ceedings are void, and the judgment a nullity. In re Terrill (Kan.; Oct. 7, 1893) 34 Pac. 457.

5. A person is not in legal jeopardy until put upon trial before a court of competent jurisdiction, under an information or indictment sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance; that is, impaneled and sworn. Cooley, Const. Lim. 327, 328, and cases.

6. If a defendant is tried, convicted, and judgment pronounced, and such defendant incarcerated in the penitentiary in execution of the judgment, and subsequently remanded to the trial court for further proceedings upon the ground that said trial court had not jurisdiction, said defendant has not been once in jeopardy, within the constitutional meaning.

(Syllabus by the Court.)

Petition by Matthew McClaskey for writ of habeas corpus to obtain his release from the custody of the sheriff of Payne county, Okl. T. Writ denied.

C. R. Buckner, for petitioner. Sterling P. King, for the Territory.

SCOTT, J. The petitioner, Matthew McClaskey, filed his petition in this court, praying for a writ of habeas corpus, on the 22d day of January, A. D. 1894. The action is instituted upon the theory that he has been once in jeopardy, within the meaning of the constitutional guaranty that no person shall be "subject for the same offense to be twice put in jeopardy of life or limb." On the 16th day of August, 1892, the petitioner was indicted by the grand jury of Payne county, charging him with the murder of John J. Anderson, and on the 18th day of November, 1892, was found guilty of said charge, and his punishment assessed by the jury, under the law, at imprisonment at hard labor for life. In execution of this sentence he was transported to the penitentiary at Lansing, Kan., where he remained incarcerated until his discharge from the custody of the warden, on the 7th day of October, 1893, by the supreme court of said state, and placed by him in the hands of the sheriff of Payne county, by authority of the following order: "In re Matthew H. McClaskey. This cause comes on for decision, and thereupon it is ordered and adjudged that the petition for the writ of habeas corpus be allowed, and that the petitioner, Matthew H. McClaskey, be released from imprisonment in the Kansas state penitentiary, and forth with delivered by the warden of said penitentiary into the custody of the sheriff of Payne county, Oklahoma territory, there to answer the charges in the indictment under which he was originally arrested. It is further ordered that the respondent pay the costs of this case in this court, taxed at $-, and hereof let execution issue. C. J. Brown, Clerk of Supreme Court. [Seal.]" This order was complied with, and the petitioner delivered to the sheriff of Payne county, and is now being held, awaiting further proceedings before the district court of that county, in the meantime praying discharge, assigning therefor, in substance, the following specific legal

grounds: which the petitioner is held has been fully investigated by a court of competent jurisdiction, and that upon said investigation said petitioner was ordered discharged. Sec ond. That the petitioner has been tried, convicted, judgment entered, and sentence passed upon him, and that, in execution of said sentence. petitioner had been incarcerated in the penitentiary at Lansing, Kansas, and, having had a hearing on a writ of habeas corpus by the supreme court of the state of Kansas, was ordered discharged from said penitentiary. Third. That no further proceedings upon the charge for which he is held ought to be had against him, for the reason that at the April term of the district court of Payne county said petitioner was put upon his trial, and found guilty, and sentence passed, and, in execution of said sentence and judgment, petitioner was incarcerated in the penitentiary at Lansing, Kansas. Fourth. That the petitioner was on the 16th day of August, 1892, indicted on the charge for which they now hold him, at which date and time, the petitioner alleges, there was no court or grand jury in session in Payne county. Fifth. Two or more terms of court for Payne county have passed since petitioner has been in custody, and that more than one term of court has passed since petitioner was indicted upon the charge he is now held, and that the petitioner has in no way continued, delayed, or hindered his trial. Sixth. That there is no legal warrant or commitment, or other legal process on which this petitioner is held, issued from any court."

