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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 affix 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 through 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. John Hay, secretary of state, subno 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 bis title deed or other val- which, be 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 counteif 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 Ed Ward Harriman, of Chicago; on "The

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. Edward Wetmore, of New York City, was


TENDER-RIGHTS OF ASSIGNEE.-Davies v. Dow, elected 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

stock of merchandise upon which the defendant adopted by a rising vote. “The American

bad a mortgage, but the lien of which the asBar Association has 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-assenting 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 August, 1896, and the deep-felt enthusiasm

which the creditor has a right to object. A party,

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

clude any presumption against himself 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 paywhich he 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 his memory, and their

or's assignee in insolvency has the same eiiect 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 atbat the assured shall take an inven

tory of stock hereby covered at least once a ion of the court: "It is a familiar rule that foryear, and shall keep books of account correctly feitures are not favored, that contracts will be detailing the purchases and sales of said stock, strictly construed to avoid forfeitures, and that and shall keep all inventories and books securely the burden is upon him who claims a forfeiture locked in a fireproof safe or other place secure to clearly show that he is entitled to it. The from fire in said store during the hours that said language of the policy is, “or, if the property store is closed for business. Failure to observe shall hereafter become mortgaged or incumthe above conditions shall work a forfeiture of all bered," the policy becomes null and void. It is claims under this policy.” It was beld that such the property, not a part of it; not the real, nor provisions should be construed conjointly, and the personal, but the whole property, the mortthat, to work a forfeiture of the policy, there gaging of which renders the policy void.' To must be a failure to perform all the conditions the same effect is Bailey v. Insurance Co., 16 named, and not any particular one of them. The Hun, 503, heretofore quoted. In our own State court said in part:

this court, in construing like clauses as to incum“Having in view, however, the situation of the brances, has not adopted the same line of reasonparties and the purposes sought to be accom - ing as the courts whose opinions have last been plished by the contract of insurance, can it be referred to. It is here held that, wbere different said from the language used that it was the in classes of property are insured for specific sums, tention of the parties that the policy should be although the premium is paid in one sum in forfeited by the mere failure to comply with the gross, the policy as to the different classes of one only of the conditions of the warranty? We property is separable and divisible, and a mortthink not. We are not disposed to impute to the gaging of one class of property in violation of company a desire to avoid responsibility under a the terms of the policy will not prevent a recovfair contract, by it voluntarily entered into, upon ery as to all other classes upon which no incuma pretext so slight and with so little substantial brance existed. The rule was announced in the reason therefor. It ought not to be presumed case of Insurance Co. v. Schreck, 27 Neb. 527, 43 that a forfeiture of the entire policy, leaving to N. W. Rep. 310, 6 L. R. A. 524, and has since the assured no protection against contingencies been followed. In that case the insurance was from wbich consequences grave and serious in upon certain buildings on a farm, and also their character might flow, was contemplated by covered a lot of personal property described in either party, except for weigbty and important the policy. The policy provided that “any other considerations. By a fair and reasonable con insurance or any incumbrance upon any of the struction of the contract of the parties to tbis ac property hereby insured existing at the date of tion, a forfeiture was provided for, not for a fail this policy, not made known in the application, ure to comply with one of the several conditions or if any subsequent incumbrance is imposed, mentioned, but for all of them taken together. * * * this policy shall be void.' A mortgage Had it been desired to have any other construc was placed upon the real estate on which the tion placed on its provisions, it would have been insured buildings were located in violation no difficult matter to so word the conditions of of the terms of the incumbrance clause, the warranty as to make a failure to comply with and it was held that the policy of inany one or more of them grounds for the forfeit surance was separable and divisible, and that ure of the entire policy. This bas not been done, an incumbrance upon the real estate, while preand we are not disposed to give a broader or more venting a recovery for the loss sustained by the liberal construction than the language used re burning of the buildings, would not preclude a quires. The views herein expressed seem to be recovery for the loss of the personal property consonant with both reason and autbority. We insured. While the rule announced in our court are not entirely without light upon the subject is apparently in conflict with the views of the as to the views of other courts upon what we re other courts on the same subject herein referred gard as kindred questions. In a very recent case to, the divergence of opinion is not as marked in the Supreme Court of Iowa, in construing a as first appearances would indicate. Each has clause in a policy of insurance against incum a different basic point for the course of reason brances upon the property insured, it is stated in adopted. In this court the policy as to different the syllabus: 'A policy insuring both real and classes of property insured for specific sums is personal property provided that, “if the property held to be divisible and a separate contract as should thereafter become mortgaged or incum to each class of property insured, in so far as bered," the policy should be void, and also de the clause against insurance shall apply, while clared that it should be forfeited if other insur the other cases undertake to analyze and define ance was taken out on any of said property." the meaning, force and effect of the words emHeld, that since the provision for forfeiture for ployed in the provisions against incumbrance. mortgaging did not provide a forfeiture for mort While neither are controlling of the provisions gaging any” of the property, but treated "the under consideration, they are useful in so far as property" as a whole, the policy would not be they may may aid us in a correct solution of forfeited for a mortgage given on a part of the the question herein involved. property only,' Says Judge Given in the opin “Recurring to the language of the warranty

