted in a state court of a perjury committed in an United States tribunal, and confined in the state penitentiary, may be enlarged therefrom by a federal district judge, under the writ of habeas corpus. This was an appeal from the decision on habeas corpus of Mr. District Judge Erskine, reported in this journal (ante, p. 327). The counsel who argued the case before the district judge argued it on appeal. Opinion by Mr. Justice BRADLEY. AFFIRMED. NOTE. The prisoner was thereupon discharged, but was immediately arrested upon a bench warrant from the United States Court in Savannah, whither he will be sent. were committed for trial before some court of the same, or were necessary to be brought into court to testify. But the general rule does not apply where the order of commitment is made by a tribunal or officer having no jurisdiction to make it; and the proviso of the fourteenth section of the judiciary act has been greatly modified. The benefit of the writ may now be had by prisoners in jail, not only when in custody under authority of the United States; but in 1833, when the nullification proceedings were adopted in South Carolina, it was extended to those in custody for an act done in pursuance of a law of the United States, or of a judgment of any of its courts; in 1842, when the complications Dock Bridges was indicted in the Superior Court of Randolph growing out of the McLeod case, and the Canada rebellion occurcounty, Georgia, for perjury committed October 22, 1874, in an red, it was extended to foreigners acting under the authority and examination before a United States commissioner, under the en- sanction of their own government; and in more recent times it has forcement act. The offence though set out according to its circum- been extended to all persons in custody in violation of the constistances, was charged to have been committed against the laws of tution or a law or treaty of the United States. The present case Georgia; but it was obvious that it was a crime against the laws of belongs to the last category, and is relieved from the impediment the United States only. It was perjury committed in the course of to the use of a habeas corpus, which formerly existed where the a judicial investigation under the acts of Congress, and was an prisoner was committed under state authority; whilst the want of offence against the public justice of the United States. By the re-jurisdiction in the state court removes any impediment arising from vised statutes of the United States, sec. 5,392, every person who the general rule which discountenances its use where the prisoner having taken an oath before a competent tribunal, officer or per- has been regularly convicted and sentenced. son, in any case in which a law of the United States authorizes an The order of discharge must be oath to be administered, wilfully and contrary to said oath, states any material matter which he does not believe to be true, is guilty of perjury, and shall be punished by fine and imprisonment, prescribed by the act, and be thereafter incapable of giving testimony in any court of the United States. Such an offense is exclusively cognizable in the courts of the United States. By sec. 629 of the revised statutes, it is declared that the circuit courts shall have exclusive cognizance of all crimes and offences cognizable under the authority of the United States, except when otherwise provided, and concurrent jurisdiction with the district courts of crimes and offences cognizable therein; and by sec. 711 the jurisdiction vested in the courts of the United States, of all crimes and offences cognizable under the authority of the United States, shall be exclusive of the courts of the several states. The validity of these acts of Congress is not questioned. It would be a manifest incongruity for one sovereignty to punish a person for an offence committed against the laws of another sovereignty. And whilst certain of fences, involving breaches of the peace, counterfeiting the public money, etc., may be violations of both federal and state laws, and punishable under both, perjury in a judicial proceeding is peculiarly an offence against the system of laws under which the court is organized and proceeding. At all events, Congress has declared that the courts of the United States shall have cognizance, exclusive of the state courts, of all crimes and offences cognizable under its authority. Hence it was clearly in violation of the laws of the United States for the state court to try and imprison the defendant for the crime in question. The court had no jurisdiction of the case. The proceedings were null and void. Foreign Selections. LIABILITY OF RAILWAY COMPANIES FOR DAMAGES TO Goods LYING AT RAILWAY STATION AFTER TERMINATION OF JOURNEY.