"First. That the charge upon

While the petitioner seeks to discharge on several grounds, the only one seriously urged for is the technical question raised as to wheth er the trial, conviction, sentence, and subsequent imprisonment of the petitioner operate as jeopardy, within the meaning of the law. In considering his alleged illegal restraint, the supreme court of Kansas (Justice John. son speaking for the court; 34 Pac. 459) uses this language: "This is a proceeding in habeas corpus to release from custody Matthew H. McClaskey, who is imprisoned in the state penitentiary at Lansing, Kansas. The proceeding presents substantially the same question that has just been decided in the case In re Terrill, 34 Pac. 457. The petitioner was indicted for murder at the April term, 1892, of the first judicial district for the territory of Oklahoma, within and for Payne county. A trial was attempted on November 14, 1892, at what purported to be the November term of the court, which resulted in a conviction, and a sentence of imprisonment at hard labor for life. He was committed to the state penitentiary of Kansas, it being also the prison for the territory of Oklahoma. The November term of the court should have begun on the 1st day of that month, but the Honorable E. B. Green, who was the presiding judge of the court, failed to attend. He

sent an order from another county, by mail, directing an adjournment of the court until the 10th day of November, 1892. When the 10th of November arrived the judge of the court was again absent. The clerk undertook to adjourn the court until the following day. Upon that day the judge appeared and convened court, after which followed the trial and conviction of the petitioner. The failure of the judge to appear and open court upon the 1st day of November resulted in the loss of the term. The presence of the judge at the time appointed by law for the holding of the court was indispensable to the validity of the subsequent proceedings, and the judge had no authority, by an order made in another county, to authorize or direct the ministerial officers to exercise judicial powers in opening and adjourning court. In re Terrill, supra. Following the judgment in the Terrill Case, the respondent will release the petitioner from imprisonment in the penitentiary, and deliver him to the custody of the sheriff of Payne county, Okl. T., there to answer the charges in the indictment under which he was originally arrested. All the justices concurring." Justice Johnson, speaking for the court in the Terrill Case, referred to in the language just quoted (34 Pac. 457), covering the question as to the legality of the April term of the same court more fully, and involving exactly the same legal question, says: "An indictment was returned by the grand jury of Payne county, Okl. T., charging Ira N. Terrill with the offense of murder; and at a trial held September 26, 1892, he was convicted of the offense charged, and the punishment fixed by the jury was imprisonment in the penitentiary at hard labor for life. Subsequently, the sentence of the court was pronounced, adjudging that Terrill be confined in the territorial penitentiary at Lansing, Kansas, for the term of his natural life, where he was conveyed, and is now held in custody by the warden of that prison. He seeks release here by a proceeding in habeas corpus, and in his application he alleges several grounds why his imprisonment is illegal, only one of which it will be necessary to notice. He asserts that the trial was had and the judgment rendered at a time not authorized by law; that the court was then without jurisdiction to take any proceedings against him, and hence the sentence and judgment of the court are absolutely void. In pursuance of law the terms of the district courts of Oklahoma were fixed by order of the supreme court, and the terms are required to be held in the county of Payne, commencing on the third Tuesday in April and the first Tuesday of November of each year. The petitioner was tried in 1892, and during the time within which the April term might have been held; but it appears that the judge of that court was not present at the time and place when the April term of court should have begun, nor was he present in person for several days afterwards. The

