*650, "that the Pennsylvania cases on the subject of oral evidence in respect to written instruments are not always safe guides when the inquiry is simply as to the rule at law." In Bast v. Bank, supra, the supreme court of the United States says: "It is not always easy to determine when in Pennsylvania parol evidence is admissible to explain a written instrument, but in Anspach v. Bast, 52 Pa. St. 356, it is expressly declared that no case goes the length of ruling that such evidence is admitted to change the promise itself, without proof or even allegation of fraud or mistake.' * * * To the same effect is the case of Hacker v. Refining Co., 73 Pa. St. 93, as well as many others that might be cited." It is not possible, without doing violence to principles as old and as firmly fixed as the common law itself to escape the force and effect of these authorities. It is true their application in this particular case may work a hardship on the plaintiff, but he was familiar with the law, and could readily have protected himself by ingrafting the stipulation into the written lease. On the argument here the respondent insisted that the agreement in relation to the removal of the fence was collateral, and might therefore exist in parol. But was it collateral? The respondent says it was a condition upon which the renewed lease was accepted. It related to the convenience and tenantable condition of the demised premises, and was probably essential to their enjoyment. How can it, then, be claimed that this part of the agreement was collateral? There are no allegations of fraud on the part of the defendant in respect to the execution of said lease, or the manner he has acted in relation to the demised premises, and no question on that subject can be considered in this case. Having reached a conclusion that is decisive of the case, it is unnecessary to consider or to determine any of the other questions that were argued on the appeal. The judgment must therefore be reversed, and the cause remanded for a new trial.

thereon from prison. By consent the whole matter is heard upon the application for the writ; the facts stated in the petition being admitted as true by the United States district attorney. The petitioner, Charles M. Nokes, was on the 18th day of October, 1888, sentenced by the district court to imprisonment in the penitentiary for the term of 85 days, and to pay a fine of $150. The 85 days would, if there were no deductions, expire on the 11th of January, 1889. But the petitioner claims that he is entitled to deductions at the rate of 5 days per month. If this were correct, the end of the term of sentence of 85 days would have expired on the 31st day of December, 1888; and the time which the law requires that he should be imprisoned solely for non-payment of the fine of $150 would begin to run on the 31st day of December, 1888, and, it being 30 days, would expire on the 30th day of January, 1889. On the 31st day of January, 1889, the petitioner, under provision of the statute, (Rev. St. U. S. §3 1042, 5296,) applied to United States Commissioner Norrell for his discharge from prison, and showing that his behavior in the penitentiary was good, that he was unable to pay the fine, that he had no property to the amount of $20, over and above that which is exempt from execution, and claiming that he had served his term of sentence and the 30 days additional. After hearing, Commissioner Norrell denied the application for a discharge from prison. Thereupon the petitioner has applied, to this court for his discharge on the writ of habeas corpus. Whether he is entitled to his discharge or not depends upon whether his case comes within the provision of the statute as to deductions for good behavior. That statute (2 Comp. Laws 1888, p. 762) reads as follows: Paragraph 5268, § 2: "Each convict sentenced for any period less than life, who has not been guilty of a breach of the rules of discipline of the prison, shall be entitled to a reduction of the period of sentence, as hereinafter provided," etc. Paragraph 5269, § 3: "The following deductions shall be allowed to convicts for good conduct: From the term of sentence of three months, fifteen days; from a term of six months, thirty days; from a term of one year, two calendar months;" and then follows a detail of the amount of deductions for greater terms of sentence. Paragraph 5270, § 4: "In all terms Comp. Laws Utah 1888, vol. 2, par. 5268, § 2, al- of sentence terminating intermediately belows convicts a reduction of their periods "as here- tween these terms herein before specified, the inafter provided." Paragraph 5269, § 3, fixes the deduction shall be proportionate to those deduction for those imprisoned for three and six named in the foregoing sections." The secmonths, and longer periods. Paragraph 5270, § 4, authorizes a proportional deduction for terms "ter: tion just quoted (paragraph 5268) declares minating immediately between these terms. "that each convict shall be entitled to a reducHeld, that one imprisoned for less than three

On petition of the respondent, a rehearing was allowed in this case, and on the 3d day of May, 189, the court announced that it adhered to its former decision. [REP.

(6 Utah, 106)

Ex parte NOKES.

(Supreme Court of Utah. Feb. 2, 1889.) IMPRISONMENT-DEDUCTION FOR GOOD BEHAVIOR.

months is entitled to no deduction.

Petition for habeas corpus.

tion of the period of sentence, "as hereinafter provided;" the next section (paragraph 5269) does not provide for any reduction

Sheeks & Rawlins, for petitioner. Geo. S. where the period of sentence is less than Peters, U. S. Atty., contra.

