« AnteriorContinuar »
IV. Signing and not Reading because not arose in quite a number of different courts at able to read. -Some courts mostly those the same time, and without precedent they adopting the third view make a distinction in worked out their own conclusions, and very cases where the maker is unable to read, and naturally from different reasons. where he can read. There is however no un- The ingenious scheme whereby a person iformity upon this question as will be seen was induced to sign that which he did not infrom the cases above cited and quoted from. tend to, in the nature of a promissory negoThese courts which excuse the maker where tiable note seems to have occurred at the same he signs that which he does not intend to time in different parts of the world. The sign, upon the ground that the instrument is
arose in England 38 in 1869, and in a forgery, will probably make no distinction, 1870 in June a similar case arose in the Suwhile those excusing him but not on that preme Courts of Ill.39 and Ia. 40 which view ground, may sometimes draw the distinction. both decided without knowledge of the En
A writer reviewing some of the cases upon glish case. In the same year in Sept. it arose this subject, thinks there is no good reason in N. Y.41 and in April 1871 in Mich, 42 and in for any distinction; that one who cannot June of the same year in Wis. 43 Most of read is more liable to be selected as a victim which decisions were made in ignorance of by the straggling sharpers, and he ought, be- the others.
WM. M. ROCKEL. fore becoming a party to a written obligation, Springfield, Ohio. and especially with a stranger, to have its contents examined by some person in whom 38 Foster v, MacKinnon, L. R. 1 C. P. 704.
39 Taylor v. Atchinson, 54 III. 196. he may reasonably place confidence; and
40 Douglass v. Matting, 29 Ia. 408. even then, if his confidence should be mis- 41 Whitney v. Snyder, 2 Lans. 477. placed he ought to suffer for the wrongful 42 Gibbs v. Linabury, 22 Mich. 483.
43 Walker v. Egbert, 29 Wis. 425; Other cases bearact of his agent, rather than be allowed to
ing upon the subject. Nebeker v. Cutsinger, 48 Ind. shift the burden to the shoulders of a bona 436; Fisher v. Behren, 70 Ind. 19; Penn. R. Co. v. fide holder.37
Shay, 82 Penn. St. 202; Ruddell v. Phalor, 72 Ind. 533;
Rogers v. Place, 29 Ind. 577; Lubright v. Fletcber, 6 V. Other Instances.—The maker is excused
Black 308; McCormick v. Molbury, 43 Ia. 561; Cole v. in all instances where there is a material al- William, 12 Neb. 440; Brown v. Reed, 79 Penn. St. teration or where it is forged or procured by
370; Holmes v. Trumper, 2.2 Mich. 427; Caulkins y.
Whisker, 29 Ia. 495; Garrard v. Hadden, 67 Pa. St. 82; fraud and duress or where there never was a Reddich v. Doll, 54 N. Y. 236; Abbott v. Rose, 62 Me. delivery of the instrument. Upon the latter
194; Puffer v. Smith, 57 Ill. 527; Briggs v. Ewart, ól
Mo. 245; Aude v. Dixon, 6 Exch. 869; Mance v. Lery, proposition like many other noticed in this
5 Ala. (N. S) 370; Shephard v. IIall, 7 Conn. 329; Clay contribution, courts are somewhat divided. v. Schawb, U. S. D. 1871, Vol. 11; Kellogg v. Seteiner, What is a material alteration, a forgery or
29 Wis. 626; Gerrish v. Glines, 55 N.H. - Clark v.
Johnson, 24 Ill. 296; Mead v. Munson, 60 N. Y. 49; a non-delivery or duress, such as will relieve Frederick v. Clemens 60 Mo. 313; Comstock v. Hanthe maker or bona fide holder, the limits
nab, 76 Ill. 530; Cannon v. Canfield, 13 Cen. L. Jour.
156; and see authorties cited in a former article in this of this article will not permit me to discuss.
Journal on bona fide holder of negotiable instruments. The inquiring reader will find that decided Vol. 22, p. 437. and discussed in some of the cases cited in the notes. VI. It is extremely difficult, if not impos
INTER-STATE GARNISHMENT EXEMPsible to formulate any rules in reference to TION LAWS OF STATE OF DOMICILE. what circumstances will release the maker, as between himself and a bona fide holder.
