Central Law Journal.

ST. LOUIS, MO., NOVEMBER 2, 1900.

The question as to the validity of instruments which, under the act of congress, require a revenue stamp, but upon which through inadvertence or otherwise, stamps have not been placed, has given rise to considerable speculation and contention. The Court of Appeals of Maryland has recently passed upon the question as to the failure to affix stamps to an assignment of mortgage— Wingert v. Zeigler. The act of congress provides a penalty for one who shall issue assignments of mortgages and other enumerated ins'ruments without affixing revenue stamps and canceling the same as required by law, with intent to evade the provisions of the statute, and provides that any such instrument shall be deemed invalid.

It was held

by the Maryland court that "such instrument" refers only to one left unstamped with intent to evade the law, and hence where an assignment of a mortgage was left unstamped through inadvertence, and not willfully, a sale thereunder was validated by the subsequent affixing and canceling of the proper stamps, and hence the purchaser at such sale acquired as good a title as though the assignment had been stamped when made, where no rights of other persons were acquired in the meantime. The court very properly says that it is scarcely possible that congress intended that one who deliberately and intentionally violated the law might escape by paying "a fine not exceeding fifty dollars," while one who was perfectly innocent of so doing should have his title deed or other valuable paper declared invalid and of no effect. Under the statute, it is the duty of the grantor in the deed, or the party issuing, selling, or transferring the instrument, document, or other paper, to affix the stamp; and, if the construction contended for be followed, a designing grantor, taking the chances of a prosecution, might impose on an innocent purchaser, whose title would be worthless, although he was absolutely free from any suspicion of wrongdoing or intention of evading the law. In Green v. Holway, 101 Mass. 243, Justice Gray reviewed the various acts

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 reference to the previous provisions in the section to ascertain the meaning of the word "such," holding that it only applied to those on which stamps had been omitted with intent to evade the provisions of the law. In Moore v. Quirk, 105 Mass. 49, the case was expressly affirmed. In Black v. Woodrow, 39 Md. 194, this court held that an instrument subject to the act of 1866 was not void or inadmissible in evidence, if the omission to stamp it was without intent to evade the provisions of the act. Many other authorities might be cited, including decisions of the Supreme Court of the United States, to show that in regard to some of the earlier acts of congress such was the interpretation; and we think this provision in the present law should be so construed, and that it was intended to apply only to those cases where the stamp was omitted to evade the provisions of the law.

The twenty-third annual meeting of the American Bar Association was held at Saratoga, N. Y., on Wednesday and Thursday, August 29th and 30th. The President, Hon. Charles H. Manderson, presided. His address was notable in that it contained a letter from Hon. John Hay, secretary of state, submitting an interesting memorandum prepared by Mr. Edmond Kelly, a delegate from the United States to the international congress of law, now sitting at Paris, in which he sets forth considerations regarding the creation of an international bureau for the collection and utilization of the world's legislation, which, he suggests, shall be created by a congress of all nations to sit in Paris during 1901. Mr. Manderson gave his full reply, ending as follows: "I heartily approve the suggestion of Mr. Edmond Kelly and hope the department of State will lend its countenance to the project that the congress of international law shall extend to the nations of the world an invitation for a congress to create the proposed bureau." Mr. Manderson deprecated in strongest terms the increasing tendency to over-legislate and gave these statistics: "Few realize that there were enacted in 1899 four thousand eight hundred

and thirty-four general and nine thousand three hundred and twenty-five local, special or private laws, making a total (hardly entitled to be called a grand total) of fourteen thousand one hundred and fifty-nine laws in the States alone. The proportion is as large in 1900, the only relief being that fewer States held legislative sessions." There were addresses on "Ultra Vires Corporation Leases," by Edward Harriman, of Chicago; on "The March of the Constitution," by Hon. George R. Peck, of Chicago; on "A Hundred Years of American Diplomacy," by Hon. John Bassett Moore, of New York City. Mr. Edward Wetmore, of New York City, was elected president for 1901.

