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24 Wis. 60; State v. Kelly, 54 Ohio St. 166, | Grain Commission Merchants, 310 Board of
43 N. E. 163; State v. Smith, 10 R. 1. 260; Trade. Account of Victor Carlson, Hallock,
Com. v. Smith, 103 Mass. 444; People v.
Cipperly, 101 N. Y. 634, 4 N. E. 107; State,
Bayles, Prosecutor, v. Newton, 50 N. J. L. Date un-
549, 18 Atl. 77; Com. v. Gray, 150 Mass.
327, 23 N. E. 47; People v. Longwell, 120
Mich. 311, 79 N. W. 484.

Jan. 21.

Mr. Bert Fesler also for respondent.

Lewis, J., delivered the opinion of the court:

Upon the complaint of Charles P. Staples, a member of the State Railroad & Warehouse Commission, defendants, commission merchants, doing business at Duluth, were charged with having violated the provisions of § 2, chap. 225, p. 246, Laws 1899, in failing to render a true statement to the consignor concerning a consignment of flax. A plea of not guilty was entered, and the trial resulted in a verdict of guilty. The case is brought here upon appeal by defendants from an order denying their motion for a new trial.

It is undisputed that the consignor, Victor Carlson, resided at Hallock, Minnesota, and shipped a carload of flax to defendants at Duluth, to be sold by them on commission; that the car was shipped from Hallock, January 14th, over the Great Northern Railroad, reaching Duluth January 19, 1903. Carlson made a draft upon defendants for $700, attached the bill of lading, and sent it through a bank for collection. The flax was inspected January 19th at Duluth, and was ready to be sold upon the market that day. The evening of January 19th defendants wrote consignor the following letter:

Duluth, Minn., Jany. 19th, 1903. Mr. Victor Carlson, Hallock, Minn. Dear Sir:

We have received the following car of flax from you to-day, which inspected and sold (subject to comparison with sample) for your account and risk as stated below:

Car No. 21048

Yours truly,
Edwards, Wood, & Co.,
Geo. K. Taylor, Mngr.
January 22d the following account was

Date Gross Car. Grade. Freight. Sold. Weight 21048. Flax. 83.34 1 19. 980.10. No. 1 14 % Net Weight Price. Delivered. 842.54 75



Duluth, Minn., Jan. 22nd, 1902. Account sales of Edwards, Wood, & Co.,

by cleaning.


Freight and Inspection $83.09

Commission 2%

Balance to your credit


January 20th, defendants sold the carload of flax to the Hall Elevator Company at Duluth at $1.20 per bushel, an advance of 1⁄2 cent, but of this sale made no report to consignor. Defendants claim the sale was made to themselves at the close of the business day, January 19th, and that the letter of that date, and the account stated, of date January 22d, constituted a report of the transaction within the requirement of the statute. Defendants further claim that there was a subsequent ratification of the transaction by the consignor.

At the trial, the court instructed the jury that, when grain is consigned to commission merchants to be sold upon commission, it is their duty to sell it in the open market for the best obtainable price, and remit to the shipper the amount of the sale, less commission and necessary disbursements; that commission merchants have no right, when grain has been consigned to be sold on commission, to themselves purchase it, and that an attempt so to do is not binding upon the shipper; that if such an attempt is made, and thereafter the grain is sold to an actual purchaser, the law requires the commission merchants to make a true report of the Initial Grade Sold at sold amount received at the sale to the actual G. N. No. 1 Flax 14% 1191⁄2 purchaser within twenty-four hours thereafter; and, further, that, if the jury found The market was a very narrow one all from the evidence that the car in question day and above was best price. Acct. sales was consigned to defendants to be sold on & check to balance will follow as soon as un-commission, then defendants had no right or loaded. Trusting same is satisfactory, and awaiting your further orders, we remain,








authority to themselves purchase the grain, and any such attempt at purchase would not relieve them of the positive duty to report to Carlson the sale to a subsequent legal purchaser. The court refused to instruct the jury, upon request of defendants, to the effect that they were not guilty if the jury should find that the duly authorized agent of defendants sold the carload of flax to them, paying therefor the highest market