MISSOURI PACIFIC ETC. CO. V. MALTBY. The law for each State can only be judged Supreme Court of Kansas, October 9, 1885. by the decisions of its own supreme Court.
In a proceeding in garnishment, where all the parThese divergent reasonings and very often ties are non-residents of the State of Kansas, and are similar conclusions of the different courts
residents of the State of Missouri; and the thing at
tempted to be attached by the garnishment proceeding upon this question seem to have arisen from is a debt created and payable in the State of Missouri, a great desire to thwart a great wrong that but the garnishee does business in Kansas and is liawas being carried on. Being a new thing it
ble to be garnished in this State; and the other parties come temporarily into Kansas; and, while in Kansas,
the plaintifi, who is a creditor of the defendant, who 37 Vol. 2 426, Cen. Law Jour.
is a creditor of the garnishee, commences an action in
Kansas against the defendant, and serves a garnish. ment summons upon the garnisbee; and the debt of the garnishee to the defendant is, by the laws of the State of Missouri, exempt from garnishment process, and such debt also seems to come within the exemption provisions contained in $ 490 of the Civil Code of Kansas, and $ 157 of the Justices' Code of Kansas, ex. empting certain earnings of the debtor from the enforced payment of his debts; Held, that such debt is exempt from garnishment process in Kansas.
Error from Bourbon County. David Kelso and J. H. Sallee, attorneys for plaintiff in error; Messrs. Ware & Ware, attorneys for defendants in error.
VALENTINE, J., delivered the opinion of the court.
This was an action brought in the district court of Bourbon county, Kansas, by W. J. Maltby and A. N. Maltby, partners as Maltby & Co., against the Missouri Pacific Railway Company and Geo. W. Ridgway, to recover $116.40 from the railway company because of its failure to answer as garnishee in an action brought by Maltby & Co., against Ridgway, before a justice of the peace of said county. Ridgway and his family and Maltby & Co., were all residents of Sedalia, Missouri, and the railway company was a Missouri corporation, but had been consolidated under the laws of Kansas, with two Kansas railway companies, and did business and operated railroads in Kansas. The action brought before the justice of the peace was for groceries sold and delivered by Maltby & Co. to Ridgway at Sedalia, Missouri. The garnishee summons was served on the agents of the railway company in Bourbon county, Kansas, on July 10, 1883, and the original summons was served personally on Ridgway in the same county on July 17, 1883. The defendant Ridgway appeared personally before the justice of the peace and also by counsel, and judgment was rendered against him and in favor of Maltby & Co. for $258.68. The railway company did not appear withln proper time, but afterward appeared and filed a paper with the justice of the peace, claiming that it was not liable as garnishee; that the court had no jurisdiction over it; and that the sum due from it to Ridgway, to-wit : $58.20, was exempt from judicial process. The justice, however, refused to act upon the paper. At the time of the service of the garnishment summons upon the railway company, it owed Ridgway just $58.20. Afterward Maltby & Co, commenced this present action against the railway company, also making Ridgway a defendant, claiming from the railway company $116.40, because of its refusal to answer as garnishee as aforesaid. The railway company and Ridgway answered in this action separately, each, however, claiming that the debt due from the railway company to Ridgway was exempt from judicial process: that the railway company was not liable to be garnished for the same; and that the railway company was not liable in the action. The case was tried before the
district court without a jury upon an agreed statement of facts. Among the facts admitted were the following: “The money due from the said railway company was for the personal earnings of said Ridgway, and was due to him within sixty days of the beginning of this suit, and was for his personal earnings as engineer upon said railway Missouri, and necessary for the support of himself and family, and said wages are and were exempt from garnishment by the laws of the State of Missouri.” “The family of said Ridgway consists of a wife and one child, who are dependent upon him for their support."
“Plaintiffs admit that an action could have been brought in the State of Missouri against said Ridgway, except while he was absent from the State, and that personal service could have been had on said Ridgway in said State, both before and after said suit was begun in Kansas; and that a garnishment summons might bave been served in said State upon the defendant railway therein, and that garnishment proceedings against the defendant railway company might have been instituted in the State of Missouri, and that if such proceedings had been instituted, the defendant Ridgway would have by reason of the exemption laws of the State of Missouri, entirely defeated the collection of the plaintiff's claim."
