"Provided always that these presents are upon the express condition that the aforesaid premises shall not, nor shall any part thereof, or any building or buildings thereon erected or to be erected, be at any time hereafter used as a tavern or public house of any kind."

In construing the deed the court said:

"Although the words of the clause in question are apt to describe a condition subsequent reserved by a grantor, we are in no wise obliged to take them literally. In the consideration of what, by the use of these words, was imported in the conveyance, we are at liberty to affix that meaning to them which the general view of the instrument and of the situation of the parties makes manifest. Whether they created a condition or a covenant must depend upon what was the intention of the parties, for covenants and conditions may be created by the same words."

The language was construed as a covenant, and it is evident from the opinion of the court that the fact that the clause gave no right to re-enter upon breach had great weight with the court in arriving at such conclusion. On this point the court said (page 371, 115 N. Y., page 147, 22 N. E., 5 L. R. A. 422, 12 Am. St. Rep. 809):

"In this connection it may be noted that there is no clause in the deed giving the right to re-enter for conditions broken. While the presence of such a clause is not essential to the creation of a condition subsequent by which an estate may be defeated at the exercise of an election by the grantor or his heirs to re-enter, yet its absence to that extent frees still more the case from the difficulty of giving a more benignant construction to the proviso clause. The presence of a re-entry clause might make certain that which, in its absence, is left open to construction. The absence of such a clause may have its significance in connection with the circumstances of the case and the intent to be fairly presumed therefrom."

There are also numerous cases in which clauses in a deed which in terms imported conditions subsequent were nevertheless construed as covenants; but in all of such cases no clause or reverter, so far as we have noticed, existed. Skinner v. Shepard, 130 Mass. 180; Avery v. N. Y. C. & H. R. R. Co., 106 N. Y. 142, 12 N. E. 619; Rawson v. District No. 5, 7 Allen, 125, 83 Am. Dec. 670; Sohier v. Trinity Church, 109 Mass. 1; Episcopal City Mission v. Appleton, 117 Mass. 326. In these cases the existence of a clause of re-entry after breach would certainly have compelled the courts to arrive at different conclusions. Sufficient authorities have been cited to show that the absence or presence of a clause of reverter has a most important, although not a controlling, influence in determining whether the language in the deed shall be construed as a covenant or condition.

In the deed in evidence in this action, such a clause is found. It reads as follows:

"And if at any time the said party of the second part, successors or assigns, shall knowingly cause or permit the premises hereby conveyed or any erection thereon to be used for any of the purposes hereinbefore provided against, and forbidden, or shall knowingly cause or permit any such intoxicating beverages or fluids to be sold or otherwise disposed of thereon, then and in such case the right and title hereby conveyed shall cease and determine, and the said tract of land and premises, and all right and title therein, shall revert and return to, and become vested in the said party of the first part, his heirs and assigns, in all respects the same as if this conveyance had not been made." 139 F.-5

In view of this clause, and in submission to the trend of the authorities above cited, we are compelled to hold that there are matters set forth in this deed, the nonobservance of which by the grantee was intended to work a forfeiture of its estate. This conclusion seems irresistible. But, granting this, defendant's counsel nevertheless maintain that the provisions of the deed admitted to have been broken are not within the terms of the reverter, and hence their breach did not work a forfeiture. It is quite apparent that the clause of re-entry is restrictive, and that it was not intended to embrace all of the preceding undertakings of the grantee; or, stated in another way, it was intended that a breach of certain of the grantee's undertakings should forfeit the estate, while a breach of certain other undertakings should not. Close observance of the paragraph immediately preceding the reverter shows that it contains prohibitions not only well within the language of the reverter, but provisions which fully meet and satisfy its requirements, and all of them. The paragraph referred to provides that the premises conveyed shall not be used for other than railroad purposes, such as railroad tracks, switches, station and freight houses, locomotive berths, and repair shops, or for the sale or other disposal of any cider, ale, beer, etc., or other intoxicating fluid or beverage whatever. We think that the contention of the defendant in respect to what is included in the clause of re-entry is correct; the language prohibiting the use of the land for other than railroad purposes, and for the sale of intoxicating beverages, are directly within its terms, and there are no other provisions which are. The language of the clause of re-entry is restricted to prohibiting the use of the land for "any of the purposes hereinbefore provided against and forbidden." The grant itself, it will be borne in mind, was made for railroad purposes only, and by the paragraph immediately preceding that providing for a re-entry it was reiterated that the premises were not to be used for any other than railroad purposes, describing such purposes, nor were they or any erections thereon to be used for the sale of intoxicating liquors. These provisions are, as above stated, within the reverter, and their reiteration makes it clear that they were considered by the parties the important matters, which, if broken, should work a forfeiture of the estate. The clauses which relate to the stoppage of all trains which are stopped at any other station, etc., and to the erection of as large and complete a station house thereon, etc., cannot, in our judgment, be called uses of the land for "purposes forbidden." To so include them would strain the meaning of the terms employed. The only circumstances apparently which would warrant their inclusion would be the presence of the reverter in the deed, without other undertakings on the part of the grantee upon which it could operate. We have already said that courts invariably hold, if possible, that undertakings in deeds are covenants, rather than conditions, and they will not hold them to be conditions if by any proper construction such a conclusion can be avoided. Following this principle of interpretation, we conclude that the provisions of the deed under consideration, the breach of which works a forfeiture of the

