person and the operator another. The legis- Eyre v. When an automobile has been registered under said act I am unable to see how issuing a license to the owner affords any additional protection to the public. Eyre v. Burmester, 10 H. L. Cas.. 90. In either case it is held that the grantor should be preferred. A conclusive answer to the prior equitable claimant is that the grantor, although he is the subsequent obligee, has in fact the prior interest in the very property, which here also should not be displaced by a claim which has no greater merit. Before the accrual of the first obligation, the subsequent obligee had not ony the beneficial, but also the legal interest in the property. The only diminution of that interest has been a conveyance, but a conveyance in its inception merely of the bare legal title with a retention of the beneficial in And now, February 8, 1904, the rule granted to show cause why the judgment in above case should not be arrested is dis-terest, in the one case, by the express argreecharged. For rule, Rilling & Fish. ment, in the other, on account of the fraud. If the obligor were claiming for his own District attorney, for commonwealth. M. benefit, the conflicting right of his grantor L. Davis. Conflicting Equitable Claims to the Same Res. When a person is subject to two equally meritorious equitable claims for the same property owned or subsequently acquired by him, the claim prior in point of time is preferred; Cory v. Eyre, 1 De G., J. & S. 149. Since both are equally meritorious with the sole difference that the prior, when it arose, immediately attached to the property as an equity, or, if the property was not yet acquired, gave an inchoate right to control the property when it should be acquired, a subsequent claim without greater merit should not displace the already existing equitable right. A recent New Jersey case, where the subsequent claim arose out of the very acquisition of the property by the obligor, opens the discussion of a more troublesome question. One Wood, under a duty to a corporation to pay the price of land out of his own substance, bought the land under an option which he held in trust for that corporation, and paid for it, in breach of trust, with part of a fund he held in trust for a third person. It was held that the third party, as against the corporation, had no rights in the land; Seacoast R. Co. v. Wood, 56 Atl. Rep. 337. The cases on the point that have arisen are principally cases in which a person under a prior equity to convey property which he did not own, either received a conveyance from the owner to hold on an express trust, Kelley v. Jenness, 50 Me. 455, or induced a conveyance from the owner by fraud; would be absolute; Tyler v. Black, 13 How. (U. S.) 230. It follows that the equitable claim of the prior obligee can be no greater, since his only equitable right is to the property of his obligor, and by the analysis the obligor has only a title subect to an existing equity. If It is submitted that these cases apply with effective force in the solution of the principal case. When Wood wrongfully used the trust fund to discharge his obligation to pay the purchase price to the vendor, it was as if he had requested a stranger to discharge that obligation. On familiar principles, the stranger would be subrogated to the right of Woods's vendor to hold the land as security for the payment of the purchase price; Faulk v. Calloway, 123 Ala. 325. the cestui que trust at Wood's request had authorized the use of the trust fund for the same purpose, there can be no doubt that the court of equity would allow him the same right of subrogation, as having substantially discharged Wood's obligation at the latter's request. See Bigelow v. Scott, 135 Ala. 236. Since, by the misappropriation of the trust fund for the same purpose, Wood compelled the discharge of the obligation by the cestui que trust, by a parity of reasoning the same result must follow. The land came, therefor, into the hand of Wood charged with the equity of subrogation in favor of the injured cestui que trust, and on the principle of the previous cases the claim of the corporation should have been postponed. The New Jersey decision, in reaching the contrary conclusion, is therefore deemed erroneous.—Harvard Law Review. on December 16, 1903, in the said court of oyer and terminer; which indictment charges these petitioners in the first count thereof with the murder of one William H. Crowley, and, in the second count thereof, with the manslaughter of said Crowley, on September 10, 1903. The petitioners had been at large on recognizance in the sum of $5,000 taken by the court of oyer and terminer con Circuit Court, United States, ditioned for their appearance in that court WESTERN DISTRICT OF PENN' A. to answer the indictment. With the consent of the petitioners, and by pre-arrangement with their bail, they were surrendered UNITED STATES, ex rel. v. ED-by their bail on the 8th day of February, 1904, WARD LEWIS, Warden. dictment found in the State court for the murder of C, a citizen of the State, by shooting, which occurred outside the arsenal property. C, being suspected of the larceny of some pieces of copper taken off one of the arsenal buildings, had been pursued. There was a serious conflict