COt"rcuit Oourt, 8. D. Ohio, W. D. October, 1881.)
1. INMATES OF SOLDIERS' HOMES-NOT IN MILITARY i::lERVICE OF UNITED STATES -lNDICTMEN'£ FOR APPROPRIATING CLOTHING OF INMATES-REV. ST. H 5438, 5439. Inmates of the National Military Home at Dayton, Ohio, are not in the military service of the United i::ltates, and clothing issued to them is not used in such service. So held, on demurrer to an indictment under section 5439, Rev. St., charging the defendant with applying to his own use an overcoat which had been issued to an inmate of such home.
On Demurrer to Indictment.
GhanninyRicha,rds, U. S. Dist. Atty., contra. SWING, D. J. The indictment is drawn under section 5439 of the Re'VisedStatutes. The two counts, differing somewhat in form, charge that the defendant has applied to his own use an overcoat which had been issued to an inmate of the National Military Home at Dayton, to be used by him for the military service of the United whether States. A demurrer to this indictment raises the clothing so issued to inmates of that institution is within the prohibition of that section. The preceding section (5438) prohibits the purchase of clothing, etc., from any soldier or other person called into or employed in the military service of the United States, such soldier or person not having the lawful right to sell the same. This section (5439) then prohibits any person from knowingly a,pplying to his own use any clothing or other property of the United States fur. nished or to be used for the military service. Under section 5438 the clothing must be purchased from a :gerson "in the military service;" under section 5439 it must be clothing or other property of the United States "furnished or to be used for the military service." The indictment, it is true, charges in one count that the overcoat in question was "furnished for the military service," and in the other that it was "to be used for the military service," but in each it appears it had been issued to an inmate of the home. It was claimed in argument on behalf of the government tha,t these military homes are a part of the military establishment, and clothing issued to the inmates is furnished and used for the military service, It is clear that the inmates of these homes are not in the military
'!'Reported by J. C. Harper, Esq., of the Cincinnati bar.
Samu(!t Gr(-lighead, for the demurrer.
IN BE M'KENNA.
service. It. is not claimed that section 5438 applies to the purchase of clothing from them; nor do I think that the clothing issued to them is used in the military service of the United States. Congress could probably prohibit the purchase of clothing from these inmates, and punish anyone applying it to other purposes than that for which it is issued; but the law in force does not apply to it, and the demurrer must be sustained.
HUSBAND AND WIFE CoNSTRUCTION.
(DiBfIrict Oourt, W. D. Tennessee. September 30, 1881.)
SETTLEMENT ON THE WIFE -
It is a general principle, established by the authorities, that whenever a settlement is made upon a married woman by will, deed, or other conveyance, or by statute, the husband's interests are unaffected, further than the terms of the instrument or statute, either directly or by necessary implication, require; and it is well-settled that neither exclusion during the life of the wife from the rents and profits, restrictions upon his powers of alienation, or the grant to her of powers of alienation, act to destroy his interest after her death, unless the settlement explicitly does so by appropriate terms, or by the exercise of the powers conferred his interest is defeated during her life. . 2. 8ll1B SUBJECT-BANKRUPTcy-TENANOY BY THE CuRTESy-TENNESSEE CoDB, H 2481, 2482-PBOPERTY EXEMPT-REv. ST. § 5045-AssIGNEE'S TITLE-liUBSEQUENTLY-AcQUIRED PROPERTY.
A state statute provided that the interest of a husband in the Teal estate of his wife should not, during her life, be sold or disposed of by virtue of any judgment, decree, or execution against him, nor should the husband and wife be ejected or dispossessed of the real estate of the wife by virtue of any such judgment, sentence, or decree, nor should the husband sell his wife's real estate during her life without her joining in the conveyance in the manner prescribed by law in which married women shall convey lands. The wife was seized of lands when the husband became bankrupt, there being issue of the marriage. Held, that the tenancy by the curtesy initiate passed to the assignee in bankruptcy, subject to the statutory right of the husband and wife to continue to hold the land during her life. lield, also, that this state statute and the bankruptcy act did not exempt from the operation of the bankruptcy the whole tenancy by the curtesy for the life of the'husband, but only so much as was measured by the life of the wife, and that on her death, pending the bankruptcy proceedings, the assignee was entitled to take the land for the remainder of the husband's life. Held, further, that there is nothing in the character of the estate of the husband in his wife's lands at common law, nor as modified by this statute, to prevent its passing to the assignee, subject to the statutory exemption during the wife's life, and that neither at commou law nor under the statute was it property acquired by the death of the wife subsequently to the bankruptcy.