title, are those forbidding the use of the land for other than railroad purposes, and the inhibition against the sale of intoxicating beverages, and that the specific mention of these provisions excludes all others not mentioned, including those admitted to have been broken.

We therefore find for the defendant.

INSURANCE CO. OF NORTH AMERICA v. FREDERICK LEYLAND & CO., Limited.

(District Court, E. D. Pennsylvania. June 16, 1905.)

No. 120.

ADMIRALTY-SERVICE OF PROCESS ON AGENT-FOLLOWING STATE STATUTE. Service of monition in admiralty may be made on an agent of a nonresident defendant in conformity with a state statute authorizing such mode of service in actions at law or in equity.

[Ed. Note. For cases in point, see vol. 13, Cent. Dig. Courts, § 917.] In Admiralty. On motion to set aside service of monition. Francis S. Laws and John F. Lewis, for libelant.

Howard H. Yocum, N. Dubois Miller, and Biddle & Ward, for respondent.

J. B. MCPHERSON, District Judge. This is an action in personam, and the motion to set aside the service of the writ is based upon the averment that there is no statute, or rule of court or practice, authorizing service upon the agent of a nonresident defendant. It seems to have been so decided some years ago in this district, but since that decision the question has been before the Supreme Court of the United States in Re Louisville Underwriters, 134 U. S. 488, 10 Sup. Ct. 587, 33 L. Ed. 991. In that case a Kentucky corporation filed a libel in personam against the Louisville Underwriters, an insurance company of the same state, in the district court of the United States for the Eastern District of Louisiana, and the citation was served upon an agent of the defendant, who had been appointed in obedience to a statute of Louisiana, which required foreign insurance companies to have an agent in the state. upon whom process could be served. A petition to prohibit the District Court from entertaining jurisdiction of the libel was denied by the Supreme Court of the United States, and Mr. Justice Gray, delivering the opinion of the court, upheld the validity of the service, saying, inter alia:

"In the present case the libelee had, in compliance with the law of Louisiana, appointed an agent at New Orleans upon whom legal process might be served, and the monition was there served upon him. This would have been a good service in an action at law in any court of the state or of the United States in Louisiana (citing cases). And no reason has been or can be suggested why it should not be held equally good in admiralty."

The Circuit Court of Appeals for the Ninth Circuit, in Doe v. Springfield Boiler Co., 104 Fed. 684, 44 C. C. A. 128, has made a

similar decision. The facts of that case are identical with the facts now under consideration, for the monition there was served under the section of the California Code of Civil Procedure that provides for the service of a summons upon a foreign corporation or nonresident joint-stock company or association. While the service was set aside upon the ground that the person served was not an agent of the defendant corporation, the Court of Appeals expressly declared that:

"Service of monition in admiralty may be made under the provisions of a state statute regulating the mode of service in actions at law or in equity."

In the present case the service was made in strict accordance with the provisions of the Pennsylvania statute of July 9, 1901 (P. L. 615) § 2, cls. e, g.

The motion to set aside the service is therefore refused.

Ex parte VILES.

(District Court, W. D. Washington, N. D. June 27, 1905.)

No. 3,056.

INDIANS-SELLING LIQUOR TO ALLOTTEES-EFFECT OF AGREEMENT WITH NEZ PERCES.