price of that date, and duly reported the | benefit of their patrons; and were required same to the consignor within twenty-four to take all reasonable and usual means and hours thereafter. The court also refused to precautions to dispose of the grain to the instruct the jury that, if such sale was made best advantage of the consignor immediateto defendants in accordance with the usages ly upon its arrival; and if for good reason and customs of the board of trade at Duluth, they failed to dispose of it on the day of its at the highest price obtainable on that day, arrival, and it was necessary to sell it at and duly reported the same to the consignor private sale after business hours of the within twenty-four hours thereafter, and the board of trade, or to carry the grain over the consignor did not, within a reasonable time day, the same duty followed them, and they thereafter, repudiate the transaction, then were still required to exercise reasonable dilsuch act would constitute ratification by the igence on behalf of the shipper. They could consignor. Error is also assigned in refus- not shift such responsibility by bidding in ing defendants' offer to prove it was the the property for themselves after business custom among members of the Duluth board hours, and subsequently turn it over to some of trade to purchase for themselves consign-one else at a profit, and not be held accountable therefor. The record conclusively shows that on the following day the car of flax, without being unloaded, was disposed of by defendants to the Hall Elevator Company at an advance of 1⁄2 cent a bushel. Under the law of agency such sale inured to the benefit of defendants' principal, and the attempted sale to themselves, as testified to by their agent, was, prima facie, a nullity. We cannot accept as applicable to this case the proposition that, if the shipper made no protest after receiving the report of the alleged sale and the proceeds thereof, he thereby accepted and ratified the sale. On the other hand, it was the duty of defendants to clearly show that the shipper not only knew the sale was made to themselves, upon which point the report of sale is silent, but that he also knew that subsequently defendants sold the flax at an advanced price, and, being possessed of all these facts, he accepted the proceeds of the sale to defendants as final, and waived his right to profits on account of the subsequent sale. In this respect the evidence entirely fails. Conceding there is evidence tending to show that the manager, Mr. Taylor, sold the flax to defendants, and made a report thereof, the evidence fails to show that the consignor ever accepted the transaction after being put in full possession of all the facts.

ments of grain shipped to them to be sold upon commission at the highest market price for the day, in the event that other purchasers could not be obtained. The instruction of the court to the following effect is also questioned: "The offense charged is that of omitting to perform a positive duty enjoined upon the commission merchants by the law of the state, and it is immaterial whether he actually knew anything about the transaction, if the grain was shipped to them to be sold upon commission, or was sold by them, or any authorized person acting for them, on commission."

Section 1, chap. 225, p. 245, defines the purpose of the act, and declares it to be unlawful to do business without procuring a license and giving a bond for the benefit of persons intrusting commission merchants with consignments; that, if such commission merchant receive grain for sale on commission, the bond shall be conditioned that he faithfully account and report to all persons intrusting him with grain for sale, less commission and disbursements; and that, if he does not receive grain for sale on commission, the bond shall be conditioned upon the faithful performance of his duties as such commission merchant. The record shows that defendants were duly licensed to sell grain, exclusive of other agricultural products and farm produce, on commission, at Minneapolis and Duluth, and that they duly executed and delivered their bond, as provided by law, conditioned to faithfully acquired, but, on the contrary, wilfully and count and report to all persons intrusting unlawfully made and rendered to the conthem with grain to be sold on commission, signor a false report and statement in writless commission earned and actual disburse- ing, in and by which they pretended and repments. The law does not prohibit defend- resented they had sold the flax for the sum ants from engaging in the business of di- of $1,007.38, whereas in fact they sold it rectly buying and dealing in grain, but, so for $1,011.54. The gist of the offense is one far as shown, they did not take advantage of omission, in failing to render a true of that privilege, and take out a license for statement to the consignor, showing what that purpose. Having held themselves out portion of such consignment had been sold, as commission merchants to sell grain on the price received, and the name and address commission, defendants entered into an obli- of the purchaser, the date, hour, and minute gation to use their knowledge and position when such sale was made, with vouchers for in disposing of the grain for the greatest all charges and expenses paid or incurred;

The complaint charged that defendants wilfully and unlawfully neglected and failed to render the statement within the time re

and defendants were put on trial upon that charge, and none other. The statement in the complaint that they wilfully made a false report was unnecessary, and mere surplusage. Upon the trial, however, in support of the offense charged, it was proper to prove what reports were made, and that such reports were not those required by law. Defendants' business was conducted through their local manager, and, it may be admitted, they were acting in good faith, in accordance with the custom of commission merchants in Duluth, and the agent may, in good faith, have been endeavoring to comply with the law in making the stated reports, but the question of good faith or intent is not involved in this action. If, under such circumstances, sale to themselves was unauthorized and prohibited, defendants could not avoid the effect of the statute in failing to report the sale which they did make, no matter what their intentions may have been. In State v. Robinson, 55 Minn. 169,

not make that lawful which was unlawful, and it was just such irregularities that the statute was intended to correct.