A

court should have been opened on April 19th, but the judge did not appear until the 26th of that month, when he opened and held court until April 30, 1892. Several adjournments were made by the court, one of which. was to June 14, 1892; but the judge of the court again failed to appear, when the clerk attempted to adjourn the court until August 16, 1892. At the latter date the judge appeared in person, and held court from time to time, with intervening adjournments, until September 26, 1892, when the trial and conviction of the petitioner occurred. The failure of the judge to appear and open court upon the day appointed resulted in the loss of the term, and proceedings had by a court at a time not authorized by law are absolutely void. There was then no statute of Oklahoma providing for the adjournment of the court by the clerk or other of its officers in case of the nonattendance of the judge. statute since enacted, and which went into effect in August of the present year, provides that, if the judge of a court fails to attend at the time and place appointed for holding his court, the sheriff shall have power to adjourn it from day to day until the judge do attend, or a judge pro tem. is selected, and if the judge is not present, and a judge pro tem. is not selected within two days after the first day of the term, the court stands adjourned for the entire term. St. Okl. par. 4626. There is ample power in a court which has been regularly convened to adjourn to a future time, provided it be not beyond the term; but, in the absence of a statute authorizing it, the clerk or other ministerial officer cannot act for the judge in either opening or adjourning court. The clerk is a ministerial officer, and, without statutory authority, can exercise no judicial function. The opening, holding, and adjournment of court are the exercise of judicial power to be performed by the court. To perform the fune tion of a court, the presence of the officers constituting the court is necessary, and they must be present at the time and place ap pointed by law. A 'court' is defined by Bacon to be an incorporeal political being which requires for its existence the presence of its judges, or a competent number of them, and a clerk or prothonotary, at or during which, and at a place where, it is by law authorized to be held, and the performance of some public act indicative of the design to perform the functions of a court.' Bac. Abr. tit. 'Court,' A; Hawes, Jur. § 27. To give existence to a court, then, its officers, and the time and place of holding it, must be such as are prescribed by law.' Hobart v. Hobart, 45 Iowa, 503. There being no authority in law for the clerk to open and adjourn court, the consequence of the failure of the judge to appear upon the day ap pointed for holding the court was the loss of the term. Railway Co. v. Hand, 7 Kan. 380; People v. Bradwell, 2 Cow. 445; Peo ple v. Sanchez, 24 Cal. 17; State v. Roberts,

8 Nev. 239; Brown, Jur. § 22; 12 Am. & Eng. Enc. Law, 296. In the case of Wight v. Wallbaum, 39 Ill. 554, the court was regularly in session on the 23d of August, and regularly adjourned until the following day. After that time several adjournments were entered when no judge was present. In reviewing the question the court said: 'After the 23d, for want of a judge, no legal business could have been transacted, and for that reason the court stood adjourned. The judge who opened court might no doubt have adjourned to a specified day, had the business of the court required it, and business might have been regularly resumed at that time. The judge had no power to authorize the ministerial officers to exercise judicial powers even in opening and adjourning the court. They not having such authority, and the court not having been opened on the 24th by a judge authorized to exercise the jurisdiction of the court, it stood adjourned after the 23d, and that must be regarded as the last day of the term.' See, also, In re Millington, 24 Kan. 214; Lewis v. City of Hoboken, 42 N. J. Law, 379; Hoye v. State, 39 Ga. 718; Wightman v. Karsner, 20 Ala. 446; Brumley v. State, 20 Ark. 77; Thomas v. Fogarty, 19 Cal. 644. The failure of the judge of the district court for Payne county, Okl., to attend and open court upon the appointed day, operated to end the term, and no further session of the court could be held until the next regular term, or until a specified term was legally called. To meet such exigencies, most of the states have enacted statutes for preserving the term similar to those now in force in Oklahoma territory and in Kansas. In the absence of such a statute the clerk was powerless to keep the court open until the arrival of the judge, many days after the time for the commencement of the term. The petitioner was tried after the April term had elapsed, and the proceedings in connection with his trial and conviction must be regarded as coram non judice and void. Although the right of the court to inquire into the illegal restraint of the petitioner is questioned, no substantial objection to its jurisdiction is or can be urged. He is imprisoned in Kansas, and within the jurisdiction of a court, and there is undoubted power in the court to inquire into the cause of his restraint. Having been tried and convicted at a time when the court could not be legally held, the court was without jurisdiction, and the conviction was void. While the petitioner must be released from imprisonment at the penitentiary, and from the custody of the warden, our judgment will not operate as an unqualified discharge. So far as appears here, he was regularly indicted, and as the proceedings had against him were without jurisdiction and void, it is possible there was no jeopardy, and that another trial may be had. The warden will therefore be directed to release the petitioner from imprisonment in the penitentiary, and deliver him to the