The provision of article 9 of the agreement made May 1, 1893, with the Nez Perce Tribe of Indians, confirmed by Act Aug. 15, 1894, 28 Stat. 330, c. 290, that allottees of such tribe, whether under the care of an Indian agent or not, shall be subject for a period of 25 years "to all the laws of the United States prohibiting the sale or other disposition of intoxicants to Indians," can apply only to Indians who received their allotments and acquired their rights of citizenship pursuant to such agreement, and cannot affect the status of one who had previously acquired such rights, and had become subject to state laws, so as to give force and validity as to him, to the unconstitutional act of January 30, 1897, 29 Stat. 506, c. 109, making it a crime to sell liquor to Indian allottees.

Application for a writ of habeas corpus to discharge the petitioner from imprisonment under a sentence for selling liquor to an Indian to whom an allotment of land had been made within the Nez Perce Indian Reservation, in violation of the act of Congress of January 30, 1897 (29 Stat. 506, c. 109), which makes it a criminal offense to sell intoxicating beverages to Indian allottees. Petitioner discharged.

A. H. Denman, for petitioner.
Jesse A. Frye, U. S. Dist. Atty.

HANFORD, District Judge. The petitioner, being under sentence to serve two years in McNeil's Island Penitentiary for having sold liquor to an Indian to whom an allotment of land had been made, and relying upon the recent decision of the Supreme Court. in the case of Albert Heff, 197 U. S. 488, 25 Sup. Ct. 506, 49 L. Ed.

declaring the act of Congress under which he was sentenced (Act Jan. 30, 1897, 29 Stat. 506, c. 109) to be unconstitutional and

void, filed his petition in this court for a writ of habeas corpus, alleging that his incarceration in the penitentiary is unlawful. The government, by an answer to the petition, alleges that the Indian to whom the petitioner sold liquor is a Nez Perce Indian, having an allotment of land within the Nez Perce Indian Reservation, in Idaho, and sets up as ground for distinguishing this case from the Albert Heff Case article 9 of an agreement, signed by the principal men and male adults of the Nez Perce Tribe of Indians on the 1st day of May, 1893, which agreement was confirmed by an act of Congress dated August 15, 1894 (28 Stat. 330, c. 290). Article 9 of the agreement reads as follows:

"Art. 9. It is further agreed that the lands by this agreement ceded, those retained, and those allotted to the said Nez Perce Indians shall be subject, for a period of twenty-five years, to all the laws of the United States prohibiting the introduction of intoxicants into the Indian country, and that the Nez Perce Indian allottees, whether under the care of an Indian agent or not, shall, for a like period, be subject to all the laws of the United States prohibiting the sale or other disposition of intoxicants to Indians."

The record shows that the petitioner was indicted by a grand jury in the United States District Court for the District of Idaho. The indictment contains two counts, the first of which charges him with having unlawfully introduced spirituous liquor into the Indian country, to wit, the Nez Perce Indian Reservation; and the second count charges him with having sold spirituous liquor, in violation of law, to a Nez Perce Indian to whom an allotment of land had been made. A plea of not guilty having been entered, the petitioner was tried, and the jury returned a verdict finding him "guilty as charged in the indictment," and thereupon the court rendered a final judgment in the following words:

"Now, therefore, the said defendant having been convicted of the crime of selling liquor to an Indian, it is hereby considered and adjudged that the said defendant, George Viles, do pay a fine of two hundred dollars, and that he stand committed until said fine is paid, and that he be imprisoned and kept in the U. S. Penitentiary at McNeil's Island, state of Washington, for the term of two years; and it is further ordered and adjudged that said defendant be, and is hereby, remanded to the custody of the United States marshal for Idaho, to be by him delivered into said prison, and to the proper officer or officers thereof."

The record does not show what disposition was made of the first count in the indictment, charging the petitioner with the offense of introducing liquor into the Indian country; but, from the description of the offense, there is a reasonable inference that both counts of the indictment related to one and the same transaction, and that by the judgment of the court he was sentenced to be punished only for the crime of selling liquor to an Indian who is described in the indictment as an Indian to whom an allotment of land had been made, the title to which was held in trust by the government of the United States. In a case prosecuted under section 2139, Rev. St. U. S., an indictment, to be sufficient, would have to aver that the Indian was under charge of an Indian agent or superintendent of the United States; and until the act of 1897 it was not criminal, under the national laws, to sell liquor to Indians not under the charge of such agent or superintendent. Therefore the judgment has no