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Opinion of the Court.

because the offence created by the statute was the exercising of a calling on the Lord's day, and, if the plaintiff had continued baking from morning till night, it would still be but one offence; that the four convictions were for one and the same offence; and that an action would lie against the justice and the officers. On the other side it was urged, that, as the justice had general jurisdiction of the offence in question, the convictions must be quashed, or reversed on appeal, before they could be questioned. At a subsequent day, the unanimous opinion of the court was delivered by Lord Mansfield. He first considered the question whether the legality of the convictions could be objected to before they were quashed. As to this he said: "Here are three convictions of a baker, for exercising his trade on one and the same day, he having been before convicted for exercising his ordinary calling on that identical day. If the act of Parliament gives authority to levy but one penalty, there is an end of the question; for there is no penalty at common law. On the construction of the act of Parliament the offence is 'exercising his ordinary trade upon the Lord's day'; and that without any fractions of a day, hours or minutes. It is but one entire offence, whether longer or shorter in point of duration; so, whether it consists of one, or of a number of particular acts. The penalty incurred for this offence is five shillings. There is no idea conveyed by the act itself, that, if a tailor sews on the Lord's day, every stitch he takes is a separate offence; or, if a shoemaker or carpenter work for different customers at different times on the same Sunday, that those are so many separate and distinct offences. There can be but one entire offence on one and the same day. And this is a much stronger case than that which has been alluded to, of killing more hares than one on the same day. Killing a single hare is an offence; but the killing ten more on the same day will not multiply the offence, or the penalty imposed by the statute for killing one. Here, repeated offences are not the object which the legislature had in view in making the statute; but singly, to punish a man for exercising his ordinary trade and calling on a Sunday. Upon this construction, the justice had no jurisdiction whatever in respect of the

Opinion of the Court.

three last convictions. How, then, can there be a doubt but that the plaintiff might take this objection at the trial?" As to justifying the levy under the last three warrants, Lord Mansfield said: "But what could the justification have been in this case, if any had been attempted to be set up? It could only have been this: That because the plaintiff had been convicted of one offence on that day, therefore the justice had convicted him in three other offences for the same act. By law that is no justification. It is illegal on the face of it; and, therefore, as was very rightly admitted by the counsel for the defendant, in the argument, if put upon the record by way of plea, would have been bad, and on demurrer must have been so adjudged. Most clearly, then, it was open to the plaintiff, upon the general issue, to take advantage of it at the trial. The question does not turn upon niceties; upon a computation how many hours distant the several bakings happened; or upon the fact of which conviction was prior in point of time; or that for uncertainty in that respect they should all four be held bad. But it goes upon the ground that the offence itself can be committed only once in the same day."

In the case at bar the statute provides, that if any male person shall thereafter cohabit with more than one woman, he shall, on conviction, be punished thus and so. The judgment in the case, taken in connection with the other proceedings in the record and the statute, shows, within the principle of Crepps v. Durden, that there was but one entire offence,. whether longer or shorter in point of duration, between the earliest day laid in any indictment and the latest day laid in any. There can be but one offence between such earliest day and the end of the continuous time embraced by all of the indictments. Not only had the court which tried them no jurisdiction to inflict a punishment in respect of more than one of the convictions, but, as the want of jurisdiction appears on the face of the judgment, the objection may be taken on habeas corpus, when the sentence on more than one of the convictions is sought to be enforced. If such an objection could be taken in Crepps v. Durden, in a collateral action for damages, it can be taken on a habeas corpus to release the party

Opinion of the Court.

from imprisonment under the illegal judgment. These considerations distinguish the case from that of Ex parte Bigelow, (ubi supra,) and bring it within the principle of such cases as Ex parte Milligan, 4 Wall. 2, 131; Ex parte Lange, 18 Wall. 163, 178; and Ex parte Wilson, 114 U. S. 417.

A distinction is laid down in adjudged cases and in textwriters between an offence continuous in its character, like the one at bar, and a case where the statute is aimed at an offence that can be committed uno ictu. The subject is discussed in 1 Wharton's Criminal Law, 9th ed., §§ 27, 931, and the cases on the subject are cited.

The principle which governs the present case has been recog nized and approved in many cases in the United States: Washburn v. McInroy (1810), 7 Johns. 134; Mayor v. Ordrenan (1815), 12 Johns. 122; Tiffany v. Driggs (1816), 13 Johns. 253; State v. Commissioners (1818), 2 Murph. (N. C.), 371; United States v. McCormick (1830), 4 Cranch C. C. 104; State v. Nutt (1856), 28 Vt. 598; State v. Lindley (1860), 14 Ind. 430; Sturgis v. Spofford (1871), 45 N. Y. 446; Fisher v. New York Central & Hudson River Railroad (1871), 46 N. Y. 644; State v. Egglesht (1875), 41 Iowa, 574; United States v. New York Guaranty & Indemnity Co. (1875), 8 Ben. 269; United States v. Erie Railway Co. (1877), 9 Ben. 67, 68.

