15 Reporter, No. 5, 140; Griffith v. Frazier, 8 Cranch 23; Williams on Executors (Am. notes by Perkins), 632, notes 631. The jurisdiction of the Probate Court of Doniphan County to issue letters of administration is derived from the provisions of the statute and can be only exercised under the circumstances and in the cases provided for thereby. Therefore, if the deceased, not being an inhabitant or resident of this state at the time of her death, left no estate to be administered within this state and none came in afterward, that court, under the statute, had no jurisdiction to grant administration. But it is said the probate court had jurisdiction to ascertain whether as a fact the deceased left any estate in Kansas, and its judgment granting letters of administration is conclusive until revoked or reversed. Where the jurisdiction of the court is conceded, as a rule, its judgment is conclusive of all matters involved; but if the jurisdiction be disproved then the judgment is void for all purposes. Mastin v. Gray, 19 Kan. 458, and the cases there cited. Melia v. Simmons, 45 Wis. 334; Moore v. Smith, 11 Rich. Law. (S. C.) 560. Now the Probate Court of Doniphan County had no authority to grant letters of administration, unless the deceased left an estate in that county, and it will not do to say that the finding of that fact by the court is conclusive of its own jurisdiction; for this would be, to use a common expression, "reasoning with a circle." The probate .court of that county, we suppose, assumed that the deceased had left an estate to be administered and thereupon appointed the plaintiff administrator. But the letters in this case are no more valid, and the appointment of an administrator no more effective, than if the Probate Court of Doliphan County had granted letters of administration upon her estate, when, in fact, she was not dead. In either case, the appointment of an administrator would be void for all purposes; and as in this case the jurisdiction of the probate court rests upon the fact of an estate belonging to the deceased in Kansas. If the defendant can clearly show that the deceased died without leaving any estate of any kind, it must result that the entire proceedings before the probate court were without jurisdiction and void. D'Arusmart v. Jones, 11 Cent. L. J. 253; Thompson v. Whitman, 18 Wall. 457; Jochemsen v. Bank, 3 Allen 87.

It has already been decided by this court that an administrator appointed in another state or territory can maintain an action in this state under § 422 of the code, and, therefore, if the probate courts of this state have no jurisdiction to grant letters of administration upon the estate of the decedent, and the probate court of any other state has that jurisdiction the foreign administrator thus appointed can prosecute the action. Railway Co. v. Cutter, supra.

Judgment affirmed.

RELIGIOUS CORPORATION DISTINCT FROM CHURCH.

(Michigan Supreme Court. June 22, 1883.)

HARDIN v. BAPTIST CHURCH.

A religious corporation has nothing to do with the church represented by it, except as it provides for its temporal wants. It cannot alter the church faith or covenant; it cannot receive or expel members, or prevent the church, as distinguished from the corporate body, from receiving or expelling v ́homsoever that body may see fit to receive or expel; and consequently no action can be maintained against the corporation for an alleged expulsion of a member from the church. ERROR to the Circuit Court of Wayne County.

COOLEY, J. The preliminary objection to the maintenance of this action is so unmistakably fatal that there can be no occasion or excuse for considering any other. The plaintiff, who, previous to February 2, 1881, was a member, in good standing, of the Second Babtist Church of Detroit, brings suit against the defendant to recover damages for having been, on that day, unwarrantably and without trial, upon charges, expelled from membership. The suit is against the corporate body known in law as "The Trustees of the Second Baptist Church of Detroit," and which was organized, by voluntary association, under authority conferred by the revised statutes of 1838. The provision contained in that code is substantially the same which has always existed in this state, and which is simple and easily understood. Persons desirous of forming themselves into a religious society, sign articles of association for the purpose, agree upon a name, elect trustees, and put their articles on record, when duly perfected. They thereby become a corporation by the name agreed upon, and may take, hold, and convey property, and exercise the ordinary func

tions of corporate bodies. The associates are not, necessarily, professors of any particular belief or faith, or members of any church; and corporate succession is kept up by conferring the privileges of corporators on all who regularly attend worship in the society, and contribute to its support. And the trustees, who are to manage the temporal affairs of the corporation, may, or may not be church members.

Connected with the corporation, the statute contemplates that there will be a church, though, possibly, this may not be essential. In this case there is one. The church has its members, who are supposed to hold certain beliefs and subscribe some covenant with each other, if such is the usage of the denomination to which the church is attached. The church is not incorporated, and has nothing, whatever, to do with the temporalities. It does not control the property or the trustees; it can receive nobody into the society and can expel nobody from it. On the other hand, the corporation has nothing to do with the church, except as it provides for the church wants. It cannot alter the church faith or covenant, it cannot receive members, it cannot expel members, it cannot prevent the church receiving or expelling whomsoever that body shall see fit to receive or expel. This concise statement is amply sufficient to show that this suit has no foundation. The corporation is sued for a tort which it neither committed nor had the power to prevent, and which has occurred in a proceeding where the interference of the corporation would have been an impertinence.