of evidence upon the question whether C was shot while fleeing to escape arrest or after he had stopped and turned around and offered to sur for the purpose of enabling them to apply for and prosecute this writ of habeas corpus. Officers and soldiers of United States ArmyThe case disclosed by the evidence subIndictment by State court for murder-When mitted on the hearing of this writ is as folwrit of habeas corpus will be discharged. lows: On September 10, 1903, Ralph W. Upon the hearing of a writ of habeas corpus issued Drury was a commissioned officer of the by the United States Circuit Court it appeared United States Army, of the rank of second that the petitioners--one of them a second lieu-lieutenant, and had under his command a tenant, the other a private belonging to 2 detach-detachment of twenty enlisted men, of whom ment of United States soldiers stationed at Alle- John Dowd was one, stationed at Allegheny gheny Arsenal in the city of Pittsburgh, Pa.— Arsenal in the city of Pittsburgh, in Allewere held by the State authorities under an ingheny county, Pennsylvania-this arsenal being a sub-post of Fort Niagara, New York. From time to time before September 10, 1903, some copper down-spouts and evetroughs had been stripped from some of the buildings on the arsenal grounds and the material stolen, and other depredations, such as the breaking of window lights, had been committed on the arsenal property. Lieut. Col. Roberston, the commanding officer at tion of Allegheny Arsenal in July, 1903, had Fort Niagara, on the occasion of an inspecdirected Lieut. Drury to use his best endeavors to stop the depredations, and to that end ordered him to establish a patrol of the guards day and night upon the arsenal grounds and to apprehend and arrest any person or persons committing depredations on the arsenal property. Shortly before ten o'clock on the morning of September 10, 1903, having received word that some persons were render. Held, that the United States Court should not in terfere to prevent the trial of the petitioners upon the indictment in the State court. No. 1 May T., 1904. Sur writ of habeas corpus. Opinion by ACHESON, C. J. Filed April 28, 1904. On the 8th day of February, 1904, the date of the issuing of this writ of habeas corpus and at the time the writ issued, the petitioners, Ralph W. Drury and John Dowd, were in the custody of Edward Lewis, war-stealing copper from one of the buildings on den of the jail of Allegheny county, Pennsylvania, by virtue of a commitment issued on that day out of the court of oyer and terminer for the county of Allegheny and Commonwealth of Pennsylvania. This commitment was based on an indictment found the arsenal grounds, Lieut. Drury took John Dowd, then on guard duty, and another private soldier (each of the latter being armed with a rifle and ammunition) and, passing out of the arsenal grounds through the gate on Butler street, the three proceeded by way of Butler street and Almond alley shot was fired Crowley stopped, turned around toward the Allegheny Valley Railroad. facing the pursuing soldier (Dowd), threw Drury informed the two men of the reported up his hand, said "don't shoot," "I will stealing of copper and instructed them to come back," come back," or "I will give up," and just continue down Almond alley and arrest any then Lieut. Drury said "fire," and Dowd person coming from the arsenal. Drury fired the shot that killed Crowley. The himself left Almond alley at the corner of testimony of at least one other witness tends Willow street and went by Willow street to to corroborate the account of the transaction Fortieth street (which runs along but outside given by the two named women as above reof the arsenal wall) and proceeded down cited. It is not for me to say whether or Fortieth street to its foot where were con- not the witnesses who have testified thus on gregated three or four half-grown boys or the part of the Commonwealth are mistaken. young men, among whom was William H. In view of all the evidence herein should Crowley, aged about 19 or 20 years. These this court interfere to prevent the trial of persons fled in different directions when the petitioners upon the indictment in the they saw Lieut. Drury approaching. Crow-state court-take the petitioners out of the ley ran from the foot of Fortieth street away from the arsenal property in the direction of Forty-first street, keeping on or near the Allegheny Valley Railroad. When he was about one hundred yards from the arsenal wall, Crowley was shot by Dowd, who aimed and fired his rifle at Crowley. At the time of the shooting, Drury, Dowd and Crowley were all off the ground belonging to the United States. Each one of the three then stood either upon a street of the city, on the Allegheny Valley Railroad or on private property. The rifle ball struck Crowley's left thigh inflicting a mortal wound, from which he died on the evening of the same day-September 10, 1903. Thus far the facts are not open to dispute under the testimony. But as to the circumstances attending the shooting of Crowley the evidence is conflicting and leads to opposite conclusions of fact as one or other version of the affair given by the witnesses is accepted. Dowd testifies, and the petitioners have produced other evidence