— An important decision upon a question touching the liability of railway companies for damage done to goods lying at a railway station after the termination of the journey, was given in the Queen's Bench, on Saturday last, in the case of Mitchell v. The Lancashire and Yorkshire Railway Company. Mitchell is a manufacturer of felt. There was consigned to him a quantity of tow, which was sent to the defendants to be carried to a station on the defendants' line, and to be delivered there to the plaintiff. The tow arrived at the station safely. On the following day an advice note was sent to the plaintiff, stating that the goods had reached the station, that the defendants waited instructions, and that meantime they held the goods, not as common carriers, but as warehousemen, at the owner's sole risk, and subject to warehouse charges. The plaintiff took away a small portion of the tow, but as the quality did not please him he would not accept the rest. Thereupon the defendants stacked the remainder on their premises in the open air, and covered it with a tarpaulin. The tow was damaged by wet and dirt. The plaintiffs having brought an action to recover the amount of damage, obtained a verdict which has been upheld by the Court of Queen's Bench, although it was It is contended, however, that where a defendant has been reg-contended for the defendants that the company was protected ularly indicted, tried and convicted in a state court, his only remedy is to carry the judgment to the court of last resort, and thence from liability for the loss by the terms of the advice note above by writ of error to the Supreme Court of the United States, and referred to, inasmuch as it gave to the plaintiff notice that the goods were held at his Isole risk." It will be noticed this conthat it is too late for a habeas corpus to issue from a federal court in such a case. This might be so if the proceeding in the state tention assumes that the company had occupied a threefold relation to the goods. In the first place they had been common carcourt were merely erroneous; but where it is void for want of ju-riers, and therefore insurers of the goods; in the second place risdiction, habeas corpus will lie. Exparte Lange, 18 Wall. 163. they were bailees of the goods, with the ordinary duties of bailees; a man entered into a bond not to marry anyone except the obligee, and the bond was held void as against marriage generally, Mr. Justice Aston, not confining his words to the case of women, remarked that there is a difference between a first and second marriage. "The restraint of a first marriage is contrary to the general policy of the law, to public good and the interests of society; but the frequent customs of copyholds intimate that the restraint of a second is not so." Moreover, the freebench of a widower in gavelkind lands ceases on his second marriage. We do not think, therefore, that either authority or analogy supports the decision of the vice-chancellor.-[ The Law Times. and in the third place it was assumed that they were bailees without responsibility by reason of the advice sent to the plaintff. The real question before the court was the effect of the note of advice upon the defendants' liability. Did it free the defendants from all responsibility? To hold that it did do so, would be practically giving to all railway companies an easy method of avoiding all risk under similar circumstances. But clearly such a contention is not only inequitable, but in the strictest sense of the term, illegal. There are well defined duties attaching to all contractual relations. When a man is in the position of a common carrier there are incumbent upon him all the duties recognized by the law as attaching to that position; when, again, a man is a warehouseman, ex vi termini, he is clothed with the obligations recognized by law as belonging to that position, and so through all the gradations of contractural relations. If, then, one in either of THE BRIGHAM YOUNG DIVORCE CASE-AN OUTSIDE VIEW OF THE these positions should limit his responsibility by any formal notice, he must make his meaning very clearly understood. Mr. Justice Blackburn says, in the present case, "the whole of the advice note must be looked at in order to determine its meaning, and that according to its terms, appears to be that the company intended to hold the goods as warehousemen, and subject to warehouse charges. These terms must be construed reasonably." It certainly would not be considered a reasonable construction to suppose that the company were to receive the benefit of all the charges, and incur no liability in respect of the goods.