Upon the agreed statement of facts the court rendered judgment in favor of Maltby & Co., and against the railway company for $58.20, and interest, amounting in all to $62.25 and costs.
A motion was made for a new trial and overruled, and proper exceptions were taken, and the defendants, the Missouri Pacific Railway Company and Ridgway, now bring the case to this court for review.
The first and principal question which seems to be involved in this case is whether the debt due from the railway company to Ridgway was and is exempt from garnishment process or not. It seems to be admitted by the parties that the laws of a State, including exemption laws, can have no extra territorial force; that no law can be imported into one State from another; yet, that all actions for debts or actions upon contract, wherever they arise, are transitory in their character, and may be brought in any jurisdiction where the debtor or his property may be found; also, that corporations doing business in this State, whether domestic or foreign, may be garnished in this State, and may be garnished by either a resident or non-resident plaintiff; and may also be garnished whether the action arose in this State or elsewhere; and whether the defendant is a resident or non-resident of the State; provided, of course, that the debt or thing attempted to be held in garnishment, is, or may be, the subject of garnishment proceedings. And it has been held by this court that a foreign corporation doing business in this State may be garnished by a person, presumably a resident of Kansas, for a debt due from the foreign corporation to a non-resiror, defendants below, cite the following, among otber, authorities: Pierce v. The C. & N. W. Ry. Co., 36 Wis. 283: Baylies v. Houghton, 15 Vt. 626; Tingley v. Bateman, 10 Mass. 343; Sawyer v. Thompson, 4 Foster (N. H.), 510.
The defendants in error, plaintiffs below, claim that the debt from the railway company to Ridgway is not exempt from garnishment process in Kansas, and cite, among other authorities, the case of the B. & M. R. R. Co. v. Thompson, ante, and the authorities there cited. That case, however, is not applicable to the present case for the following reasons: The plaintiff in that case was not shown to have been a resident of the same State as the defendrnt and garnishee, nor a nonresident of Kansas, and presumably he was a resident of Kansas. In that case it was not shown that the defendant had ever been in Kansas, nor was it shown that his earnings were necessary for the maintenance of his family, and presumably, they were not; and therefore, presumably, such earnings were not exempt from garnishment process under the laws of Kansas, and would not have been even if he had been a resident of Kan
dent employe of the corporation, not present in Kansas, where the debt was created outside of Kansas, and was exempt from garnishment in the State where the defendant and the garnishee resided, and where the debt was created, but was not exempt under the laws of Kansas. B. & M. R. R. Co. v. Thompson, 31 Kas. 180; S. C., 47 Am. Rep. 497; s. C., 18 C. L. J., 192, and note, 194, et seq. But the plaintiffs in error, defendants below, claim that no person or corporation can be garnished with regard to property, or choses in action which are beyond the jurisdiction of the State, or are exempt from garnishment process in the State where the situs of such property or choses in action may be considered to be; that the situs of the debt in question is where it was created, where it was to be paid, and where all the parties reside; but it is also claimed by the plaintiffs in error, defendants below, that such debt is nevertheless exempt from garnishment process, whether its situs be considered as in Kansas, or in Missouri, or in both. It is claimed that the debt may be considered as in the nature of a trust fund set apart by the laws of Missouri for the use and benefit of the family of Ridgway, and that garnishment proceedings cannot reach to such fund so as to divert it from the purpose for which it was set apart. It is claimed that the exemption of this fund from judicial process is an incident to the debt itseli or a condition thereof, which will follow the debt into whatever jurisdiction the debt itself may be considered as having passed; that the exemption being an incident of the debt is equally transitory with the debt. It is claimed that whenever a debt created under the laws of one State is carried into another, all its incidents and conditions are carried along with it. It is claimed that where the debtor ane creditor, and the garnishee are all residents of the same State, and the debt was created in such State, the exemption is not only such a condition or incident to the debt, that it will follow the debt wherever the debt may go; but also, that the relation or status existing between the parties by reason of the debt and the exemption laws of the State where all the parties reside, so follow the parties that if a part of such relation or status is enforced in any jurisdiction, all must be enforced--the exemption as well as the debt; and many of the various relations existing in society, such as marriage, agency, trusteeship, corporations, partnership, etc. are cited as illustrations of relations created under the laws of one State, and being recognized and enforced in other States. It is also claimed that the exemption is a vested right in rem, which folJows the debt into any jurisdiction in which the debt may be considered going. It is also claimed that, because all the parties reside in Missouri,and the debt was created there and is payable there, and was exempt from garnishment process under the laws of that State; the debt should be held to be exempt in other States, under the rules of comity existing between States. The plaintiffs in er