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in 'the case at bar, it is provided that, if the tion would have to be answered in the aftirmative. conditions are not performed, the policy shall It was there said, obiter: "For the purpose of atbe forfeited. There are two separate and dis tachment, a debt has a situs wherever the debtor tinct acts to be done; one is to keep books of can be found. Wherever the creditor might sue account, and the other is to take an inventory for its recovery, there it might he attached as his at a certain time. To accomplish the object property, provided the laws of the forum authorsought, it also provided that the books while ized it. Neither is it material that a debt was being kept, and the inventory when taken, are not made payable in the State where the attachto be kept in a fireproof safe, or other place se ment proceedings are instituted.' And it is very cure from fire, in the store building containing evident that the trial court, when making the the property insured. These different steps to order appealed from, acted on this rule and was be taken are all more or less important, if val governed by it. But, on the real facts in the uable at all. The inventory, it would seem, is Harvey case it was unnecessary for the court to regarded as important as any other act required; make a general statement of the law, and in the and, until there has been a default or breach in later case of Bank v. Bleecker, 72 Minn. 383, 75 that condition, who is at liberty to say, under the N. W. Rep. 740, 42 L. R. A. 283, these facts were wording of the penalty, that a forfeiture of all clearly set forth for the purpose of pointing out rights under the policy was the deliberate con the difference between the two cases, and to tract of the parties to be enforced by the courts demonstrate that, independent of what was said, upon application therefor? The answer is ren as above quoted, the Harvey case was rightly dedered less difficult when there is kept in view cided. The distinction was tbat in the latter the rules for the proper construction of provis case the garnishee was a railway corporation doions of this character, as heretofore announced ing business in Montana, where the garnishee in this opinion. It is not said by the words used, proceedings were commenced. The debt garor the fair import of the same, that if one con nished grew out of a Montana transaction, and dition is not complied with a forfeiture will ensue, was incurred in that State when Zeller, the main but the plural is used and clearly refers to all the debtor, was domiciled therein. As was said in conditions preceding, and not to any particular the opinion, the garnishee had a domicile in one of them."

Montana for the purposes of that transaction, and

the fact that Zeller subsequently left the State GARNISHMENT — NON-RESIDENT PARTIES.---It did not destroy this domicile, or the situs of the was decided by the Supreme Court of Minnesota, debt for the purposes of attachment in Montana. in McKinney v. Mills, that where all of the parties In the later case, Bank v. Bleecker, the contento an action brought in this State—the plaintiff, tion was that the garnishee, a foreign corporation the defendant, and the garnishee - are non doing business in several different States, inresidents, none of them being within the State cluding Minnesota, was, for the purposes of atexcept the garnishee, who is served with a sum-taching a debt due from it to the defendant, a mons while he is within our borders tem non-resident domiciled in Minnesota, and hence porarily upon business, the garnishee process subject to our garnishee laws. The court did not must be discharged whenever the facts are agree to this. The whole matter was summed up brought to the attention of the court. The court in the following paragraph in the opinion: says:

Neither the creditor nor the debtor resided in "The plaintiff herein, the defendant, and the

this State. None of the transactions out of which garnishee, were each and all domiciled in the the indebtedness arose took place in this State, State of North Dakota when plaintiff instituted

and the indebtedness was not payable in this the main action in a court of this State and caused State. Under these circumstances the debt has the garnishee summons to be served upon the not a situs in this State'-a large number of cases garnishee, who was at the time in this State tem being cited. There were also three well conporarily upon business, and was the only party sidered cases cited upon the proposition that 'a within our jurisdiction. The indebtedness of the debtor who is only temporarily in the State cangarnishee to the defendant arose in North Dakota not be charged as a trustee or garnishee.' It is and was payable there. It never had a situs in stated in 14 Am. & Eng. Enc. Law (20 Ed.), 801, the State of Minnesota, unless it was brought that 'the decisions on the question as to the liawithin our borders by the garnishee just prior to bility to garnishment of debts owing to the dethe service of the summons upon him. The first fendant, as affected by the situs of the debt, are question for determination is, did the service of in irreconcilable conflict, arising from the differthe summons attach and seize the debt which ent views of the courts as to the situs of the debt was due and owing from the garnishee to the de which constitutes the res, and over which the court fendant, both parties being actual residents of must be able to acquire jurisdiction, where peranother State, and the latter being domiciled sonal service is not had upon the defendant. without the jurisdiction of the court in which the

Where the court has acquired jurisdiction over proceedings were pending? Tested by the rule the garnishee, and also over the defendant, by announced in Harvey v. Railway Co., 50 Minn. personal service, it would seem that there is no 405, 52 N. W. Rep. 905, 17 L. R. A. 84, this ques 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 have no fixed mons while 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. nishment 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 baving 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 flict, 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 as 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, 1 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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