The following resolution regarding the death of Lord Russell was unanimously adopted by a rising vote. "The American Bar Association has heard with peculiar sorrow of the death of Lord Russell, of Killowen, Lord Chief Justice of England, and desires to enter upon its records some permanent ex. pression of honor and esteem for his memory. The members of this association had followed and known well that brilliant career which made Sir Charles Russell the conspicuous and admired leader of the English bar, and they had rejoiced at the elevation of one so competent to the great office which he held with such distinction at the time of his death. Four years ago we welcomed him here as our chief guest. Recalling now the noble address which he delivered to us on the 30th of August, 1896, and the deep-felt enthusiasm. inspired in the hearts of all who listened to him, the members of this association desire to express their admiration for the manner in which he has filled bis high office, their grateful recollection of his visit here, their affectionate regard for his memory, and their respectful sympathy with the bench and bar of England in so great a loss to our common profession." In acknowledging the receipt of a copy of the above resolution, Mr. Charles Russell, a son of Lord Russell, has recently sent to the secretary of the American Bar Association the following letter:

"37 Norfolk Street, W. C., London, 1st Oct. 1900.

Dear Sir:-On my return from America I find your letter of the 11th September. I beg you will convey to the American Bar As

sociation the thanks of my father's family for the resolution of which you send me a copy. It needs no words of mine to tell you how warm my father's regard was for the bar of the United States among the members of which he was proud to count many dear personal friends. The resolution you send me will be preserved by me with care and pride. Believe me, yours sincerely,

CHARLES RUSSELL.”

NOTES OF IMPORTANT DECISIONS.

TRUST DEED ACCEPTANCE VALIDITY TENDER-RIGHTS OF ASSIGNEE.-Davies v. Dow, 83 N. W. Rep. 50, decided by the Supreme Court of Minnesota, was an action by an assignee in insolvency to recover possession or the value of a

stock of merchandise upon which the defendant had a mortgage, but the lien of which the assignee claimed had been discharged by a tender of the amount thereof before action brought. The tender was made prior to the change of the rule as to keeping it good made by Laws 1897, ch. 292, § 8. It appeared on the trial that the assignee, prior to making an assignment in insolvency, executed a trust deed of the property, subject to the mortgage, to a third party, for the benefit of such of his creditors as assented thereto. Held: 1. That the trust deed was void on its face as to non-assenting creditors, and as to the plaintiff as sucb assignee, and therefore it did not appear from the evidence that the title to the goods in question was in a third party, and it was not error for the trial court to refuse to make

findings as to such trust deed. 2. A tender, to be good, must not be made upon any condition to which the creditor has a right to object.. A party, however, who tenders money, has a right to exclude any presumption against himself that the sum tendered is in part payment of the debt. Hence the tender in this case, which was in payment of the mortgage, was good. 3. A tender of the amount of a mortgage lien by the mortgagor's assignee in insolvency has the same eïïect as if made by the mortgagor. The tender, although not keept good, in each case discharges the lien, if fairly made and deliberately refused. 4. Such assignee may make such tender at any time before foreclosure sale, although the mortgagee has taken possession of the property under his mortgage after condition broken; and such tender, without being kept good, will discharge the lien of the mortgage precisely as if the tender had been made by the mortgagor.