—[The Law Times. Correspondence. MATTER. his life, would be dispensing equity with a vengeance. Ann Eliza was trained in this belief by the very man she afterwards married; our government has tacitly sanctioned the "institution," by permitting the Mormon delegate to sit in the halls of Congress and proclaim his doctrine to the country, and now shall the High Priest be backed in his refusal to do justice to one of his victims, merely because he dodges behind a technicality that he avowedly despises ? Certainly not. If their delegate is allowed to attend to their wants in the national congress, with the same propriety may not justice and equity be extended to them as between each other by the national courts ? DENNISON, TEXAS, May 27, 1875. Kean's conduct as a judge in Utah was not unmixed with passion EDITORS CENTRAL LAW JOURNAL:-That Chief Justice Mcand bias, can scarcely be denied. But as a matter of equity, can Brigham Young plead his own wrong, and take advantage of it, to defeat the allowance of alimony, pendente lite or otherwise? If he inveigled Ann Eliza into a polygamous marriage, is he not morally bound for her support? Should he be heard to say, “I married you according to the manner of our peculiar institution, but now I deny that you have any right to share my purse?" Is wife CONDITIONS IN RESTRAINT OF MARRIAGE.—It seems strange No. 1 less guilty than the rest, if the first marriage was entered that the question, whether a gift to a man in which there is a con- into with the polygamous intent to inaugurate the prevailing sysdition in restraint of a second marriage, is void or not, should tem? The fact that she was first to catch the great apostle of polynot have been long ago decided. The question came recently be- gamy should have but little bearing upon the case. To grant her fore Vice-Chancellor Hall (W. N., April 17), who decided against alimony under like circumstances, and yet deny it to the other dethe validity of the restraint, but, as it seems to us, without author-luded victims of an institution to which Brigham has dedicated ity. Frances Jackson, by her will, after bequeathing a legacy to her niece, E. A., the wife of R. N. Jackson, directed her trustees to pay the remaining income of her property to the said R. N. Jackson and his wife, for their joint lives, and to the survivor for life. The testatrix declared that if the husband should survive the wife and marry again, the trustees were to hold the property upon other trusts thereinafter mentioned. The husband did marry again, and claimed, notwithstanding, to enjoy the income of the property; and the vice-chancellor held that, having regard to the authorities, his interest had not ceased. We are unable to find any authority for the vice-chancellor's statement. In the notes to Scott v. Tyler, in 2 White and Tudor's Lead. Cas. 216, it is stated that the validity of a condition defeating a gift to a man on his second marriage does not appear to have been decided. But the case there referred to (Evans v Rosser, 2 H. & M. 190), is adverse to the present decision of the vice-chancellor. The bequest was to a testator's son-in-law, "during the term of his natural life or marriage again," with a gift over, "after the decease or marriage" of the son-in-law. Lord Hatherly, then vice-chancellor, held the gift to have been forfeited on the son-in-law's marriage, for the reason, a very artificial, one as we think, that the gift was one for life or until marriage (the vice-chancellor had to insert the word "until" to support this construction), and not a condition in defeasance of a prior gift. The validity of a restraint on a widow's marriage, which for a long time was supposed to extend only to a testator's widow, was extended by Vice-Chancellor Page Wood in Newton v. Marsden (2 J. & H. 356), to all widows. A testator was naturally supposed to have an interest in his wife's widowhood, especially if there were children; and in Newton v. Marsden the testator had put himself in loco parentis to the children of the marriage. But we can not see why a woman should not have the same interest in her husband's remaining unmarried, in view of the possible unkindness of a stepmother, and why on the analogy of Newton v. Marsden, the rule should not be extended to any widower. In the early case of Lowe v. Peers (4 Burr. 2225), where It might be "strange" to award the alimony, but it is stranger still for a court of conscience to rebuke a woman who asks bread at the hands of the hardened sage who wrought her delusion and ruin. She has been the cats-paw, and let the monkey soothe her pangs with a few money-plasters. The best way to foster and encourage the cause of the "Latter-day Saints" is to shield their pockets while their practices are at the same time tolerated. Is not this being done? It is a poor rule that won't work both ways, and if Brigham is so anxious to live by his doctrine, let him also fall by it, like a man and a true saint. An honest martyr never bridged his difficulties with a hateful technicality. Respectfully, M. The Missouri Constitutional Convention. Our record of the proceedings of this body closed last week with the convention debating the 12th section of the bill of rights. As near as we can sections constitute the remaining portion of the bill of rights, as adopted: gather, by comparing the imperfect reports of the daily press, the following 12. No person shall for a felony be proceeded against criminally, otherwise than by indictment; in all other cases offences shall be prosecuted criminally by indictment or information as