is complete when it is ascertained that burning the cotton was a hostile belligerent act in obedience to military order. The fact that the order was given to Surget and Minor necessarily implies that they were subject to obey.

It was said by the Chief Justice in Texas v. White, 7 Wallace 700., that whilst belligerent rights were conceded, the United States studiously avoided any other recognition of the Confederate States than as a part or as the organ of the military power. Whatever might be rightfully done in a foreign war by a belligerent in the prosecution of hostilities could be done by the Confederates: Murrain v. Insurance Co., 6 Wallace 10, 11, 12, 13; Hanger v. Abbott, Id. 335, 6, 7. The principle having this extent of application, has been repeatedly stated by the Supreme Court of the United States. But whilst this concession is made it has as often been declared that the sovereign, because of it, foregoes none of his rights to deal with his citizens for taking arms against him.

All that we mean to affirm is, that acts considered legitimate in the prosecution of hostilities, do not render the doers of them. amenable to make reparation in damages to private persons who have been injured in their property. If horses had been taken from non-combatants (by impressment) for military service, it would hardly be maintained that those who did it would be liable personally to the owners. Nor would the courts give a remedy to restore these animals to their former owners, if at the close of the war they were found in the possession of citizens who derived a right through the military, as by a quartermaster's sale of condemned property.

The circumstance that the provost-marshal published the order to the people of Adams county, indicates that they were in sympathy with its motive and purpose, and that serious difficulties would not be encountered in carrying it out. Nor can it be doubted that if he had not the means at hand to overcome opposition and resistance that ample force would have been promptly supplied.

Necessarily there were many excesses of authority, abuses of power, and wrongs done during the late war. In this the greatest struggle of arms of modern times, employing the utmost energies and resources of the people, when nearly all of them in one form or another were participating in the struggle, when the courts. for the most part were closed, and the laws in the midst of arm

were silent, or if they spoke at all, uttered but a feeble voice; it 'is not to be expected that in all circumstances personal rights and private property would be scrupulously respected, or that those who acted under military orders were at all times discreet and forbearing.

We do not think that it would be wise to encourage the exhuming of such transactions of those distempered times for adjudications in the courts.

Any other doctrine than that we have announced, as the result of mature reflection, would flood the courts with suits for compensation for property taken or destroyed during the war. That so few have been brought is persuasive that the conclusion of law we have reached has been sanctioned by the judgment and conscience of the community. It commends itself to the reason, and is promotive of quietude and charity one towards another. We have examined the cases referred to by counsel at the argument, reported in 2d and 4th West Virginia Rep., also the Louisiana Case. With deference and respect for these learned courts, we are constrained to the belief that the courts failed to apprehend and apply the correct principle of law to the facts before them.

We have looked to the pleas solely with reference to their substance and not to their structure and technical sufficiency. So they were treated by counsel at the argument.

Let the judgment be affirmed.

Supreme Court of the United States.

FRANK B. MYERS v. JOHN T. CROFT.

The pre-emptor of territorial land under the Act of Congress of September 4th 1841, is restrained from aliening it (with certain exceptions) before entry in the land office, but after entry he may sell and pass a valid title without waiting for the issue of his patent.

The competency of a corporation, grantee, to take title to land, cannot be disputed by a grantor who has delivered a deed and received the consideration, or by any one claiming through him by subsequent conveyance.

IN error to the Circuit Court of the United States for the District of Nebraska.

The opinion of the court was delivered by

DAVIS, J.-This is an action of ejectment, to try the title to a quarter section of land in Nebraska. Both parties derived title through William Penn Fraily. The plaintiff below, who is also the plaintiff in this court, by deed from Fraily to himself, of the 12th of June 1860; the defendant, by deed from Fraily to the Sulphur Springs Land Company, of the 3d day of September 1857. It was admitted at the trial, to save the trouble of proving the facts, that on the 3d day of September 1857, Fraily entered the premises in question at the United States Land Office for the Omaha land district, with the register thereof, under and by virtue of an Act of Congress, entitled "An Act to appropriate the proceeds of the sales of the public lands, and to grant preemption rights," approved September 4th 1841, and that the usual letters patent of the United States were issued on the 1st day of May 1860, to said Fraily, under his said entry. On this state of the case the court instructed the jury that the title passed by the deed to the Sulphur Springs Land Company, as it was prior in point of time, and told them to find a verdict for the defendant. The plaintiff in error contends that this instruction was erroneous, because, in the first place, the Sulphur Springs Land Company was not a competent grantee to receive the title, and, secondly, if it was competent, that the deed to it was, nevertheless, void, for the reason that it was made before the patent issued. In relation to the first objection it is sufficient to say, in the absence of any proof whatever on the subject, that it will be presumed the land company was capable, in law, to take a conveyance of real estate; besides, neither Fraily, who made the deed, nor Myers, who claims under him, is in a position to question the capacity of the company to take the title after it has paid to Fraily full value for the property: Smith v. Sheeley, decided December Term 1871.

