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Central Law Journal.

of congress on this subject, and cited author. ities to show that the provision, “and such instrument, document or paper shall be

deemed invalid and of no effect,” required a ST. LOUIS, MO., NOVEMBER 2, 1900.

reference to the previous provisions in the

section to ascertain the meaning of the word The question as to the validity of instru- "such," holding that it only applied to those ments which, under the act of congress, re

on which stamps had been omitted with inquire a revenue stamp, but upon which tent to evade the provisions of the law. In through inadvertence or otherwise, stamps Moore v. Quirk, 105 Mass. 49, the case was have not been placed, has given rise to con- expressly affirmed. In Black v. Woodrow, siderable speculation and contention. The 39 Md. 194, this court held that an instruCourt of Appeals of Maryland has recently

ment subject to the act of 1866 was not void passed upon the question as to the failure to or inadmissible in evidence, if the omission afix stamps to an assignment of mortgage- to stamp it was without intent to evade the Wingert v. Zeigler. The act of congress provisions of the act. Many other authorprovides a penalty for one who shall issue as- ities might be cited, including decisions of signments of mortgages and other enumerated the Supreme Court of the United States, to ins'ruments without affixing revenue stamps

show that in regard to some of the earlier and canceling the same as required by law, acts of congress such was the interpretation ; with intent to evade the provisions of the

and we think this provision in the present statute, and provides that any such instru- law should be so construed, and that it was ment shall be deemed invalid. It was held intended to apply only to those cases where by the Maryland court that "such instru- the stamp was omitted to evade the provisment” refers only to one left unstamped with

ions of the law. intent to evade the law, and hence where an assignment of a mortgage was left unstamped The twenty-third annual meeting of the tbrough inadvertence, and not willfully, a American Bar Association was held at Sarasale thereunder was validated by the subse- toga, N. Y., on Wednesday and Thursday, quent affixing and canceling of the proper August 29th and 30th. The President, Hon. stamps, and hence the purchaser at such sale Charles H. Manderson, presided. His adacquired as good a title as though the assign- dress was notable in that it contained a letter ment had been stamped when made, where from Hon. Jobo Hay, secretary of state, sab. no rights of other persons were acquired in mitting an interesting memorandum prepared the meantime. The court very properly by Mr. Edmond Kelly, a delegate from the says that it is scarcely possible that congress

United States to the international congress intended that one who deliberately and in- of law, now sitting at Paris, in which he sets tentionally violated the law might escape by forth considerations regarding the creation paying “a fine not exceeding fifty dollars, of an international bureau for the collection while one who was perfectly innocent of so and utilization of the world's legislation, doing should have his title deed or other val- which, he suggests, shall be created by a uable paper declared invalid and of no effect. congress of all nations to sit in Paris during Under the statute, it is the duty of the 1901. Mr. Manderson gave his full reply, grantor in the deed, or the party issuing, ending as follows: “I heartily approve the selling, or transferring the instrument, docu- suggestion of Mr. Edmond Kelly and hope ment, or other paper, to affix the stamp; and, the department of State will lend its counte. if the construction contended for be followed, nance to the project that the congress of ina designing grantor, taking the chances of a ternational law shall extend to the nations of prosecution, might impose on an innocent the world an invitation for a congress to crepurchaser, whose title would be worthless, ate the proposed bureau.” Mr. Manderson although he was absolutely free from any deprecated in strongest terms the increasing suspicion of wrongdoing or intention of evad-tendency to over-legislate and gave these ing the law. In Green v. Holway, 101 Mass. statistics: "Few realize that there were 243, Justice Gray reviewed the various acts enacted in 1899 four thousand eight hundred

and thirty-four general and nine thousand sociation the thanks of my father's family for three hundred and twenty-five local, special the resolution of which you send me a copy. or private laws, making a total (hardly en- It needs no words of mine to tell you how titled to be called a grand total) of fourteen warm my father's regard was for the bar of thousand one hundred and fifty-nine laws in the United States among the members of the States alone. The proportion is as large which he was proud to count many dear perin 1900, the only relief being that fewer States sonal friends. The resolution you send me held legislative sessions." There were ad- will be preserved by me with care and pride. dresses on "Ultra Vires Corporation Leases,”

Believe me, yours sincerely, by Edward Harriman, of Chicago; on "Tbe

Charles RusselL.' March of the Constitution," by Hon. George R. Peck, of Chicago; on “A Hundred Years of American Diplomacy," by Hon. John

NOTES OF IMPORTANT DECISIONS. Bassett Moore, of New York City. Mr.