The law under consideration is assailed upon the ground that it is in violation of the Federal Constitution, as an interference with interstate commerce. In State Beek v. Wagener, 77 Minn. 483, 46 L.`R. A. 442, 77 Am. St. Rep. 681, 80 N. W. 633, 778, 1134, this law was declared to be not in conflict with the 14th Amendment of the Federal Constitution, nor with §§ 2 or 7, art. 1, of the state Constitution. The court at that time, after exhaustive argument, put at rest all of the questions touching upon the constitutionality of the law, except, possibly, an intimation that the statute did not apply to interstate business, but what was stated in the opinion on that point was by way of precaution or reservation only.

In the case before us, the consignor resided within the state; but, to our minds, that fact is not significant. The law applies within the state. The object of the statute to all shipments, from beyond as well as is to protect the public in its dealings with commission merchants against an infringement upon the rights of shippers of grain. Indeed, the law might be open to the objection of an unjust discrimination were its benefits conferred only upon the citizens of the state. The question of transportation is not involved. It is immaterial from whence the grain is shipped, over what route or through what states it travels to the point of destination. The provisions involved in this case take no account of the grain as an article of commerce until it has been sold; and, even then, only to require the consignee to make a true report of the transaction within a reasonable time. The subject-matter of the law as applicable to this case no more relates to interstate com

56 N. W. 594, it was held that the owner

of a drug store was not liable for a sale by one of his clerks, not a registered pharmacist, and made without his knowledge or assent. Here, however, that principle has no application. Mr. Taylor was defendants general manager, and the only person in charge of the Duluth office, and was held out to the world as their representative to transact their business, and no claim was made at the trial that he was not authorized to do the very things which he did. On the contrary, it was insisted that his attempted purchase of the flax was justified under the law, and was in accordance with the general custom. In this connection the case of State v. O'Connor, 58 Minn. 193, 59 N. W. 999, may be considered, wherein it was held that, in order to excuse himself from liability for permitting a saloon to be kept open on Sunday, the master would have to show that it was opened against his will, and not-merce than the criminal statutes which prowithstanding all reasonable efforts by him to tect grain from larceny after arrival within keep it closed. The question of intent is the borders of the state. If it be an internot material in this class of statutory of- ference with the prerogative of Congress to fenses. As remarked by Judge Cooley in require commission merchants to make a People v. Roby, 52 Mich. 577, 50 Am. Rep. true report of their dealings with citizens of 270, 18 N. W. 365, such statutes are in the Dakota or Wisconsin, for their protection, nature of police regulations, and impose a why is it not equally an interference with penalty irrespective of intent to violate interstate commerce when our criminal laws them, the object being to require a degree of are put in force to arrest and punish for diligence for the protection of the public the larceny of such grain upon arrival withwhich shall render violations impossible. in the borders of our lines? We fancy there The statute makes the act criminal without is no crying demand on the part of the citiregard to intent. State v. Heck, 23 Minn. zens of our sister states to be excluded from 549. For the reasons already stated, it was the benefit of these protective measures. immaterial that it was the custom among commission merchants at Duluth to buy grain at the highest figure for the day, in case not sold on the market. They could

This cause was submitted to the jury upon the right theory, and we find no error in the instructions or rulings. The order appealed from is accordingly affirmed.



Marion O. PROCTOR, Piff. in Err.,


Nettie M. PROCTOR.

(215 Ill. 275.)


upon defendant in a divorce suit by delivering him a copy of the bill and giving him notice of the suit at his residence in another state will give the court no jurisdiction to enter a personal judgment against him for alimony and attorneys' fees.

(April 17, 1905.)

NOTE.-Jurisdiction of equity over suits affecting real property in another state or country.

A decree for divorce is a proceeding in rem so far as it fixes the status of the parties by dissolving their marital relations. But, so far as it disposes of any other matter No interest in real estate located than the marriage, it is a proceeding in per


in another state can be vested in a complainant in a divorce proceeding by a decree which purports to deal directly with the title to the estate.

I. In general; jurisdiction limited to suits in personam, 673.

ing jurisdiction, 677.

d. Discretion as to exercising jurisdic-
tion, 678.

III. Particular subjects of jurisdiction.

| territorial jurisdiction, e. g., the effect upon dower rights in real property in one state of a decree of divorce rendered in another which contains no provision with respect to the property. The latter class of cases is not included in this note, it being confined to cases ina. Necessity of proper case for equitable volving the jurisdiction of equity over suits the intervention, 675.