The other objection is of a more serious character, and depends for its solution upon the construction to be given the last clause of the 12th section of the Act of Congress of September 4th 1841, above referred to. The act itself is one of a series of preemption laws conferring upon the actual settler upon a quarter section of public land the privilege (enjoyed by no one else) of purchasing it, on complying with certain prescribed conditions. It had been the well-defined policy of Congress, in passing these

laws, not to allow their benefit to enure to the profit of land speculators, but this wise policy was often defeated. Experience had proved that designing persons, being unable to purchase valuable lands, on account of their withdrawal from sale, would procure middlemen to occupy them temporarily, with indifferent improvements, under an agreement to convey them so soon as they were entered by virtue of their pre-emption rights. When this was done, and the speculation accomplished, the lands were abandoned.

This was felt to be a serious evil, and Congress, in the law under consideration, undertook to remedy it by requiring of the applicant for a pre-emption, before he was allowed to enter the land on which he had settled, to swear that he had not contracted it away, nor settled upon it to sell it on speculation, but, in good faith, to appropriate it to his own use. In case of false swearing the pre-emptor was subject to a prosecution for perjury, and forfeited the money he had paid for the land; and any grant or conveyance made by him before the entry was declared null and void, with an exception in favor of bona fide purchasers for a valuable consideration. It is contended by the plaintiff in error that Congress went further in this direction, and imposed also a restriction upon the power of alienation after the entry, and the last clause in the 12th section of the act is cited to support the position.

This section, after prescribing the manner in which the proof of settlement and improvement shall be made before the land is entered, has this proviso: "and all assignments and transfers of the right hereby secured prior to the issuing of the patent shall be null and void."

The inquiry is, what did the legislature intend by this prohibition? Did it mean to disqualify the pre-emptor who had entered the land from selling it at all until he had obtained his patent, or did the disability extend only to the assignment of the pre-emption right? Looking at the language employed, as well as the policy of Congress on the subject, it would seem that the interdiction was intended to apply to the right secured by the act, and did not go further. This was the right to pre-empt a quarter section of land by settling upon and improving it, at the minimum price, no matter what its value might be when the time limited for perfecting the pre-emption expired. This right was valuable, and

independently of the legislation of Congress assignable: Thredgill v. Pintard, 12 How. 24. The object of Congress was attained when the pre-emptor went, with clean hands, to the land office and proved up his right, and paid the government for his land. Restriction upon the power of alienation after this would injure the pre-emptor, and could serve no important purpose of public policy. It is well known that patents do not issue in the usual course of business in the General Land Office until several years after the certificate of entry is given; and equally well known that nearly all the valuable lands in the new states, admitted since 1841, have been taken up under the pre-emption laws, and the right to sell them freely exercised after the claim was proved up, the land paid for, and the certificate of entry received. In view of these facts we cannot suppose, in the absence of an express declaration to that effect, that Congress intended to tie up these lands in the hands of the original owners, until the government should choose to issue the patent.

If it had been the purpose of Congress to attain the object contended for, it would have declared the lands themselves unalienable until the patent was granted. Instead of this, the legislation was directed against the assignment or transfer of the right secured by the act, which was the right of pre-emption, leaving the pre-emptor free to sell his land after the entry, if at that time he was, in good faith, the owner of the land, and had done nothing inconsistent with the provisions of the law on the subject.

The judgment of the Circuit Court is affirmed.

Supreme Judicial Court of Massachusetts.

GEORGE PEABODY ET AL. v. CHARLES K. HAMILTON.

A person not a citizen of the United States or a temporary resident of, or com morant in the state in which the action is brought, but a resident and citizen of the kingdom of Great Britain, may bring an action against a person not a resi dent of the state, or having property therein subject to attachment, for a cause of action not local in its nature, where service of the process by which the suit is commenced is made on the defendant personally within the state.

The fact that a plaintiff is not a resident of a state or personally present in it and is a resident and citizen in the kingdom of Great Britain, does not disqualify