We are inclined to think that the debt due from the railway company to Ridgway is exempt under the laws of this State. Seymour V. Cooper, 26 Kas. 539; Muzzy v. Lantry, 30 Kas, 49; Civil Code, $ 190; Justices' Code, $ 157. Under the sections above cited, the earnings of a debtor for his personal services at any time within three months next preceding the attempt to subject such earnings to the payment of his debts, are exempt from such payment if it be made to appear by the debtor's affidavit, or otherwise, that such earnings are necessary for the use of his family, supported wholly or partially by his labor, and no distinction is made by such sections between residents and non-residents, or between debts created in Kansas, and debts created elsewhere; and the weight of authority seems to be that where the statutes do not make any distinction, no such distinctions exist; that if the statutes do not restrict the exemtion of property for the payment of debts to residents or to some other particular class of persons, the courts have no authority to make such restriction; and the statute will apply to all classes-non-residents as well as residents. M. P. R. R. Co. v. Barron, 83 Ill. 365; Sproul v. McCoy, 26 O. St. 577; Hill v. Loomis, 6 N. H. 263; Haskill v. Andros, 4 Vt. 609; Lowe v. Stringham, 14 Wis. 222. And the case of Leiber v. The U. P. Ry. Co., 49 Ia. 688, seems to recognize this principle, though the question is not decided. See, also, Freeman on Executions, $ 220, and cases there cited. And the garnishee may interpose the exemption as well as the debtor bimself. Mull v. Jones, 33 Kas. 112.
But it makes no difference in this case, as both the garnishee and the debtor have interposed the exemption. Under the general exemption laws of Kansas (Comp. Laws of 1879, Chap. 38), it is
necessary that the party supposed to be entitled to the exemption should be a resident of this State; but such is not the case with regard to the
ing the recognition and enforcement of the exemption laws of one State by the courts of another, these principles of comity between the States must necessarily be studiously considered.
157 of the Justices' Code.
Not wishing to state the law more or less broadly than the facts of this case will warrant, we shall decide it purely upon its own facts; and, therefore, the decision will be, in substance, as follows: In a proceeding in garnishment, where all the parties are non-residents of the State of Kansas, and are residents of the State of Missouri; and the thing attempted to be attached by the garnishment proceedings is a debt created and payable in the State of Missouri, but the garnishee does business in Kansas, and is liable to be garnished in this State, and the other parties come temporarily into Kansas, and while in Kansas the plaintiff, who is a creditor of the defendant, who is a creditor of the garnishee, commences an action in Kansas against the defendant, and serves a garnishment summons upon the garnishee, and the debt of the garnishee to the defendant is, by the laws of the State of Missourt, exempt from garnishment process; and such debt also seems to come within the exemption provisions contained in $ 490, of the Civil Code of Kansas, and § 157 of the Justices' Code of Kansas, exempting certain earnings of the debtor from the enforced payment of his debts; such debt is exempt from garnishment process in Kansas.
The judgment of the court below will be reversed and cause remanded for further proceedings.
or propriety of giving extra-territorial force to exemption laws is that such laws pertain to the remedy, and the question of exemptions belongs to the law of the forum.6 “Comity only requires that the tribunals of the State shall be open to citizens of other States as they are to its own, and that they shall enforce the same remedies and none other."7 The most respectable text writers have said that the operation of exemption laws is restricted to the State in which they are enacted; that they do not constitute a part of the contract between the debtor and creditor to the extent that the former may invoke them wherever he may choose to go.8
It is now generally accepted that where the creditor and debtor reside in the same State, the former may be enjoined on the petition of the latter from going into another State to collect his debt, which, by reason of the exemption law of the domicile, could not be collected there.9 This principle may furnish the strongest reason for the courts of one State to give force to the exemption laws of another, when a creditor, resident of the latter, slips from the jurisdiction of the courts of the former State and endeavors to evade its laws and collect a debt from a resident of his own State. This would furnish an opportunity for the practice of comity, not an obligation, but a mere matter of voluntary courtesy from the one State to the other.