II. Conditions of jurisdiction.

b. Ability to grant effective relief by a
decree in personam the criterion

avowed purpose of which is to affect real
property beyond the territorial jurisdiction,
either directly by a decree in rem, or indirect-
ly by a decree in personam. For similar rea-

of jurisdiction. 676.

c. Nonresidence of defendant as affect- sons, the cases dealing with the effect upon

real property in one state or country of a decree rendered in another admitting a will to probate or determining its construction or validity are also omitted.

a. Creation and enforcement of trusts;
substitution of trustees, 678.


RROR to the Superior Court for Cook County to review a decree in favor of plaintiff in a suit to dissolve a marriage and secure alimony. Reversed in part. The facts are stated in the opinion.

2. As between one party and cred-
itors of the other, 688.

Messrs. Clarence A. Burley and William H. McSurely, with Mr. Edward R. Hills, for plaintiff in error:


It will be observed that the foreign decree involved in PROCTOR V. PROCTOR, purported to affect directly real property in Illinois. In this respect the case is distinguishable from those that involve merely the collateral or incidental effect upon real property in one state or coun try, of a decree of divorce, or other decree, rendered in another, which does not purport upon its face to affect real property beyond the


2 Freeman, Judgm. 584; 2 Black, Judgm. 933; 9 Am. & Eng. Enc. Law, 2d ed. 745; Rigney v. Rigney, 127 N. Y. 413, 24 Am. St. Rep. 462, 28 N. E. 405; 2 Bishop, Marr.

b. Suit for specific performance, 631.

c. Suit to remove cloud upon title; to
cancel void mortgage, 682.,

It should be stated at the outset that real d. Foreclosure of mortgage or other lien. property is subject to the exclusive jurisdic


e. Suit to redeem, 685.

f. Suit to reform deed; or to have deed
declared a mortgage, 685.

tion of the courts of the state or country in
which it is located. Davis v. Headley, 22 N.
J. Eq. 115. No other courts may properly
exercise any jurisdiction over it, and this is as
true of courts of equity as of courts of law.

g. Relief from fraud.


1. As between parties or privies, Therefore, it is beyond the power of a court of one state or country to entertain a suit in rem in respect of land in another, or to render a decree either in a suit in rem or in a suit in personam which shall, ex proprio vigore,

I. In general; jurisdiction limited to suits in personam.

h. Injunction, 689.

1. Accounting and incidental relief by affect the title to real property in another state

requisition of conveyance, 691.

or country. The following cases illustrate the principle just stated:

J. Partition, 692.

k. Appointment of receiver, 693.

While, by means of its power over the person of a party. a court of equity may, in a

1. Miscellaneous, 693.

IV. Form of relief; effect and enforcement of proper case, compel him to act in relation to

decree, 694.

V. Summary, 696.


property not within its jurisdiction, its decree does not operate directly upon the property, affect the title, but is made effectual through the coercion of the defendant. Carpenter v. Strange, 141 U. S. 87, 35 L. ed. 640, 11 Sup. Ct. Rep. 960.

In Clopton v. Booker, 27 Ark. 482, the court said that it was well settled that the title to land, and the right of possession thereto, must be determined by the courts of the state wherein the land lies; that contracts may be made and obligations passed at points remote from the land intended to be affected thereby,

& Div. 1891 ed. § 79; Lynn v. Sentel, 183 Ill. 387, 75 Am. St. Rep. 110, 55 N. E. 838; Dunham v. Dunham, 57 Ill. App. 475.

Process from the tribunals of one state cannot run into another state and summon a party there domiciled to respond to proceedings against him; and process sent to him out of the state is unavailing in a proceeding to establish a personal liability.

Harkness v. Hyde, 98 U. S. 476, 25 L. ed. 237; Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565; Cloyd v. Trotter, 118 Ill. 391, 9 N. E. 507.

The authority of every tribunal is necessarily restricted by the territorial limits of the state in which it is established.

Pennoyer v. Neff, 95 U. S. 722, 24 L. ed. 569; Lynn v. Sentel, 183 Ill. 387, 75 Am. St. Rep. 110, 55 N. E. 838.

but whenever litigation must be had to test the validity of the claim to such land, whether the contract be express or implied, direct or in secret trust, resort must be had to the local laws and local courts. This seems to state the exclusive jurisdiction of the courts of the state where the land lies too broadly; for a court of a state having jurisdiction of the parties may undoubtedly declare and enforce a trust with reference to real property in another state. See infra, III. a.