concurrent remedies; provided that all cases arising in the land or naval forces, or in the militia in time of war or public danger, may be prosecuted by indictment or informaion, 13. That treason against the state can consist only in levying war against it, or in adhering to its enemies, giving them aid and comfort; that no person can be convicted of treason unless on the testimony of two witnesses to the same overt act, or on his own confession in open court; that no person can be attainted of treason or felony by the general assembly; that no conviction can work corruption of blood or forfeiture of estate, but the estate of such persons as may destroy their own lives shall descend and vest as in cases of natural death, and when any person shall be killed by casualty there shall be no forfeiture by reason thereof. 14. That no law be passed impairing the freedom of speech; that every person shall be free to say, write or publish whatever he will on any subject, being responsible for all abuse of that liberty; and that in all suits and prosecutions for libel, the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact. 15. That no ex post facto law, nor law impairing the obligations of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be passed by the general assembly. 16. That imprisonment for debt shall not be allowed, except for the nonpayment of fines and penalties imposed for violations of law. 18. That the right of no citizen to keep and bear arms in defence of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question, but nothing herein contained is intended to justify the practice of wearing concealed weapons. 19. That no person elected or appointed to any office or employment of trust or profit under the laws of Missouri, or any ordinance of any munici pality in this state, shall hold such office without personally devoting his time to the performance of the duties of the same. 20. That no person can be eligible to any office of trust or profit till he shall have accounted for and paid over all public money for which he may be accountable. 21. No person who shall hereafter be adjudged guilty of embezzling any money, belonging to whomsoever, or of appropriating to his own use, or that of another, any money or other property received by him in trust or confidence from another as distinguished from a debt, or arising out of the casualties of Adams filed his bill to forclose a mortgage on certain premises, given to secure the purchase money thereof; Fitzpatrick the mortgagor, and Ray, a judgment-creditor of Fitzpatrick, were made parties defendant. Ray, by cross bill, admitted the superior lien of the mortgage; but contended that prior thereto his execution had been levied on the mortgage premises; that Fitzpatrick claimed a portion of it as a homestead and exempt from levy; and the remainder thereof had been sold under his execution, and bought in by him, and he claimed both as judgment-creditor and purchaser under the execution, and he insisted that the assets should be so marshaled that Fitzpatrick's part (the homestead) should be sold first-it being Fitzpatrick's debt. The cross bill was dismissed by the court below, and Ray appealed from the decree. BY THE COURT-Saffold, J.-The point at issue is: Which is the superior right, the debtor's claim to the exemption of his homestead, or that of his creditor to the payment of his judgment? Notwithstanding Adams by his contract had a lien which excluded Fitzpatrick's privilege of exemption against him, and between him and Ray, he might have been required to sell the land in parcels, so as to preserve the came in next to the contract-lien. It was prior to the lien of the judgment, and even if not, would have prevailed over it. Watson v. Simpson, 5 Ala. rights of the subsequent creditor; yet the right of exemption ordinary trade or business, shall be eligible to any office of trust or profit 233; Hale v. Cummings, 3 Ala. 398; Lamar v. Gunter, 39 Ala. 324; Rev. under the laws of this state, or the ordinances of any municipality thereof, until he shall have made good any such defalcation. 22. That no private property can be taken for private use, with or without compensation, unless by the consent of the owner, except for private ways of necessity as may be prescribed by law, and that whenever an attempt is made to take private property for any use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and as such judicial question determined without regard to any legislative assertion that the use is public. Code, 2880, 2884. If a judgment-creditor may put his debtor to the selection of his homestead, and sell a portion of his property not protected by it, and then require a mortgagee of the whole to apply the homestead first to the satisfaction of the mortgage, he would deprive the debtor of his homestead, which he could not do if there was no mortgage. How can the mortgagee thus enlarge his remedy? The decree is affirmed. Note.