tending to show, that as Crowley fled he was called on several times by Dowd, who followed him, to halt, with warning that unless he halted Dowd would fire; that Crowley did not halt but continued his flight, and to prevent his escape behind or through a lumber pile Dowd fired, and that Drury did not order Dowd to fire and was not connected with the shooting save by the fact that he ordered the arrest of any person coming from the arsenal. On the other hand, two witnesses who were present (Mrs. Long and Miss. Terwillerger) testified that before the custody of the authorities of the state and discharge them finally without trial by any civil court in the regular administration of justice? This is the question which confronts me. Undoubtedly a court or judge of the United States is authorized to grant a writ of habeas corpus for the purpose of inquiring into the cause of the restraint of the liberty of any prisoner held in custody under the authority of a state, whether by virtue of an indictment or otherwise, whenever it is in due form alleged that he is in custody for an act done or omitted in pursuance of a law of the United States, or is in custody in violation of the Constitution or of a law or treaty of the United States, and to proceed in a summary way to determine the facts "and thereupon to dispose of the party as law and justice require." But in the exercise of this authority the courts and judges of the United States are to be governed by the principles laid down by the Supreme Court in the cases of ex parte Royall, 117 U. S. 241; Whitten v. Tomlinson, 160 U. S. 231; and Baker v. Grice, 169 U. S. 284. The doctrine of those cases is that except in instances of peculiar urgency or where there is no jurisdiction in the state court to try the prisoner for the offense charged (as were the cases In re Neagle, 135 U. S. 1; In re Waite, 81 Fed. Rep. 359, and Ohio v. Thomas, 173 U. S. 276) the court or judge should not discharge the prisoner in advance of his trial in the state court, and even after the final determination of the case in the state courts should generally leave him to his remedy by writ of As the primary question here is whether the petitioners are amenable to the state court upon the indictment found therein, it is proper to quote at length one of the articles for the government of the armies of. the United States prescribed by Section 1342 | of the Revised Statutes of the United States, viz.: error from the Supreme Court of the United territorial jurisdiction of the state court in States. which the indictment is pending-the only civil court which could have jurisdiction to try the petitioners for the alleged unlawful killing of Crowley. The shooting was not done in obedience to a command to fire given to Drury and Dowd by their superior officer. It will be remembered that the shooting which Dowd did and Drury is alleged to have directed was, according to the testimony for the Commonwealth, of a man who had ceased flight and offered to surrender. It may be conceded that it was the right and duty of the petitioners to pursue and arrest Crowley who was suspected (justly it now seems) of being concerned in the larceny of some pieces of copper taken off one of the "Art. 59. When any officer or soldier is accused of a capital crime, or of any offense against the person or property of any citizen of any of the United States, which is punishable by the laws of the land, the commanding officer, and the officers of the regiment, troops, battery, company, or detachment, to which the person so accused belongs, are re-arsenal buildings, but it by no means follows quired, except in time of war, upon application duly made by or in behalf of the party injured, to use their utmost endeavors to deliver him over to the civil magistrate, and to aid the officers of justice in apprehending and securing him in order to bring him to trial. If, upon such application, any officer refuses or wilfully neglects, except in time of war, to deliver over such accused person to the civil magistrates, or to aid the officers of justice in apprehending him, he shall be dismissed from the service." This enactment is a distinct recognition by Congress of the general jurisdiction in time of peace of the civil courts of a state over persons in the military service of the United States who are accused of a capital crime, or of any offense against the person of a citizen, committed within such state. Such criminal jurisdiction has always been exercised by the state courts. Coleman v. Tennessee, 97 U. S. 509, 514. Clearly the indictment against the petitioners presents a case prima facie cognizable by the state court. Does the evidence disclose any ground to defeat that jurisdiction, or show a case requiring interference by this court to prevent the trial of the petitioners upon the indictment? I feel constrained to answer negatively. The shooting of Crowley did not take place upon the land purchased by the United States for military purposes by consent of the legislature of the Commonwealth of Pennsylvania but outside the arsenal property. It occured within the that the homicide as testified to by the witnesses for the Commonwealth is not rightfully the subject of judicial investigation in the orderly course of procedure by the civil