TRUST DEED · ACCEPTANCE Edward Wetmore, of New York City, was

VALIDITY

TENDER-RIGHTS OF ASSIGNEE.-Davies v. Dow, eleeted president for 1901.

83 N. W. Rep. 50, decided by the Supreme Court The following resolution regarding the of Minnesota, was an action by an assignee in indeath of Lord Russell was unanimously

solvency to recover possession or the value of a adopted by a rising vote. “The American

stock of merchandise upon which the defendant

bad a mortgage, but the lien of which the asBar Association bas heard with peculiar sor.

signee claimed had been discharged by a tender row of the death of Lord Russell, of Killowen, of the amount thereof before action brought. Lord Chief Justice of England, and desires The tender was made prior to the change of the to enter upon its records some permanent ex.

rule as to keeping it good made by Laws 1897, ch. pression of honor and esteem for his memory.

292, $ 8. It appeared on the trial that the as

signee, prior to making an assignment in insolvThe members of this association had followed

ency, executed a trust deed of the property, suband known well that brilliant career which

ject to the mortgage, to a third party, for the made Sir Charles Russell the conspicuous benefit of such of his creditors as assented thereto. and admired leader of the English bar, and

Held: 1. That the trust deed was void on its face they had rejoiced at the elevation of one so as to non-aesenting creditors, and as to the

plaintiff as sucb assignee, and therefore it did competent to the great office which he held

not appear from the evidence that the title to the with such distinction at the time of bis death.

goods in question was in a third party, and it Four years ago we welcomed him here as our

was not error for the trial court to refuse to make chief guest. Recalling now the noble address findings as to such trust deed. 2. A tender, to be which he delivered to us on the 30th of good, must not be made upon any condition to

which the creditor has a right to object., A party, August, 1896, and the deep-felt enthusiasm

however, who tenders money, bas a right to exinspired in the hearts of all who listened to

clude any presumption against bimself that the him, the members of this association desire

sum tendered is in part payment of the debt. to express their admiration for the manner in Hence the tender in this case, which was in paywbich be has filled bis high office, their grate- ment of the mortgage, was good. 3. A tender of ful recollection of his visit here, their af

the amount of a mortgage lien by the mortgagfectionate regard for bis memory, and their

or's assignee in insolvency has the same eüect as

if made by the mortgagor. The tender, although respectful sympathy with the bench and bar

not keept good, in each case discharges the lien, of England in so great a loss to our if fairly made and deliberately refused. 4. Such common profession.” In acknowledging the assignee may make such tender at any time bereceipt of a copy of the above resolution, Mr.

fore foreclosure sale, although the mortgagee has

taken possession of the property under his mortCharles Russell, a son of Lord Russell, has

gage after condition broken; and such tender, recently sent to the secretary of the Amer

without being kept good, will discharge the lien ican Bar Association the following letter: of the mortgage precisely as if the tender bad

been made by the mortgagor. "37 Norfolk Street, W. C.,

London, 1st Oct. 1900. INSURANCE · FORFEITURES CONDITIONSDear Sir:-On my return from America I

BREACH.-In Connecticut Fire Ios. Co. v. Jeary,

decided by the Supreme Court of Nebraska, it find your letter of the 11th September. I appeared that it was conditioned in a policy of beg you will convey to the American Bar As

insurance “tbat the assured shall take an inven

tory of stock hereby covered at least once a year, and sball keep books of account correctly detailing the purchases and sales of said stock, and shall keep all inventories and books securely locked in a fireproof safe or other place secure from fire in said store during the hours that said store is closed for business. Failure to observe the above conditions shall work a forfeiture of all claims under this policy." It was held that such provisions should be construed conjointly, and that, to work a forfeiture of the policy, there must be a failure to perform all the conditions named, and not any particular one of them. The court said in part:

Having in view, however, the situation of the parties and the purposes sought to be accom plisbed by the contract of insurance, can it be said from the language used that it was the intention of the parties that the policy should be forfeited by the mere failure to comply with the one only of the conditions of the warranty? We think not. We are not disposed to impute to the company a desire to avoid responsibility under a fair contract, by it voluntarily entered into, upon a pretext so slight and with so little substantial