-Assets will not be so marshaled as to injure the common debtor.Willard's Eq. Jur 338 (Ed. 1863); Story's Eq. Jur. ? 560. United States. 23. That private property shall not be taken or damaged, for public use. without just compensation, and the compensation shall be the fair value, in Abstracts of Opinions of the Supreme Court of the money, of the property taken. Such compensation shall be ascertained by a jury, in such manner as may be prescribed by law; and until the same shall be paid to the owner, or into court for such owner, the property shall not be disturbed, or the proprietary rights therein be divested. 24. In all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel, to demand the ground and cause of the accusation, to meet the witnesses against him face to face, to have process to compel the attendance of witnesses in his behalf, and a speedy and public trial by an impartial jury of the county. [Prepared expressly for this journal, by HENRY A. CHANEY, ESQ., of Detroit, Mich.] Jurisdiction of Probate Courts.-Perris v. Higley, opinion by Miller, J. 1. The act of Congress organizing the territory of Utah (9 U. S. Stat. 453), stands as the constitution or fundamental law of the territory, establishing a complete system of local government, creating the courts, and distributing the judicial power among them. It gives to the district and supreme 25. That no person shall be compelled to testify against himself in a crim-courts jurisdiction at common law and in chancery, and provides for a review inal cause, nor shall any person, after being once acquitted, be again for the same offence, put in jeopardy of life or liberty; but if the jury, to which the question of guilt or innocence is submitted, fail to render a verdict, the court before which the trial is had, may, in its discretion, discharge the jury and commit or bail the prisoner for trial at the next term of court, or, if the state of business will permit, at the same term; and if judgment be arrested after a verdict of guilty on a defective indictment, or if judgment on a verdict of guilty be reversed for error in law, nothing herein contained shall prevent a new trial of the prisoner on a proper indictment, or according to correct principles of law. of their decisions, but does not provide for any review of the decisions of the probate courts. 2. The judicial power of probate courts in this country is to be determined from their general nature and jurisdiction as known in the history of the English law and in the jurisprudence of the United States. Their almost uniform purpose has been the establishment of wills and the administration of estates, to which is occasionally added the guardianship of infants and the control of their property, the allotment of dower, and perhaps other similar subjects. Their mode of proceeding is not governed by the rules of the common law. 3. A statute of the territorial legislature giving to probate courts original, civil and criminal jurisdiction in chancery and at common 26. That all persons shall be bailable by sufficient sureties, except for cap- | law, and declaring that their practice shall be governed by the same general ital offences, when the proof is evident or the presumption great. regulations as is that of the district courts, is void, it being inconsistent with 27. That excessive bail shall not be required, nor excessive fines imposed, the general history of our jurisprudence and with the spirit of the organic act nor cruel and unusual punishments inflicted. 28. That the privileges of habeas corpus shall never be suspended. 29. That the military shall always be in strict subordination to the civil power; that no soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, except in the manner prescribed by law. in defining the courts of the territory, distributing the judicial power among them, and conferring upon the supreme and district courts, general chancery and common law jurisdiction, and inconsistent also with the nature and purposes of a probate court as authorized by the act of Congress. It would also leave the federal and territorial courts with the same jurisdiction, in which case the power of the former might be obstructed or evaded at the pleasure of the latter. Lockrene v. Martin, McCahon's Rep. 60; Dewey v. Dyer, Id. 77; Graham v. Kelly, 1 Kansas, 116; People v. DuRell, 1 Idaho, 30; Moore v. Kenby, Id. 55. Patentable Combinations.-Dane v. Chicago Manufacturing Company, opinion by Bradley, J. A new combination of which all the parts have been used before, may be patented if it produces new and useful results, and not a mere aggregation of results. But when the combinations, as well as their separate elements, have been anticipated, the invention is not patentable, even though more conveniently adaptable than its predecessors to the purpose for which it is intended. Equitable Relief for Fraud.