The court has fully and carefully examined the decisions of the supreme court of Kansas in the Cases of McClaskey and Terrill, just quoted, and all the authorities cited therein, and fully concur in the doctrine, and will decide this case, conceding the correctness of the law as thus announced. This renders the legal status of the petitioner very clear. He was convicted and sentenced at a time when court could not be legally held in Payne county, under the law, and therefore all proceedings at said time and place were coram non judice. After the pronouncement of the judgment the petitioner was imprisoned in the penitentiary at Lansing, Kan., which was also the prison for Oklahoma territory, under and by authority of a statutory provision authorizing the governor to contract for the care of prisoners convicted under the laws of Oklahoma, outside of the territory, in the absence of a territorial penitentiary here. The petitioner does not contend that his trial, sentence, and conviction alone constitute jeopardy, but avers that his incarceration in the penitentiary in execution of the judgment of the court carries with it, eo instante, jeopardy, within the meaning of the law. In other words, the instant the petitioner was incarcerated in pursuance of such judgment, jeopardy attached. The petitioner cites numerous authorities in support of his contention. Ex parte Lange, 18 Wall. 163; State v. Cooper, 13 N. J. Law, 375; Com. v. Loud, 3 Metc. (Mass.) 328; Harman v. U. S., 50 Fed. 921; Ex parte Friday, 43 Fed. 919; In re Feeley, 12 Cush. 598. The distinction sought to be made, and the argument offered to sustain this new doctrine advanced by the petitioner, are indeed too fine for human conception. Among the cases cited is Ex parte Lange, 18 Wall. 163. This case does not decide the question at all, by inference or otherwise, and is wholly inapplicable to the case at bar. It never was the law that jeopardy ever attached unless the trial court had jurisdiction, nor is it the law now; nor does this case, or any of the authorities cited, declare such a startling departure from a line of decisions reaching back to the very beginning of American criminal jurisprudence. The petitioner was returned to the custody of the sheriff of Payne county, and is now held for trial by a court that has jurisdiction. This he has the right to demand, and this is what is guarantied to every citizen under the constitution of the United States, and until such a trial is had there can be no jeopardy. In view of the illegality of the pretended court at which the petitioner was convicted, his trial, conviction, and sentence have no greater significance than a trial, conviction, and sentence by a pretended court organized by private citizens of the country;

and subsequent incarceration would not in either case have the effect of rendering such a trial a legal one, or investing jurisdiction when in law it never had existed. If this were true, every defendant suffering from an illegal imprisonment would have been, according to the contention of the petitioner, once in jeopardy, without reference to the question of jurisdiction. "Jeopardy," in its constitutional or common-law sense, has a strict application to criminal prosecutions only. A person is not in legal jeopardy until put upon trial before a court of competent Jurisdiction under an information of indictment sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance; that is, impaneled and sworn. Cooley, Const. Lim. 327, 328, and cases cited; Hilands v. Com., 111 Pa. St. 4, 2 Atl. 70; U. S. v. Gibert (1834; Story, J.) 2 Sumn. 38-62, Fed. Cas. No. 15,204; U. S. v. Haskell, 4 Wash. C. C. 402; Fed. Cas. No. 15,321; Brown v. Swineford, 44 Wis. 287; People v. Horn, 70 Cal. 18, 11 Pac. 470; 24 Cent. Law J. 563; 17 Am. Law Rev. 735-753; 4 Cr. Law Mag. 31-36, 487508; Moore v. State, 71 Ala. 309; People v. Webb, 38 Cal. 467; State v. Tatman, 59 Iowa, 473, 13 N. W. 632; Wright v. State, 5 Ind. 290; Williams v. Com., 78 Ky. 96; Com. v. Jenks, 1 Gray, 490; Com. v. Farrell, 105 Mass. 189; State v. Burke, 38 Me. 574; State v. Roe, 12 Vt. 93; Winsor v. Reg., L R. 1 Q. B. 289; 2 Benn. & Heard, Cr. Cas. 327.