But it is said that the church is an integral part of the corporation; or, rather, that it is the corporation in its spiritual capacity Its being an integral part of the corporation proves nothing. Counties, towns, and school-districts are integral parts of the state, but the state is not, for that reason, liable for their torts; and as to spiritual capacity, the corporation has none; it is given capacity in respect to temporalities only. If the corporation had assumed to expel this plaintiff from the church, she might treat its action with contempt; but as she makes no complaint of wrongful corporate action, we must assume that the corporation has never invaded her rights. If the church has done so, the church alone is culpable. The distinction between church and corporation, in these cases, is

sufficiently explained in the following authorities: Baptist Church v. Witherell, 3 Paige 296; S. C. 24 Amer. Dec. 223; Lawyer v. Cipperly, 7 Paige 281; Robertson v. Bullions, 11 N. Y. 243; Bellport v. Tooker, 29 Barb. 256, and 21 N. Y. 257; Burrel v. Associate Reformed Church, 44 Barb. 282; Miller v. Gable, 2 Denio 492; Ferraria v. Vasconcellos, 31 Ill. 25; Calkins v. Cheney, 92 Ill. 463; Keyser v. Stansifer, 6 Ohio 363; Shannon v. Frost, 3 B. Mon. 253; German, etc., Cong. v. Pressler, 17 La. Ann. 127; O'Hara v. Stack, 90 Pa. St. 477; Sohier v. Trinity Church, 109 Mass. 1; Walrath v. Campbell, 28 Mich. 111. See also Hale v. Everett, 52 N. Y. 1.

Judgment affirmed, with costs.

BOOK NOTICES.

Sawyer's United States Reports, Vol. 8. A. L. Bancroft & Co., San Francisco.

sors.

1883.

This volume is larger and of more value than its predecesThere is one feature about it which recommends it to the profession, and that is the shortness of its opinions. The only long opinion is that rendered by justices Fields and Sawyer in the railroad tax cases; this opinion fills eighty-five pages. Among the other important cases in this volume may be mentioned those deciding the following points: Measure of damages for the wrongful detention of a certificate of deposit, p. 17; points of practice in suits against corporations by stockholders, pp. 51, 435; breach of contract to form partnership, p. 110; promissory note payable in pounds sterling, holding that under § 3565, R. S. U. S., the value of a pound sterling is four dollars eighty-six cents and six and one-half mills, instead of four dollars eighty-four cents and fortyeight hundredths, as under the act of 1857, p. 167; sealed letters do not fall under that class of matter which is non-mailable because of obscenity, p. 194; residents of territories can not sue in the federal courts as residents of states, p. 316; when wealth of defendant may be shown in action for damages, p. 488.

DIGEST OF CASES.

Banking-Officers-Bondsmen— When Liable. Such interchange of assistance, between officers of a bank, as temporary need may require, is fairly within the contemplation of the appointment of such officer, and the sureties on his bond are liable for a default made while temporarily filling the place of another officer. Detroit Saving's Bank v. Zeigler. (Mich.)

Common Law-Sister State.-In absence of evidence to the contrary, the common law is presumed, by the court, to prevail in a sister state. Cahalan v. Monroe. Ala., Dec. Term 1882; 16 Rep. 168.

Contract-Evidence-Previous Conversation Leading to a Verbal Contract Admissible.—In an action to recover the price of wheat bought by the plaintiffs, as factors for the defendants, for future delivery, where the defense is that the transaction was a gambling contract, no delivery being intended, but only an adjustment of differences in price, it was held, error to refuse to let the defendants testify as to conversations had by them, with the plaintiffs, before the orders for the purchase were actually given, as throwing light upon the nature of the transaction, it not being the last words spoken that, in all cases, gives character to the transaction. Brand v. Henderson. Iowa, June 16, 1883. Chicago Legal News, Aug. 4.

Contract-Specific Performance-Not Decreed when.—Courts of equity never decree the specific performance of a contract when the decree will be a vain and imperfect one. Werden v. Graham. Ill., June 16, 1883.

Chicago Legal News, Aug. 4.

Corporation-Franchise—Sale on Execution.—In the absence of any provision therefor, either in the general law or the charter of a company, the franchise cannot be levied upon and sold for debt. N. O. S. F. & L. Ry. Co. v. Delamore. La., Dec. 1882. 16 Rep. 173.

Court-Even Division of.-Where a court is composed of an even number of judges, and is evenly divided, the motion fails, and allowance of injunction by one over another is error. Madlam's App. Pa., June 4, 1883. 16 Rep. 186.

Criminal Law-Assault-Deadly Weapon-Trespasser-Necessity.-The use of a deadly weapon, to resist the encroachment of a trespasser, is not unlawful, unless it be unnecessary. The question of necessity is one of fact for the jury. Dinan v. Gibbon. Cal., May, 1883. 16 Rep. 168.

Damages-Excessive-Review.-A judgment will not be reviewed upon the ground that the damages are excessive. The Wabash Ry. Co. v. McDaniels. U. S. S. C., c. Term, 1882. Washington Law Rep., July 23,