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that a forfeiture of the entire policy, leaving to the assured no protection against contingencies from wbich consequences grave and serious in their character might flow, was contemplated by either party, except for weighty and important considerations. By a fair and reasonable construction of the contract of the parties to tbis action, a forfeiture was provided for, not for a failure to comply with one of the several conditions mentioned, but for all of them taken together. Had it been desired to have any other construction placed on its provisions, it would have been no difficult matter to so word the conditions of the warranty as to make a failure to comply with any one or more of them grounds for the forfeiture of the entire policy. This bas not been done, and we are not disposed to give a broader or more liberal construction than the language used requires. The views herein expressed seem to be consonant with both reason and autbority. We are not entirely without light upon the subject as to the views of other courts upon wbat we regard as kindred questions. In a very recent case in the Supreme Court of Iowa, in construing a clause in a policy of insurance against incumbrances upon the property insured, it is stated in the syllabus: “A policy insuring both real and personal property provided that, “if the property should thereafter become mortgaged or incumbered," the policy should be void, and also declared that it should be forfeited if other insurance was taken out on any of said property." Held, that since the provision for forfeiture for mortgaging did not provide a forfeiture for mortgaging “any” of the property, but treated “the property" as a whole, the policy would not be forfeited for a mortgage given on a part of the property only.' Says Judge Given in the opin

ion of the court: “It is a familiar rule that forfeitures are not favored, that contracts will be strictly construed to avoid forfeitures, and that the burden is upon him who claims a forfeiture to clearly show tbat he is entitled to it. The language of the policy is, “or, if the property shall hereafter become mortgaged or incumbered," the policy becomes null and void. It is the property, not a part of it; not the real, nor the personal, but the whole property, the mortgaging of which renders the policy void.' To the same effect is Bailey v. Insurance Co., 16 Hun, 503, heretofore quoted. In our own State this court, in construing like clauses as to incumbrances, bas not adopted the same line of reasoning as the courts whose opinions bave last been referred to. It is here held that, where different classes of property are insured for specific sums, although the premium is paid in one sum in gross, the policy as to the different classes of property is separable and divisible, and a mortgaging of one class of property in violation of the terms of the policy will not prevent a recovery as to all other classes upon which no incumbrance existed. The rule was announced in the case of Insurance Co. v. Schreck, 27 Neb. 527, 43 N. W. Rep. 310, 6 L. R. A. 521, and has since been followed. In that case the insurance was upon certain buildings on a farm, and also covered a lot of personal property described in the policy. The policy provided that “any otber insurance or any incumbrance upon any of the property hereby insured existing at the date of this policy, not made known in the application, or if any subsequent incumbrance is imposed,

* * this policy shall be void. A mortgage was placed upon the real estate on which the insured buildings were located in violation of the terms of the incumbrance clause, and it was held that the policy of insurance was separable and divisible, and that an incumbrance upon the real estate, while preventing a recovery for the loss sustained by the burning of the buildings, would not preclude a recovery for the loss of the personal property insured. While the rule announced in our court is apparently in conflict with the views of the other courts on the same subject herein referred to, the divergence of opinion is not as marked as first appearances would indicate. Each has a different basic point for the course of reason adopted. In this court the policy as to different classes of property insured for specific sums is held to be divisible and a separate contract as to each class of property insured, in so far as the clause against insurance shall apply, while the other cases undertake to analyze and define the meaning, force and effect of the words employed in the provisions against incumbrance. While neither are controlling of the provisions under consideration, they are useful in so far as they may may aid us in a correct solution of the question herein involved.

"Recurring to the language of the warranty

in 'the case at bar, it is provided that, if the conditions are not performed, the policy shall be forfeited. There are two separate and distinct acts to be done; one is to keep books of account, and the other is to take an inventory at a certain time. To accomplish the object sought, it also provided that the books while being kept, and the inventory when taken, are to be kept in a fireproof safe, or other place secure from fire, in the store building containing the property insured. These different steps to be taken are all more or less important, if valuable at all. The inventory, it would seem, is regarded as important as any other act required; and, until there bas been a default or breach in that condition, who is at liberty to say, under the wording of the penalty, that a forfeiture of all rights under the policy was the deliberate contract of the parties to be enforced by the courts upon application therefor? The answer is rendered less difficult when there is kept in view the rules for the proper construction of provisions of this character, as heretofore announced in this opinion. It is not sald by the words used, or the fair import of the same, that if one condition is not complied with a forfeiture will ensue, but the plural is used and clearly refers to all the conditions preceding, and not to any particular one of them."