BOREMAN, J. This is an application for a writ of habeas corpus, and for a discharge

three months; and the subsequent section (paragraph 5270) provides for reductions only in "terms of sentence terminating intermediately between those terms hereinbe

fore specified." As there is no reduction to allege, upon information and belief, that provided in any prior section where the term the defendant Salt Lake City, through its ofof imprisonment is less than three months, ficers and agents, claimed that such vacant the sentence imposed upon the petitioner lands and unoccupied lots are the private could not have been a sentence "terminating property of the city; and, further, that it has intermediately between these terms herein- been the custom of the city, by its officers before specified," and therefore not coming and agents, during the years since the date within the provision of the statute. If we of the said patent and the conveyance made could apply the spirit of the statute to the to occupants claiming at that time, to arbicase, the petitioner could be discharged; but trarily sell lots and parcels of said lands to we are bound by the language of the statute, whomsoever it pleased, without regard to ocit being plain and unambiguous. The case cupancy or right or price; that portions of of the petitioner does not come within the said unoccupied lands have been sold to statute, and he is not entitled to be dis- friends of members of the city council and charged. He is remanded to the custody of others, whomsoever the officers of said city the marshal. desired to favor or assist, and refusing to sell to others on like terms, and no uniform rule

SANDFORD, C. J., and HENDERSON and or ordinance has been established or is in exJUDD, JJ., concur.

(6 Utah, 109)

LINCK . SALT LAKE CITY et al. (Supreme Court of Utah. January Term, 1889.) TOWN-SITES-EQUITY.

istence for the sale of said lands or lots; that the land hereinafter described has never been occupied or appropriated by any one, nor has it ever been deeded or conveyed by said Salt Lake City, or any mayor of said city, to any person whomsoever, and was entirely vacant until this plaintiff, on the 11th day of FebAct Utah 1863, § 10, requires unclaimed lands within a town site to be surveyed, etc., and pro-ruary, 1888, entered upon and took actual vides for their sale. A complaint alleged that de- and peaceful possession thereof; that no part fendant city claimed certain unoccupied land in a of the same has been platted by the city, or town site as its private property: that its custom surveyed into streets, blocks, or lots, or aphad been to sell arbitrarily parcels thereof without regard to occupancy, right, or price; that por-propriated to any public use, either by the tions had been sold to friends of members of the city or any one else, nor had it ever been filed city council, or to persons whom they desired to upon in any manner by said city, nor had it favor, the city refusing to sell to others on like terms, and that there was no uniform rule for ever asserted any proprietorship or control such sales; that certain of such lands had never over the same, except as the above stated. been occupied, appropriated, conveyed, or platted; The bill further charges that on the day last and plaintiff took possession for the purpose of aforesaid the plaintiff, a citizen of the Unitappropriating it under the town-site law, but defendant forcibly ejected him therefrom, and de-ed States and of Salt Lake City, went upon stroyed his property. Held, as against a general demurrer, a proper case for the intervention of a court of equity.

Appeal from district court, Third district. Suit by John H. Linck against Salt Lake City and others. Plaintiff appeals.

Arthur Brown, for appellant. Shecks & Rawlins, for respondents.

claims title by the right of occupancy, and then charges that, after taking actual possession of the premises and completing the survey, on February 13, 1888, the plaintiff caused a full and complete description of said

said land for the purpose of appropriating the same, and occupying it as beneficiary of said town-site law, as he might of right do, and with the intention of making valuable improvements thereon; that he caused a survey to be made thereof, and accurately, by posts driven in the ground, marked the boundaries or limits of the same upon the ground, the following being the description thereof. JUDD, J. The complaint in this case al- The bill then proceeds to set out the boundaleges that about the year 1871 the then may-ries of the lot or lots to which complainant or of Salt Lake City, territory of Utah, made an entry in the United States land-office at said city, under the act of the congress of the United States known as the "Town-Site Act," of a large tract of land, including in said entry the land hereafter mentioned; that the pat-premises to be filed for record in the office of ent of the United States was issued to the the recorder of Salt Lake county, together mayor in the usual form in such case in with a written statement and notice of his June, 1872, and thereby the mayor of said claim thereto as an occupant thereof, as the city and his successors in office became and owner of the said lands; that the complainwere invested with the legal title to the lands, ant began to make improvements, erecting but in trust only for those who were then or fences and inclosing parcels in good and subwho should thereafter become occupants and stantial inclosures; and that on the 16th of beneficiaries under the act of congress; that February plaintiff had at work on said parin the execution of the trust a large quantity cels of land a large force of men, engaged in of the land, and the lots so patented, were improving the said property, and was intendfound to be unclaimed by any person occupy- | ing to build houses thereon, and make a place ing the same at the date of said entry, and of residence of the same, and the materials much of the same still remained unoccupied therefor were contracted for and were ready and unclaimed at the time of filing of the bill to be transported to the land, when the dein this cause. The complaint then proceeds fendants Francis Armstrong, the mayor of