This guaranty of personal security became a part of the constitution of the United States by amendment ratified December 15, 1791, and in no case before or since that date has it ever been announced that jeopardy ever attached unless a defendant had been put upon trial before a court of competent jurisdiction. Thus, in the case before us, unless it appears that the April term of the district court of Payne county was a court of competent jurisdiction, the petitioner has not been in jeopardy, within the constitutional meaning. It has been held that the court that tried the petitioner was not one of competent jurisdiction. Indeed, this fact is the cause of the petitioner's discharge from the custody of the warden of the Kansas penitentiary, and his return to the authorities of Payne county. He stands in the same position exactly now as he would had this point been raised on the trial, and the case appealed to this court and reversed, and the cause remanded for a new trial. The fact that his rights have been ascertained and determined by a proceeding in habeas corpus gives him no more than a right to a new trial. Hence, the point raised by petitioner, that on account of his return to Payne county authorities, as the record discloses, on habeas corpus, he is entitled to an

1. An order by the judge who tried a divorce case, granting $100 printer's fees and $250 counsel fee on a pending appeal from a judgment in favor of the wife, and a contemplated appcal from an order denying a new trial, will not be reversed as excessive.

2. In an action for divorce, an order granting a counsel fee for an appeal from an order denying a new trial, made before such appeal is taken, will not be reversed as premature where, on the hearing of the appeal from the order granting such allowance, it appears that an appeal from the order denying a new trial is pending.

Department 2. Appeal from superior court. city and county of San Francisco; Charles W. Slack, Judge.

Action for divorce by Lillie Wolff against Henry Wolff. From an order granting an allowance for counsel fees and disbursements, defendant appeals. Affirmed.

Fox & Kellogg, for appellant. W. H. L Barnes (W. W. Foote. of counsel), for re spondent.

PER CURIAM. This is an appeal from an order made after judgment in a divorce case allowing alimony. The affidavit, among other things, states that the case has been tried. and judgment rendered for plaintiff; that an appeal had already been taken from the judg ment, and a motion for a new trial had been made and denied; and that defendant contemplated an appeal from such order. There upon, the court allowed as alimony for the two appeals: For printing, $100; for counsel fees, $250. The affidavit also shows that, although alimony had been previously allowed to the amount of $1,700, only $250 had been paid; that plaintiff was destitute of means. It is contended that the allowance is excessive, but we cannot so conclude. The judge who made the order had tried the case. and was fully aware of the nature of the controversy. How much printing would be required would depend upon this. It would have been more prudent to forbear making an allowance for the second appeal until after it had been taken, but our records show that the appeal from the order denying a new trial was taken afterwards. We do not think the order should be reversed because the provi sion for this was premature. The order is affirmed.

(104 Cal. 130) WALLACE v. MCKENZIE et al. (No. 18,275.) (Supreme Court of California. Sept. 17, 1894.) MORTGAGES-PRIORITIES.

Where a mortgage on land is made under an express oral agreement that it shall be subject to one to be given to D., the fact that it is recorded before the mortgage to D. will not, in equity, destroy the priority of the latter as between the immediate parties.

Department 2. Appeal from superior court, Fresno county; M. K. Harris, Judge.

Action by Miles Wallace, assignee in insolvency of John Krohn, against McKenzie, Rule, and Dickey, to foreclose a mortgage. Judgment was rendered in favor of defendant Dickey, and plaintiff appeals. Affirmed. Stuart S. Wright and J. P. Meux, for appellant. Frank H Short, for respondents.