-Monger v. Shirley, opinion by Swayne, J. Shirley was a rebel sympathizer who went from Tennessee to Georgia early in the war. Some time after he had gone, according to Monger's story, a man calling himself John W. Westmoreland, came through the Union lines to Shirley's old home, and sold to Monger, for its face in confederate paper, there passing for ten cents on the dollar, a promissory note which purported The case differs from that of a conveyance, subject to a condition subsequent, which being broken, re-entry or a claim of title for condition broken is necessary to enable the vendor to restore to himself the title to the estate. In that case, the legal title having passed out of him, some measures are necessary to restore it. In this, no legal title passes, and whatever puts an end to the vendee's equitable interest, as notice, agreement of the parties, surrender or abandonment, places the vendor where he was before the contract was made. 3. No mode of terminating an equitable interest, is more perfect than a vol untary relinquishment by the vendee, of all rights under the contract, and a voluntary surrender of the possession to the vendor. Military Law-Leave of Absence-Pay.-United States v. Capt. Williamson, opinion by Hunt, J. 1. An army officer absent from duty “with leave," can go where he will during the permitted absence, employ his leisure as he pleases, and surrender his leave if he chooses. All that can be required of him is to report himself at the expiration of his leave. 2. An officer directed to proceed to a place specified, there to await orders, must go to that place and remain there, and is as much under orders as if he were in the field. 3. The regulation of the pay of army officers belongs to the legislative department of the government, and neither the executive department, nor any branch of it, can reduce the wages fixed by congress. Replevin-Liability on the Bond-Practice, where the Judgment Appealed from is not in the Record.-Sweeney et al. v. Lomme, opinion by Miller, J. (The following are also Justice Miller's head notes): I. In a suit on a replevin bond given to the sheriff, where the question whether the proper party to sue is the sheriff, or the party for whose benefit the bond was given, depends upon the code of practice of Montana territory, this court will not reverse the decision of the supreme court of that territorty, on the construction of their code, 2. In a suit on a replevin bond, the defendants can not avail themselves of the failure of the court to render in the replevin suit the alternative judgment for the return of the property or for its value, even if that were an error for which that judgment might be reversed. 3. If a return be awarded in the replevin suit, the surety is liable on the condition of the bond to return, and this without execution or other demand for its return. The judgment establishes th: liability. 4. Nor is this liability to be measured in this action by the value of the interest in the property of the at to have been executed to Westmoreland by Shirley, and was then underdue. Judgment was rendered against Shirley, on this note by default, and his Tennessee farm was sold to Monger under the judgment. Evidence indicates that the note was a forgery, to which Westmoreland, if there was any such man, was a party. Monger also bought the life estate in the premises in certain confiscation proceedings, but before the sale was confirmed, he intervened and represented that before the libel of imformation was filed against them, he had attached the premises, and that his lien was prior and paramount to that of the government. The court below decreed that the money he had paid, less the costs, be refunded to him, and that the United States Marshal execute to him a deed for the life estate, at the same time enjoining him perpetually from asserting.the title. 1. The power of a court of equity to annul judgments and decrees, and all titles acquired under them, for fraud, where the rights of bona fide purchasers have not intervened, is well settled. Freeman on Judgments, ?? 486, 489-91; 1 Story Eq. 252. 2. By the order below, the proceedings in behalf of the United States were used to convey a title, for which the government received nothing, to Monger, who paid nothing for it. If the attention of the court had been called to the error in the entry, it would doubtless have been corrected. Fay v. Wenzel, 8 Cush. 315. And even if the marshal's deed did pass the legal title to the life estate, Mon-tachment debtor, for whose debt it was seized by the sheriff. The value of ger must be held, under the circumstances, to have taken it, as he took his title under the attachment proceedings, in trust-ex maleficio-for Shirley, and subject to all his equities. A title so acquired must not defeat the rights of the owner of the land, and confirm the iniquity practiced on him. the property at the time it was replevined, limited by the debt still due on the attaching creditor's judgment, and the penalty of the replevin bond, are the elements of ascertaining the damages in the suit on that bond. 5, When it appears for the first time in the argument of a cause that the judgment appealed from is not in the record, the court of its own motion, may allow plain tiff in error certiorari, and time to produce a certified copy of it. Peters v. Sale of Real Estate by Contract Equitable Interest Terminated by Abandonment.