Salt Lake City, Alfred Salomon, the city mar-lands shall have been entered by him, shail shal, and a large force, claiming to be of the cause the same to be surveyed and laid out police of said city, and to be acting under the into suitable lots and blocks, and shail redirection of the city council, armed with rifles serve such portions as may be deemed necesand other deadly weapons, entered upon the sary for public squares, school-houses, or possession and occupancy of the plaintiff, hospital lots, and shall cause all necessary and, with threats to use the guns upon the streets, roads, lanes, and alleys to be laid out plaintiff if he resisted, assaulted the employés, through the same, a plot of which, properly and interrupted the work and improvements certified, shall be recorded in the recorder's of the plaintiff, and threw a temporary shel-office of the county in which the same may ter, erected for the men employed, off of the be situated; and the mayor of such city or premises, and demolished complainant's in-town, or judge as aforesaid, may sell the lots closure, and threatened to shoot any one who or blocks so laid out, and not reserved for should resist their violent and unlawful acts. public use, in suitable parcels, to possessor of These are all the allegations of the complain-adjoining lands, or to other citizens of such ant's bill that we deem it necessary to notice city or town, at a price not less than five dolat this time, further than to say that there is lars per acre, or fraction of an acre, and, in a prayer for general relief appended to the case two or more persons apply for the same bill, together with prayer for special relief. tract, they shall sell the same by auction to To this bill a demurrer was filed, whose sub- the highest bidder, and, if any such lands stance is that the bill does not state facts remain unsold at the end of three months sufficient to constitute a cause of action. from the date of filing the plat thereof for This demurrer was sustained by the court record, as required herein, the corporate aubelow, and the bill dismissed. Upon what thorities, or judge as aforesaid, shall have ground the trial judge acted in dismissing power and authority to sell such vacant lands this bill we are not informed, as there is at public or private sale, in such manner and nothing in the judgment to indicate the rea- on such terms as they may deem advisable sons therefor. for the best interests of the city or town, and The act of congress providing for the en- shall give deeds therefor to the several purtry by towns of the public lands of the United chasers." It would seem from the reading States, commonly called the "Town-Site of this statute that there could be no quesAct," is found at section 2387 of the Revised tion but that in all essentials it was a fair Statutes of the United States, and is as fol- attempt upon the part of the legislature to lows: "Whenever any portion of the public see that this trust which devolved upon the land's have been or may be settled upon and corporate authorities of Salt Lake City should occupied as a town-site it is law-be fully and fairly executed. The case, as ful, in case such town be incorporated, for we find it by this record, shows that, after the corporate authorities thereof

* * *

* *

*the occupants who were such at the date of the entry had received their titles, there remained undisposed of large quantities of land held by the city, and under and subject to the trust imposed in the act of congress above quoted; and yet this bill alleges, such being the fact, that the city not only refused to execute the trust imposed upon it by the act of congress in the manner prescribed by the legislature as to this unoccupied public land, but that when the plaintiff went upon it he was, by means such as are not allowable in a land of law and order, forcibly ejected therefrom, and his property in a most wanton and outrageous manner destroyed; that the defendant, through its city council, reserves to itself the right to sell lots to its friends, and such as it may choose to favor, but positively declines to lay out, as the act of the legislature requires, this public land into lots, and make any sale thereof to the public or otherwise, except such as may suit their purposes; and, further, the bill charges that the city claims such public lands as its own private property, to be disposed of to such persons and in such manner as it may deem proper to do.

to enter at the proper land-office, and at the minimum price, the land so settled and occupied, in trust for the several use and benefit of the occupants thereof, according to their respective interests, the execution of which trust, as to the disposal of the lots in such town, and the proceeds of the saies thereof, to be conducted under such regulations as may be prescribed by the legislative authority of the state or territory in which the same may be situated." The town-site of Salt Lake City, including the land in controversy, was entered under this act. The territory of Utah, in 1869, passed an act containing 12 sections, which purports to be an act in pursuance of the authority conferred in the act of congress above quoted, and for the purpose of executing the trust therein delegated by the United States. The first nine sections relate to the manner in which occupants who were such at the time of the entry of the mayor shall obtain their titles for the respective lots occupied by them, and the tenth section provides as follows: "If there shall remain any unclaimed lands with in the limits of such city or town, after the expiration of six months from the publication of the notice provided in section three, the corporate authorities, in cases where the lands shall have been entered by them, and the judge of probate, in cases where the