tory of stock hereby covered at least once a year, and shall 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 plished 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 reason therefor. It ought not to be presumed that a forfeiture of the entire policy, leaving to the assured no protection against contingencies from which 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 this 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 has 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 authority. We are not entirely without light upon the subject as to the views of other courts upon what 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 that 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, has not adopted the same line of reasoning as the courts whose opinions have 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. 340, 6 L. R. A. 524, 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 other 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 has 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 attachment, a debt has a situs wherever the debtor can be found. Wherever the creditor might sue for its recovery, there it might be attached as his property, provided the laws of the forum authorized 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 that 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: Neither 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 (2d 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 personal 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 constructive situs, any debt owing to the defendant.' And, further, 'that the general rule as to the situs of a debt, for various purposes, at the residence of the creditor, does not apply in case of garnishment proceedings;' convincing illustrations being found in a large number of cases cited in support of this rule. And also: 'A convincing illustration of the doctrine that the situs of a debt is not necessarily fixed by the residence of the creditor is shown by the cases, which universally hold that a debt due from a resident debtor to a non-resident creditor may be subjected by garnishment proceedings to the payment of claims against such creditor, though service upon such creditor is by publication only.' And it is very frankly said in note 5 that the best doctrine seems to be that debts have no fixed situs as regards garnishment proceedings. It is not necessary for us to determine whether or not this is the best doctrine, hut an examination of the adjudicated cases will convince one that, in an effort to determine the question by reference to the general rule as to the situs of the debt, the courts have involved the question in inextricable 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, at page 116: The courts confound the siius of a debt for the purpose of jurisdiction of it in garnishment proceedings with its situs for the purpose of determining the rights of the parties concerning it. They lose sight of the debt as an entity having but one situs, as the personal property of him to whom it is owing.' This annotation is very complete and valuable, covering, as it does, a large number of decisions. The drift of the decisions in cases where the debt is due to a non-resident from a non-resident is well stated in 14 Am. & Eng. Enc. Law, p. 803, in the following language: 'Where personal jurisdiction cannot be acquired over the defendant on account of his being a non-resident, the decisions upon the question whether a debt due to him by a nonresident may be reached by garnishment proceedings, when service is had upon the latter while within the State within which the garnishment proceedings are brought, are in direct conflicf, arising, as heretofore said, from the attempt to give to an indebtedness a situs, and the principle that, where personal jurisdiction is not acquired over the defendant, jurisdiction must be acquired over the res.' The authorities collected in note 2 sustain the text, but the opposite is not without support. See note 3. In 2 Shinn, Attach., § 491, the author says that it is well settled in this country that an inhabitant in another State is not chargeable as a garnishee, although he is within the jurisdiction of the court, where he has come for temporary purpose, and the process of garnishment is therein regularly served upon him. Such a person, served with process of garnishment, will be discharged whenever the fact is brought to the at

tention of the court.' The cases cited by the author are all well considered, and are in full accord with the statement.

"From our examination of the cases mentioned in these books, we do not feel warranted in attempting to lay down any rule except in respect to the particular case in question. As before intimated, the doctrine in the Harvey case is too broad, and is not well fortified by adjudications. The court below may have been justified in relying upon it, but it is the plain duty of this court to modify the sweeping assertion therein contained, and we do so by holding that when all of the parties to an action brought in this State-the plaintiff, the defendant, and the garnishee-are non-residents, none of them being in the State except the garnishee, who is served with summons while he is in our borders temporarily upon business, the garnishment process must be discharged whenever the facts are brought to the attention of the court. We are of the opinion that the authorities are practically agreed upon this proposition as the only one which will adequately protect non-residents from being twice compelled to pay their debts."

LIFE OF A JUDGMENT OF A FEDERAL COURT IN FAVOR OF THE UNITED STATES.

The question arises whether a State statute of limitations may be availed of as a defense to any proceeding to enforce or collect a judgment in favor of the United States recovered in a federal court. The general rule

of the common law is that where a statute is general, and thereby any right, title, prerogative or interest is devested or taken from the sovereign, he is not bound unless the statute is made to extend to him by express words.1 So far as State statutes of limitation are concerned it is unnecessary to inquire whether the United States be or be not expressly included within their application. The United States, whether named in a State statute of limitations or not, are not bound thereby, and when they sue in their own courts such a statute is not within the provisions of the Judiciary Act of 1789, which declares that the laws of the State, in trials at common law, shall be regarded as rules of decision in the courts of the United States in cases where they apply.2 It is only material to inquire whether the United States have, by any legislation of their own, recognized the statutes

1 United States v. Herron, 20 Wall. 251; Angell on Lim. (5th Ed.) p. 32; Wood on Lim. § 52.

2 United States v. Thompson, 98 U. S. 486.