MCFARLAND, J. The plaintiff, Wallace, as assignee in insolvency of one John Krohn, brought this action to foreclose a mortgage executed to said Krohn by defendants McKenzie and Rule. Dickey was made a defendant upon averment that he claimed some interest in the mortgaged premises which is alleged to be subsequent and subject to the lien of plaintiff's mortgage. Dickey, by answer and cross complaint, set up that he had a mortgage on said premises, executed by said McKenzie and Rule, which was prior and superior to the mortgage of plaintiff. The court found in favor of Dickey, holding plaintiff's mortgage to be second, and subject to that of Dickey. Plaintiff appeals from the judgment, and from an order denying his motion for a new trial.

The fact are substantially these: A few days prior to the execution of either of the mortgages. Krohn, who was a creditor of McKenzie and Rule, requested the latter to give him a mortgage to secure the amount owing by them to him; and they informed him that they would do so if he would accept the same as a second mortgage subject to one which they had given, or were about to give, to Dickey. To this Krohn assented. A mortgage which had been prepared by or for Dickey, who lived at Fresno, and forwarded to McKenzie and Rule, who lived near a place called Coarse Gold, was signed by the latter on or about November 8, 1889. On November 9th the mortgage to Krohn was drawn up by a notary at Coarse Gold,-being substantially copied, except as to amounts, etc., from the mortgage to Dickey,-and both mortgages were on said day acknowledged before said notary, the one to Dickey being acknowledged first. Krohn took his mortgage (the one sued on in this action) "with the express understanding and agreement that he would take and receive the same subsequent and subject to the Dickey mortgage, which, it was expressly understood and agreed, was and should be the first upon said premises." McKenzie and Rule "refused to execute a first aortgage of said premises to

said Krohn" and "would never have delivered the mortgage to him, except that the said Krohn agreed to receive and did receive the same as a second mortgage upon said premises, and subject to the said mortgage of the said Dickey." Krohn had his mortgage recorded immediately. Dickey's mortgage was sent to him at Fresno the next day by mail, and was not recorded until several days afterwards. We think that under these circumstances the court below correctly held that the mortgage of plaintiff should be treated in equity as second and subject to the mortgage of defendant Dickey. Plaintiff stands in the shoes of Krohn, and there is no question of innocent holders without notice to be considered. Therefore, authorities cited by appellant which deal with the rights of third parties do not here apply. It seems that when Dickey received his, mortgage he sent it back for some corrections, but it does not appear that any alterations were made, and it does appear that no material alteration was made. It dces appear that the notary, for some reason, changed the date of the acknowledgment; but that, in any view, is immaterial, for as Krohn had full knowledge of the existence of Dickey's mortgage, and expressly agreed to take his subject to it, it is unimportant whether or not the mortgage was properly recorded. Judgment and order affirmed.

1. Code Civ. Proc. § 1254, which provides that where, after an award in condemnation proceedings, a new trial is granted the owner, and he fails on such trial to obtain a greater compensation than on the first, the costs of the new trial shall be taxed against him, does not violate Const. art. 1, § 14, providing that private property shall not be taken for public use without just compensation.

2. Code Civ. Proc. § 1254, provides that if, after the judgment in condemnation proceedings, plaintiff wishes to take possession, it must pay into court the full amount of the judgment; that defendant, upon filing an abandonment of all defenses except as to the amount of damages on a new trial, shall be entitled to receive the amount of the judgment; and that the receipt of such amount shall be held to be an abandonment by defendant of all defenses excepting his claim for greater compensation. Held, that where defendant has filed an abandonment, and received the amount of the judgment, the only issue on a new trial is whether he is entitled to greater compensation; and, if the award is for a smaller amount, plaintiff is not entitled to a judgment against him for the difference.

3. In condemnation proceedings by a railroad company, defendant will not be allowed on a second trial to show the comparative value of her property before and after the construction