It is true that the statements and allega. tions of the bill filed in the cause are barely sufficient to compel upon the part of the city an execution of this trust, and yet its statements and allegations are quite too broad to

be met by a general demurrer. We think that this complainant, being a citizen of the United States of America and of Salt Lake City, and being an occupant, as he alleges himself to be, of the public lands included in the grant to the mayor, has the right to have the right imposed by the act of congress executed in his favor, and we think that the allegations of this bill make a case which a court of equity cannot disregard. We do not undertake to say at this time what are the exact rights of this complainant, nor do we undertake to say to what amount of land he may be entitled as an occupant, nor the exact extent of his interest as an occupant or beneficiary in the lands described; but what we do decide is that the demurrer in this cause does not meet the allegations of the bill, and we think the bill, as it now stands, does contain sufficient facts to move the conscience of a court of equity. We are therefore of the opinion that the decree of the court below sustaining the demurrer and dismissing the bill was erroneous, and must be reversed, and this cause is remanded to the court below, with leave to the complainant to make such amendments as he may be advised are proper, and a like leave to the defendants to file such answer as they may be advised their rights under the law authorize.

testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury." The perjury is alleged to have been committed while defendant was being examined on his voir dire to determine his competency to serve as a grand juror in the First district court at Provo. He was examined as to such competency under section 5 of what is known as the "Edmunds Law," which provides as follows: "That, in any prosecution for bigamy, polygamy, or unlawful cohabitation, it shall be sufficient cause of challenge, to any person drawn or summoned as a juryman or talesman, that he believes it right for a man to have more than one living and undivorced wife at the same time; or to live in the practice of cohabiting with more than one woman; and any person appearing or offered as a juror or talesman, and challenged on either of the foregoing grounds, may be questioned on his oath as to the existence of any such cause of challenge, and other evidence may be introduced bearing upon the question, or raised by such challenge, and this question shall be tried by the court." And that, while being so examined, he testified that he did not believe it right for a man to have more than

BOREMAN, J., and SANDFORD, C. J., con- one living and undivorced wife at the same

cur.

(6 Utah, 115)

UNITED STATES v. BROWN. (Supreme Court of Utah. January Term, 1889.)

PERJURY EVIDENCE.

Defendant was indicted for perjury, alleged to have been committed when examined to serve on the grand jury, in swearing that he did not believe in polygamy, and did not believe it right for a man to have more than one wife. It was proved that defendant was a teacher in the Mormon Church; that his duty was to teach its practices; that he had recently returned from a mission, and that polygamy was one of the doctrines of the church. Several witnesses, one of whom was counsel for the government, when defendant was examined, testified that defendant afterwards explained to them that he testified as he did because it was not a matter of belief with him, but that he knew that it was right to have more than one wife at the same time, etc. Held sufficient to convict, under Rev. St. U. S. § 5392, making it perjury for one to testify "to any material matter which he does not believe to be true."

Appeal from district court, First district. Shecks & Rawlins and S. R. Thurman, for appellant. Geo. S. Peters, U. S. Atty., and David Evans, Asst. U. S. Atty., for the United States.

HENDERSON, J. The defendant was convicted in the First district court at Provo of perjury committed in violation of section 5392 of the Revised Statutes of the United States, which is as follows: "Every person who, having taken an oath before a competent tribunal, officer, or person, in any case in which law of the United States authorizes an oath to be administered, that he will

time, and that he did not believe it right for a man to live in the practice of cohabiting with more than one woman, and that he did not believe in polygamy or a plurality of wives. This testimony is alleged to be false, the defendant moved for a new trial upon and the giving of it perjury. After verdict the ground that the evidence was insufficient to support the verdict. The motion was denied, and the defendant appeals from the order denying his motion.