The Wisconsin case,10 in which the court attempts to give recognition to the doctrine that the exemption laws of one State will protect a resident thereof when sued in another State by one also a resident of the former, should not be recognized in any way as authority upon the question. That case is condemned by its statement that, in the absence of proof, the statute law of Illinois was presumed to be the same as that of Wisconsin. It has been severely and justly criticised as bearing on its face“unmistakable evidence of having been poorly considered and hastily written, and wholly unsupported by respectable authority.” 11 Where a planter, a resident of Mississippi, but owning land in Alabama, had his horse seized under an attachment issued by a court of the latter State, it was held he could not claim the horse as exempt from seizure under the law of Alabama, such law being specially restricted to "every family" of that State; nor could he claim the benefit of the exemption law of Mississippi.12 In the case of Morgan v. Neville,13 the facts were there; Morgan owed Neville wages for labor contracted for and performed in Pennsylvania, and Neville owed Shannon for goods sold to him in Pennsylvania where the three parties resided. Shannon, finding Morgan in Maryland, sued out an attachment there and garnished Morgan for the amount due
NOTE.-In the foregoing case the court goes only to the threshold of a very difficult and mooted question, the conclusion of the court being applicable only to the facts therein stated. Had it not been that the debt due from the railway company to the defendant was exempt under the laws of Kansas, then the question whether the debt was under the laws of Missouri exempt in the State of Kansas, would have been squarely presented for determination.
The recognition of the exemption statutes of one State by the courts of another is clearly within the doctrine of the extra-territorial force of laws. Such recognition is comity between the States, not a matter of obligation, but merely a matter of voluntary courtesy and favor, extended or withheld at pleasure.1 Inherent in the law of comity between the States is the principle that whenever the statute law of one State is recognized and enforced in another, it is upon the presumption that it is not inimical to the laws of the latter, its policy or the interests of its people. Comity extends only to enforce obligations, contracts and rights under provisions of the law of other States, which are analogous or similar to those of the State where the litigation arises, and it is never extended to the laws of remedy, but has been generally regarded a8 extending to matters ex contractu. In consider
1 Rorer on Inter. Law, 4, Story's Conflict of Laws, (8th ed.) 8.
. Bank v. Earle, 13 Pet. 519; Story's Conflict of Laws, (8th ed.) 35, 168; Thompson v. Waters, 25 Mich. 214.
3 Hughes v. Klingender, 14 La. An., 857; Woodward v. Roane, 23 Ark., 623. * Rorer on Intern. Law, 168; Blanchard v. Russell, 13
Mass., 1; Story's Conflict of Laws, (8th ed.) 374; Greenwood v. Curtis, 6 Mass., 358.
3 Ncwell v. Hayden, 8 Io., 140; Blanchard v. Russell' 13 Mass., 1; Helfsentein v. Cave, 3 Io., 287.
6 Wood v. Malin, 5 Halst. 208; Wittemore v. Adams, 3 Cow., 626; Toomer v. Dickerson, 37 Ga. 440; Haskell v. Andros, 4 Vt., 609, Coffin v. Coffin, 16 Pick., 323.
7 Bank v. Trimble, 6 B. Mon., 599.
8 Freeman on Executions, 209; Rorer on Inters. Law 53; Thompson on Homestead and Ex., 20.
9 Snook v. Suetzer, 25 Ohio St. 616.
from him to Neville, Morgan gave notice to this pro through which the road passes,and right by, where ceeding to Neville. Judgment was rendered against the work complained of is done. the garnishee by default, and the amount adjudged
The testimony shows that the defendant has against him was paid over. Neville afterwards sued Morgan in Pennsylvania and it was there held that
three main tracks through Bridge avenue, in the payment of the debt in pursuance of the judgment in city of Camden, for the use of their engines and Maryland was a good defense to the action. In Ohio
It has also a track called a “siding,'' used and Iowa the same principle has been announced. 14
for shifting cars from one main track to another, In the case of Lieber v. The Union Pacific R. R.,15 the
and for distributing their cars, and for making up railroad company was indebted to the defendant debtor for wages payable in Nebraska, where the latter
trains. This “siding” terminates at the residence lived, and which was exempt under the law of that of the complainants. At the point of termination State, but was not exempt under the law of Iowa. is a switch. When freight trains arive, they freThe court enforced the law of the forum.