The case of Commonwealth v. Connors, 116 Mass. 35, gives no support to the view that a grand jury may divide a single continuous offence, running through a past period of time, into such parts as it may please, and call each part a separate offence. On the contrary, in Commonwealth v. Robinson, 126 Mass. 259, it is said that the offence of keeping a tenement for the illegal sale of intoxicating liquors on a day named, and on divers other days and times between that day and a subsequent day, is but one offence, even though the tenement is kept during every hour of the time between those two days, such offence being continuous in its character.

On the whole case we are unanimously of opinion that
The order and judgment of the District Court for the Third
Judicial District of Utah Territory must be reversed and
the case be remanded to that court, with a direction to grant

Statement of Facts.

the writ of habeas corpus prayed for, and to take such proceedings thereon as may be in conformity with law and not inconsistent with the opinion of this court.



Argued November 11, 12, 1886. — Decided January 24, 1887.

The provision in the constitution of Arkansas of 1874 that "no private corporation shall issue stock or bonds except for money or property actually received, or labor done; and all fictitious increase of stock or indebtedness shall be void" does not prevent the carrying out of an agreement between mortgage bondholders of an embarrassed railroad company in that state by which it was agreed that trustees should buy in the mortgaged property on foreclosure, and convey it to a new company to be organized by the bondholders which should issue new mortgage bonds to pay the expenses of the sale, and other new mortgage bonds to be taken by the bondholders in lieu of their old bonds, and full paid up stock subject to the mortgage debt, to be delivered to and held by the bondholders without any payment of money; and the bonds issued under such an agreement are not subject to the provisions of § 5, 488 Rev. Stat. Ark., Mansfield's Digest, page 1057, respecting the legal rate of interest for certain classes of railroad securities. Trustees under a mortgage from a railroad company with covenants of warranty are entitled to protect the trust property against a forced sale under a prior incumbrance, and upon the payment of that incumbrance to have the benefit of its lien as against the company, and to be reimbursed the amount so paid by them with legal interest: but the rate of interest in such case should be determined by the law in force at the time of the subrogation.

THE appellant, the Memphis and Little Rock Railroad Company, (as reorganized,) an Arkansas corporation, conveyed, by deed of May 2, 1877, to Pierson, Matthews, and Dow, trustees, its road and connections, and all its property, rights, and privileges, including its franchise to be a corporation, to secure the payment of its bonds of the same date, aggregating $2,600,000,

Statement of Facts.

and payable in thirty years, subject to a mortgage for $250,000, executed May 1, 1877. The deed provided for the employ ment, at the expense of the trust estate, of such attorneys and agents as were reasonably necessary for the execution of the trust, and, also, for the payment of charges, costs, expenses, and compensation, incurred by the trustees, from time to time, "in and about or for the execution of the trust."

On the 4th day of March, 1882, the Supreme Court of Arkansas, in a suit to which that corporation was a party, rendered a decree adjudging that the state had a lien upon its road and rolling stock to secure the payment of $202,133.32, with interest, from December 22, 1879, until paid, at the rate of eight per cent. per annum; that being the aggregate principal and interest then due on a loan of $100,000 made January 10, 1861, by the state to the (old) Memphis and Little Rock Railroad Company, and secured by a mortgage upon its rolling stock and upon the same road now operated by the appellant.

On the 25th of March, 1882, five days before the day fixed for the sale directed to be made in satisfaction of that decree, the appellees, (Moran having succeeded Pierson,) as trustees in the deed of May 2, 1877, paid into the treasury of Arkansas the sum of $239,672.71 in full discharge of the state's claim.

The appellees sought by this suit to be subrogated to the rights of the state, and to charge the mortgaged property and interests with the amount so paid by them, with interest thereon, and, also, with such sums as might be ascertained to be due by reason of liabilities incurred, and costs, time, and labor expended by them in and about the trust.

The company resisted each of the claims asserted by the appellees. Its answer proceeded mainly upon the ground that the bonds secured by the deed of May 2, 1877, were and continued to be void under the constitution and laws of Arkansas, having been issued, it was alleged, to the stockholders of the appellant without consideration in money, labor, or property actually received, of which fact the plaintiffs and every original taker of the bonds were advised, and as to which subsequent takers, if such there were, were put upon inquiry by the

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