GARNISHMENT - NON-RESIDENT PARTIES.-It was decided by the Supreme Court of Minnesota, in McKinney v. Mills, that where all of the parties to an action brought in this State—the plaintiff, the defendant, and the garnishee — are nonresidents, none of them being within the State except the garnishee, who is served with a summons while he is within our borders temporarily upon business, the garnishee process must be discharged whenever the facts are brought to the attention of the court. The court says:

"The plaintiff herein, the defendant, and the garnishee, were each and all domiciled in the State of North Dakota when plaintiff instituted the main action in a court of this State and caused the garnishee summons to be served upon the garnishee, who was at the time in this State temporarily upon business, and was the only party within our jurisdiction. The indebtedness of the garnishee to the defendant arose in North Dakota and was payable there. It never had a situs in the State of Minnesota, unless it was brought within our borders by the garnishee just prior to the service of the summons upon him. The first question for determination is, did the service of the summons attach and seize the debt which was due and owing from the garnishee to the defendant, both parties being actual residents of another State, and the latter being domiciled without the jurisdiction of the court in which the proceedings were pending? Tested by the rule announced in Harvey v. Railway Co., 50 Minn. 405, 52 N. W. Rep. 905, 17 L. R. A. 84, this ques

tion would have to be answered in the affirmative. It was there said, obiter: “For the purpose of at. tachment, a debt has a situs wherever the debtor can be found. Wherever the creditor might sue for its recovery, there it might he attached as his property, provided the laws of the forum autbor. ized it. Neither is it material that a debt was not made payable in the State where the attachment proceedings are instituted.' And it is very evident that the trial court, when making the order appealed from, acted on this rule and was governed by it. But, on the real facts in the Harvey case it was unnecessary for the court to make a general statement of the law, and in the later case of Bank v. Bleecker, 72 Minn. 383, 75 N. W. Rep. 740, 42 L. R. A. 283, these facts were clearly set forth for the purpose of pointing out the difference between the two cases, and to demonstrate that, independent of what was said, as above quoted, the Harvey case was rightly decided. The distinction was tbat in the latter case the garnishee was a railway corporation doing business in Montana, where the garnishee proceedings were commenced. The debt garnished grew out of a Montana transaction, and was incurred in that State when Zeller, the main debtor, was domiciled therein. As was said in the opinion, the garnishee had a domicile in Montana for the purposes of that transaction, and the fact that Zeller subsequently left the State did not destroy this domicile, or the situs of the debt for the purposes of attachment in Montana. In the later case, Bank v. Bleecker, the contention was that the garnishee, a foreign corporation doing business in several different States, including Minnesota, was, for the purposes of attaching a debt due from it to the defendant, a non-resident domiciled in Minnesota, and hence subject to our garnishee laws. The court did not agree to this. The whole matter was summed up in the following paragraph in the opinion: Veither the creditor nor the debtor resided in this State. None of the transactions out of which the indebtedness arose took place in this State, and the indebtedness was not payable in this State. Under these circumstances the debt has not a situs in this State'-a large number of cases being cited. There were also three well considered cases cited upon the proposition that ‘a debtor who is only temporarily in the State cannot be charged as a trustee or garnishee.' It is stated in 14 Am. & Eng. Enc. Law (20 Ed.), 801, that 'the decisions on the question as to the liability to garnishment of debts owing to the defendant, as affected by the situs of the debt, are in irreconcilable conflict, arising from the different views of the courts as to the situs of the debt which constitutes the res, and over which the court must be able to acquire jurisdiction, where perBonal service is not had upon the defendant. Where the court has acquired jurisdiction over the garnishee, and also over the defendant, by personal service, it would seem that there is no reason for exempting from liability to condem