quently are stopped at or near to this switch, and The question at issue has been discussed at length in
the cars containing different kinds of merchandise note to the case of Burlington etc. R. R. Co.v. Thomp
or live stock are, one after the other, or in parcels, sin.16
W. A. ALDERSON.
distributed to different places at the main station
on the banks of the Delaware river. This distri14 Baltimore etc. Ry.Co. v. May, 25 Ohio St., 347; Moore V. R. R. Co., 43 10. 388.
bution is made by repeated forward and backward 15 49 Io., 688.
movements of the engine and train, the number of 16 18 Cent. L. J., 192. See Article, 21 Cent. L. J., 425. times repeated depending upon the length of the
train, and the variety of freight. This work requires also the ringing of the engine bells, the
blowing of the engine whistles, the emission of NUISANCE CORPORATION CHARTER more or less steam, and the discharge of large RAILROAD-EASEMENT.
quantities of smoke. The same process is applied
in making up large freight trains for departure. PENNSYLVANIA RAILROAD COMPANY Besides the ordinary freight, large numbers of ANGEL.
cattle, sheep and swine are brought to the depot
at Camden. This operation of making up and New Jersey Court of Errors and Appeals.*
distributing the large freight trains, by means of 1. A railroad company using, for the purposes of a
the siding and switch named, brings the trains, terminal yard, a portion of a street over which it has and parts of trains, and engines, backward and only a right of way, is responsible for any nuisance, forward frequently in front of the dwelling-house public or private, thereby created.
in which the complainants reside. In addition to 2. An act of the legislature cannot confer upon in
the passing and repassing, these trains and engines dividuals or private corporations, acting primarily for their own profit, although for pnblic benefit as well,
are allowed to stand at or near the same locality any right to deprive persons of the ordinary enjoyment
for several minutes. of their property, except upon condition that just Mr. P. L. Voorhees, for appellants; Mr. J. W. compensation be first made to the owners.
Wartman and Mr. J. J. Crandall, for respondents. 3. A railroad company cannot justify the maintenance of a condition of things which directly renders a
Dixon, J. delivered the opinion of the court. dwelling-house in the neighborhood unfit for a place
The complainant are owners and occupants of a of residence, upon the ground that the nuisance nec dwelling-house on the southerly side of Bridge essarily results from the convenient transaction of the avenue, between second and third streets, in the company's lawful business, and such a nuisance will city of Camden. The defendant's track run through be prohibited by injunction.
the central part of Bridge avenue in front of com
plainants'dwelling, across second street, into its This bill charges that the defendant uses its terminal yard, which extends from the westerly road, in the city of Camden, in such a manner as side of second street to the Delaware river. to create a nuisance, to the injury of the com The bill avers that the defendant uses its tracks plainants. This nuisance, it is alleged, arises from in front of the complainants' house for the purthe use of the several tracks, in distributing cars pose of distributing cars and making up trains in
up its loaded trains to go out from the main depot in the keeps locomotives and cars laden with live stock city. The noise of the trains, in stopping and standing there, so that by reason of the stenches, starting, in the work of making up and distribut noises, smoke, steam and dirt thereby occasioned, ing trains, the noise of the bells as they are rung, the comfort of the complainants' home is seriously the noise of engine whistles, the noise of cows and impaired, and hence they pray an injunction to calves bellowing, lambs and sheep bleating, and restrain the defendant from continuing in that pigs smelling, and the smoke, dust and cinders course of conduct. cast from the engines, it is alleged, constitute a The answer denies that the defendant uses its nuisance to the complainants, who live in the im tracks in front of complainants' dwelling for the mediate vicinity, and on the line of the street purpose of distributing cars and making up trains,
and a siding for cars, loaded with live stock or *From advance sheets New Jersey Equity Reports. otherwise, and generally, alleges that said tracks