court having jurisdiction of such offenses as are charged in this indictment. Crowley, moreover was a citizen of Pennsylvania. He was not in military service or subject to military law. The case is wholly unlike the cases of United States v. Clark, 31 Fed. Rep. 710, and In re Fair, 100 Fed. Rep. 149. In the former of these cases the shooting occured within a military reservation of the United States and was of a military convict (a soldier) by a military guard to prevent the escape of the convict. In the other case (In re Fair) the person shot was a military prisoner held in a fort of the United States. under a charge of desertion, who with violence had overcome his military guard and was immediately pursued beyond the fort by soldiers on guard duty who fired to prevent his escape. Moreover in each of those cases, and indeed in every case brought to my attention wherein a United States court or judge upon habeas corpus has discharged a prisoner in custody under state authority, the facts entitling the prisoner to exemption from state control were undisputed. This was so in the cases In re Neagle, supra; In re Waite, supra; In re Lewis, 83 Fed. Rep. 159; United States v. Fuelhard, 106 Fed. Rep. 911; In re Turner, 119 Fed. Rep. 231 and Ohio v. Thomas, supra. But in the present case there is a serious conflict of evidence involving an important issue of fact, namely whether Crowley was shot while fleeing to escape arrest or after he had stopped and turned around, and virtually had surrendered. FINDINGS OF FACT. First. The Union Savings Fund and Loan Association of McKeesport is a corporation. of the state of Pennsylvania created on the 26th day of August, 1881, for the purpose of conducting and carrying on the business of a building and loan association. That the Union Savings Fund and Loan Association No. 2 of McKeesport is also a corporation of the state of Pennsylvania, created on the 27th day of February, 1886, for the pur It is very clear that on a habeas corpus hearing such as this it is not competent for the court to determine upon conflicting evidence whether the person under indictment in the state court is guilty or innocent of the offense of which he is accused. Ex parte Crouch, 112 U. S. 178, 180. Whether the shooting of Crowley was justifiable or ex-pose of transacting the business of a building cusable must be determined by the state and loan association. court to whose jurisdiction the petitioners are subjected. That the petitioners will be protected by that court in all their legal rights is not to be doubted. An order will be made discharing the writ of habeas corpus and remanding the petitioners to the custody of the warden of the jail of Allegheny county. Second. That the two associations conduct their business at the city of McKeesport in the same office and have the same officers and board of directors, Henry W. Hitzrot being the president and Samuel J. Goodwin the secretary of each association. Third. That the Union Savings Fund and Loan Association of McKeesport by sheriff's For Commonwealth, John C. Haymaker deed dated October 14, 1893, and recorded and John Murron. For United States, James S. Young. in the prothonotary's office of Allegheny county in sheriff's deed book Vol. 6, page 263, of Common Pleas No. 2, acquired title to a lot of ground in the Sixth ward of the Court of Common Pleas No. 2, city of McKeesport, being lot No. 61 in the ALLEGHENY COUNTY. EGER v. UNION SAVINGS FUND Deed-Wrong grantor named in-Correction by bill in equity. The U. S. F. & L. A. and U. S. F. & L. A. No. 2; each had the same office and officers. The di rectors of the U. S. F. & L. A. authorized the execution of a deed of certain property to A. Its officers executed and delivered the deed, but by mistake the grantor read U. S. F. & L. A. No. 2. These facts being established on bill in equity, a decree was made correcting the deed by naming the proper grantor. No. 84 July T., 1904. Opinion by FRAZER, P. J. 21, 1904. plan of East Park, recorded in the recorder's office of Allegheny county in plan book Vol. 11, page 48, having a front of thirty feet on the east side of Soles street and extending back a distance of ninety feet to a ten-foot alley, preserving a uniform width of thirty feet. The same having been sold upon a writ of lerari facias issued upon a judgment entered at No. 196 October term, 1893. Fourth. In the month of August, 1897, the plaintiff herein purchased of the Union Savings Fund and Loan Association of McKeesport, for the sum of seven hundred and fifty dollars, the property described in the preceding finding. That a deed was executed and delivered to plaintiff therefor, the same being dated and acknowledged September 14, 1897, and recorded in the recorder's office of Allegheny county, Pa., on the 17th Filed April day of September, 1897, in deed book Vol. 972, page 580. That for the purpose of correcting an error in the deed above referred to another deed was subsequently executed and delivered to plaintiff for the same lot of The purpose of this bill is to correct the name of the grantor in a deed to plaintiff for the property described therein. From the bill, answer and proofs we find the follow-ground, dated January 17, 1899, and reing facts: corded in the recorder's office of Allegheny |