nation in such proceedings, on account of its tention of the court. The cases cited by the constructive situs, any debt owing to the de author are all well considered, and are in full acfendant.' And, further, 'that the general rule as cord with the statement. to the situs of a debt, for various purposes, at the "From our examination of the cases mentioned residence of the creditor, does not apply in case in these books, we do not feel warranted in atof garnishment proceedings;' convincing illus tempting to lay down any rule except in respect trations being found in a large number of cases to the particular case in question. As before incited in support of this rule. And also: “A con timated, the doctrine in the Harvey case is too vincing illustration of the doctrine that the situs broad, and is not well fortified by adjudications. of a debt is not necessarily fixed by the residence The court below may have been justified in relyof the creditor is shown by the cases, which uni ing upon it, but it is the plain duty of this court versally hold that a debt due from a resident to modify the sweeping assertion therein condebtor to a non-resident creditor may be sub tained, and we do so by holding that when all of jected by garnishment proceedings to the pay the parties to an action brought in this State-the ment of elaims against such creditor, though serv plaintiff, the defendani, and the garnishee--are ice upon such creditor is by publication only.' non-residents, none of them being in the State And it is very frankly said in note 5 that the best except the garnishee, who is served with sumdoctrine seems to be that debts bave no fixed mons wbile he is in our borders temporarily upon situs as regards garnishment proceedings. It is business, the garnishment process must be disnot necessary for us to determine whether or not charged whenever the facts are brought to the this is the best doctrine, hut an examination of attention of the court. We are of the opinion the adjudicated cases will convince one that, in that the authorities are practically agreed upon an effort to determine the question by reference this proposition as the only one which will adeto the general rule as to the situs of the debt, the quately protect non-residents from being twice courts have involved the question in inextrica compelled to pay their debts." ble confusion. As was said by Mr. Freeman in his annotation to Bank v. Furtick (Del. Err. & App.), 69 Am. St. Rep. 99, 42 Atl. Rep. 479,

LIFE OF A JUDGMENT OF A FEDERAL at page 116: "The courts confound the siius of a COURT IN FAVOR OF THE UNITED debt for the purpose of jurisdiction of it in gar STATES. nisbment proceedings with its situs for the purpose of determining the rights of the parties The question arises whether a State statute concerning it. They lose sight of the debt as an of limitations may be availed of as a defense entity having but one situs, as the personal prop

to any proceeding to enforce or collect a erty of him to whom it is owing.' This annota

judgment in favor of the United States retion is very complete and valuable, covering, as it does, a large number of decisions. The drift

covered in a federal court. The general rule of the decisions in cases where the debt is due to of the common law is that where a statute is a non-resident from a non-resident is well stated general, and thereby any right, title, prerogin 14 Am. & Eng. Enc. Law, p. 803, in the follow ative or interest is devested or taken from the ing language: Where personal jurisdiction can

sovereign, he is not bound unless the statute not be acquired over the defendant on account of

is made to extend to him by express words." his being a non-resident, the decisions upon the question whether a debt due to him by a non

So far as State statutes of limitation are conresident may be reached by garnishment pro cerned it is unnecessary to inquire whether ceedings, when service is had upon the latter the United States be or be not expressly inwhile within the State within which the garnish cluded within their application. The United ment proceedings are brought, are in direct con

States, whether named in a State statute of fice, arising, as heretofore said, from the attempt to give to an indebtedness a situs, and the princi

limitations or not, are not bound thereby, ple that, where personal jurisdiction is not ac and when they sue in their own courts such quired over the defendant, jurisdiction must be a statute is not within the provisions of the acquired over the res.' The authorities collected

Judiciary Act of 1789, which declares that in note 2 sustain the text, but the opposite is not

the laws of the State, in trials at common without support. See note 3. In 2 Shinn, Attach., $ 491, the author says that it is well set

law, shall be regarded as rules of decision in tled 'in this country that an inhabitant in another

the courts of the United States in cases where State is not chargeable a garnishee, they apply. It is only material to inquire although he is within the jurisdiction of whether the United States have, by any legisthe court, where he has come for temporary pur

lation of their own, recognized the statutes pose, and the process of garnishment is therein regularly served upon him. Such a person,

i United States v. Herron, 20 Wall. 251; Angell on served with process of garnishment, will be dis

Lim. (5th Ed.) p. 32; Wood on Lim. $ 52. charged whenever the fact is brought to the at 2 United States v. Thompson, 98 U. S. 486.

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