-Jennisons v. Leonard's Executors, opinion by Hunt, J. Leonard was the surviving partner of the Beldon Lumber ComNavigation-Collisions-Vessels Meeting "end on."pany, which had contracted to sell to one Cole a tract of timber land, upon Schooner Dexter, opinion by Clifford, J, 1. The precautions prescribed by certain terms of payment, yearly. Cole agreed to remove at least 3,000,000 Congress for the prevention of collisions, are obligatory whenever they apply, feet of timber each year, and to make monthly payments of $3 a thousand e. g. if two sailing ships are meeting end on, the helms of both must be put to for every thousand feet cut and removed. If the monthly payments fell short port. 13 Stat. at L. 60. 2. Although the rules of navigation require sufof the annual payment, he was to make up the deficiency. Cole executed to ficient lookouts, yet where it appears that the officer in charge of the deck the Jennisons, a bill of sale of 1,000,000 feet of the logs cut on the premises, saw the approaching vessel, yet so distant that no precaution to avoid a coltogether with three chattel mortgages thereon, as security for advances they lision had become necessary, and also appears that the want of a lookout did had made to him. Not being paid the amounts thus secured, the Jennisons not, and could not have contributed to the collision, the vessel omitting such went on the lands, took possession of the timber theretofore cut by Cole, and a proper precaution, will not be held responsible for the consequences of the began to remove it. They subsequently recognized Leonard's interest in this disaster, if, in all other respects, she is without fault. Farragut, 10 Wall. 337. property, and undertook to pay what was due on the contract to Leonard, 3. Sailing-ships are meeting end on, within the meaning of the eleventh sailand what should become due so long as they operated under said chatteling rule prescribed by Congress, when they are approaching each other from mortgage. But within two months a dispute rose as to the amount due, the opposite directions, or on such parallel lines as involves risk of collision on Jennisons refused to "operate" further, abandoned the land, and removed no account of their proximity, and when the vessels have advanced so near to more timber. Leonard then entered into possession of the land for the aleach other, that the necessity for precaution to prevent such a disaster begins. leged breach of contract by non-payment, and took all the down timber not The time of this necessity can not be definitely defined, as it must always deremoved, which he transported to a saw mill, cut into lumber and loaded upon vessels to send to Chicago, where the Jenninsons seized, sold and converted it to their own use, claiming that the logs from which it was manufactured were theirs by virtue of the mortgages to them from Cole. Leonard's executors brought action for this taking, and recovered judgment, which is now affirmed. The only question was whether the facts are sufficient to support the judgment. 1. The facts set forth will not support the theory of a tenancy at will, nor of a lease, there being neither lessor, lessee, nor subject of demise the exhaustion of the supposed demise, i. e. the timber, leaving no reversion worth taking. 2. This was one of the sales of real estate by contract, in which the title remains in the vendor, and the possession passes to the vendee in whom an equitable interest vests, to the extent of his payments, and who, when he has obtained a full equitable title, may compel a conveyance of the legal title by the vendor, his heirs or assigns. The vendor is trustee for the vendee, for the use of the legal title, to the extent of the latter's payment. pend somewhat upon the speed of the respective vessels, and the circum stances of the occasion. The Nichols, 7 Wall, 664. Title by Execution Sale-Pact De Non Alienando.-Watson v. Bondurant, opinion by Bradley, J. 1. In Louisiana, an execution sale of tangible property fails to transfer title, unless the property has been actually seized by the sheriff. As to the application of this doctrine to personal chattels or securities, see Simpson v. Allain, 7 Rob. 504; Flutner v. Bullard, 2 Ann. 338; Offal v. Monquil, 2 Ann. 785; Taylor v. Stone, Id. 819; Gaines v. Merchants' Bank, 4 Ann. 370. For its application to lands, see Corse v. Stafford, 24 La. Ann. 263; Williams v. Clark, 11 La. Ann. 761, also 12 Ann. 275; 19 Ann. 58; 23 Ann. 512. Actions of nullity have been sustained on this ground. Kilbourne v. Frellsen, 22 Ann, 207. It is not understood to be necessary to a valid seizure, that the person in possession should be turned out, but something more than a mere constructive taking is required |