The only question presented is, does the evidence warrant the verdict? In the case of U. S. v. Harris, 19 Pac. Rep. 197, where the same question was presented, this court stated the principles which shall govern as follows: "The jury are the judges of the facts, and, in order to justify this court in reversing the order refusing a new trial, it must appear that there was an entire absence of evidence, or that the evidence so clearly preponderates in favor of the prisoner as to suggest the possibility that the verdict was the result of misapprehension or partiality. It is not enough that the court might have arrived at a different result." We are satisfied with the rule thus stated, and it only remains to test the case at bar by it. It is not contended that the evidence was sufficient to establish the fact that the defendant testified as charged in the indictment, but the claim is that the evidence failed to show that it was false. The evidence that the defendant testified as charged in the indictment consisted, among other things, of the testimony of the stenographic reporter who attended and took

the evidence when the defendant was exam- | ernment at the time defendant was examined, and his transcribed minutes are in full ined, testified: "I am acquainted with dein the record, from which it appears that the fendant, and have been for a great many. defendant was called as a grand juror, and years. I examined him as to his qualificawas challenged by the government counsel tions to sit as a grand juror in the February upon the ground that he believed it right for term, 1888. I afterwards, in May of the a man to have, living and undivorced, more same year, saw him on the train between than one woman at the same time, and to Lehi and Provo. I asked him how he could live in the practice of cohabiting with more conscientiously answer that he did not bethan one woman; whereupon he was sworn lieve polygamy was right. He said because and examined, and, in an examination which it was not with him a matter of belief. He covers several pages, and in which the court knew it was right, for he had a testimony and counsel for the government both partici- which gave him a knowledge that it was pated, he repeatedly testified that he did not right. There was a good deal said to the believe it to be right; that he believed it to same effect. The discussion was warm, but be wrong, both legally and morally; and that friendly." Lars O. Lawrence testified: "I he did not believe in polygamy. The ques- am acquainted with defendant. I was a tions were repeated to him many times over, member of the grand jury of this court, Feband in various forms, and the same answer ruary term, 1888. I afterwards saw defendrepeated. To show the falsity of this testi- ant at Spanish Fork. Talked with him about mony, evidence was given that the defend- his examination as a grand juror. He said ant, a short time before his examination, had he knew polygamy was right. He did not advocated the doctrine of polygamy, and only believe it; he had knowledge of the averred his belief that it was right; also that fact." he was, and for many years had been, a mem- It will be seen from this statement of the ber in good standing in the Mormon Church, testimony that evidence was given showing being "A Seventy;" that the duty of "A that defendant asserted a belief contrary to Seventy" was to teach and preach the doc- his testimony, and in accord with the doctrines of the church; that he had lately re- trine of the organization of which he was an turned from a mission; that polygamy and active member a short time before his testiits practice is one of the acknowledged doc-mony was given, and that, when he was aptrines of the church; and a number of wit-proached reprovingly by members of his nesses testified that after he had given the testimony complained of, and it had been known, and he was questioned as to why he so testified, he explained that he knew it was right;" that it was not a matter of mere belief; that it was absolute knowledge with him that it was right. Of this latter class of testimony one Brigham Taylor testified: "I am acquainted with defendant. Have known him for several years. I am a dentist at American Fork City, engaged in my profession, and was at the time defendant was examined as a grand juror in February, 1888. After that defendant called at my office. Passed the time of day, and asked me why I did not call to see him. I told him it was because what he had done at Provo. I asked him why he answered the question the way he did when he was examined as a grand juror. He said that he did not believe only in polygamy and that it was right; he knew it was right. Belief with him had become a knowledge of the rightfulness of polygamy." Joseph Emprey testified: "I know the defendant. Live in the same town where he resides. He called at my house as a block teacher a short time after he was at Provo on the grand jury business. I had a copy of the Enquirer, and had been reading defendant's examination as a grand juror. I asked him why he said he did not believe in polygamy and colabitation with more than one woman. He said because he knew it was right. It was no longer a matter of belief. Defendant is a member of the Mormon Church, and returned from a mission about a year and a half ago.' David Evans, who was counsel for the gov

church and others for giving the testimony he did, he asserted a belief contrary to his testimony, and undertook to explain that it was past belief, and was actual knowledge. It is unnecessary for us to consider this claim, for he testified that he "believed it was wrong," and the jury were justified in finding that this claim was made in bad faith. It is claimed by counsel that the testimony only shows that two inconsistent statements were made by the defendant,-one under the sanction of an oath, and another without it,— and that the presumption is that the statement under oath is true, and must prevail. We think there were strong circumstances shown to corroborate the statement made out of court, and before he was examined, and that the statements made by him afterwards were in the nature of confessions. If this claim of the defendant is correct, then it would be impossible to show that the testimony is untrue, unless he had been actually guilty of polygamy or unlawful cohabitation, and such persons are disqualified from serving on juries by other provisions of the statute than those above quoted; but the statute goes beyond this, and disqualifies persons having a certain belief, and authorizes the court to make inquiry under oath of persons presented or proposed as jurors as to that belief. If the testimony in this case does not fairly tend to show that the testimony given is false, it is hard to be shown, and the statutes would have no force whatever. The case was fairly and carefully given to the jury by the learned judge who presided at the trial; indeed, no complaint is made of any