No court, state or Federal, can reach, or confer title to, or sell under decree, lands situated in a state in which it does not sit. Every attempt of a court to found jurisdiction of such lands inust, from the very nature of the case. be utterly nugatory. Williams v. Nichol, 47 Ark. 254, 1 S. W. 243.

While a court of chancery which has acquired jurisdiction over the person of a party may, in a proper case, by virtue of its power to enforce obedience to its decrees, enforce the performance of contracts of lands situated in an other state, such court has no power to de. vest title to real estate in another state. Winn v. Strickland, 34 Fla. 610, 16 So. 606.

While a court of the state in which the husband is domiciled has jurisdiction to grant a divorce upon service by publication against the wife, who is a nonresident, it has no power to settle the title to lands in another state; and a general order made by it, purporting to bar the rights of the wife in the real and personal property of the husband, is ineffectual, so far as real property in another state is concerned. Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 779. The courts of one state or country are with out jurisdiction over title to lands in another state or country. Lindley v. O'Reilly, 50 N. J. L. 636, 1 L. R. A. 79, 7 Am. St. Rep. 802, 15 Atl. 379.

Ricks, Ch. J., delivered the opinion of the court:

A court of one state cannot, by its judg ment or decree, pass title to land situated in another state. Johnson v. Kimbro, 3 Head, 557, 75 Am. Dec. 781.

The defendant in error filed her bill in the circuit court of Cook county on the 18th day of April, 1901. The bill alleged the marriage of the parties, desertion for over two years on the part of plaintiff in error, and prayed that the marriage be dissolved. and that the plaintiff in error be required to pay permanent alimony and solicitors' fees. No personal service was had in this state upon the plaintiff in error. The service on the plaintiff in error was by copy of the bill, with notice of commencement of suit, and was made at Piqua, Ohio, his place of residence. No appearance was entered by or for the plaintiff in error The plaintiff in error was defaulted, and at the trial of the cause the bill was taken pro confesso. The

its decree alone, create a lien upon land in an-
other state. Hansel v. Chapman, 2 App. D.
C. 361; Short v. Galway, 83 Ky. 501, 4 Am.
St. Rep. 168; Ainsley v. Mead, 3 Lans. 116.

A decree of a court of the testator's domi-
cil in a suit brought by the widow against the
legatees and others, reciting that the defend-
ants were heirs of the deceased and entitled to
participation in the distribution of his estate,
can have no effect upon the real property of
the deceased in another state. Cooper v. Ives,
62 Kan. 395, 63 Pac. 434.

Real property situated in one state cannot be subjected to the payment of a widow's allowance either by a statute or by a decree of a court of another state, in which the owner of the property was domiciled at the time of his death. Smith v. Smith, 174 Ill. 52, 43 L. R. A. 403, 50 N. E. 1083.

So a decree rendered in one state, revoking the probate of a will, does not conclusively affect the title to land in another state. Doe ea dem. Pritchard v. Roe, 2 Penn. (Del.) 553, 47 Atl. 376.

So in Harrison v. Harrison, L. R. 8 Ch. 342, the court said: "As against the real estate in Scotland, the courts of England have no jurisdiction at all. Any jurisdiction which they can exercise as to the real estate in Scotland can only be through the medium of some personal equity attaching to the owner in Scotland of that real estate."

Originally courts of chancery acted only in personam, and never in rem; and, although they are now commonly authorized by statute to render a decree in rem when the interests of justice require, they still act in personam when occasion demands. Therefore, when a case otherwise properly cognizable in equity is presented, a court of equity having personal jurisdiction of the parties may, in the exercise of its discretion, assume jurisdiction of the subject-matter, although land in another state may be affected, if it can grant effective relief by a decree acting solely upon the person whose title or interest in the land is to be affected, as distinguished from a decree acting directly upon the land. In other words, the court may, in a proper case for equitable intervention, by virtue of its jurisdiction over such person, and its consequent power to enforce obedience to its decree in personam, compel him to do with re

A court of one state cannot decree a sale of lands lying in another state. Poindexter v. Burwell, 82 Va. 307.

The courts of Virginia are without jurisdiction to sell and convey land situated beyond the limits of the state. Gibson v. Burgess, 82 Va. 650.

So a court cannot directly, and by virtue of spect to land beyond the territorial jurisdiction

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