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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. I. 260; Trade. Account of Victor Carlson, Hallock,
Com. v. Smith, 103 Mass. 444; People v. Minn.
Cipperly, 101 N. Y. 634, 4 N. E. 107; State,

Bayles, Prosecutor, v. Newton, 50 N. J. L. Date un-

loaded. 549, 18 Atl. 77; Com. v. Gray, 150 Mass.

Grade. Freight. Sold. Welght

Jan. 21. 21048. Flax. 83.34 1_19. 980.10. 327, 23 N. E. 47; People v. Longwell, 120

No. 1 14 % Mich. 311, 79 N. W. 484.

Shrinkage Net Weight Price. Amount Mr. Bert Fesler also for respondent. by cleaning. Delivered.


842.54 11912 $1007.33

75 Lewis, J., delivered the opinion of the

Freight and Inspection $83.09 court:


.25 Upon the complaint of Charles P. Staples, Interest a member of the State Railroad & Ware. Insurance..

.40 house Commission, defendants, commission Commission 12 %

5.04 88.78 merchants, doing business at Duluth, were

918.55 charged with having violated the provisions

700.00 of g 2, chap. 225, p. 246, Laws 1899, in failing to render a true statement to the con Balance to your credit ..218.55 signor concerning a consignment of flax. A plea of not guilty was entered, and the trial January 20th, defendants sold the carload resulted in a verdict of guilty. The case is of Hax to the Hall Elevator Company at Dubrought here upon appeal by defendants luth at $1.20 per bushel, an advance of 12 from an order denying their motion for a cent, but of this sale made no report to connew trial.

signor. Defendants claim the sale was made It is undisputed that the consignor, Vic- to themselves at the close of the business tor Carlson, resided at Hallock, Minnesota, day, January 19th, and that the letter of and shipped a carload of flax to defendants that date, and the account stated, of date at Duluth, to be sold by them on commis- January 22d, constituted a report of the sion; that the car was shipped from Hal- transaction within the requirement of the lock, January 14th, over the Great Northern statute. Defendants further claim that Railroad, reaching Duluth January 19, 1903. there was a subsequent ratification of the Carlson made a draft upon defendants for transaction by the consignor. $700, attached the bill of lading, and sent

At the trial, the court instructed the jury it through a bank for collection. The flax that, when grain is consigned to commission was inspected January 19th at Duluth, and merchants to be sold upon commission, it is was ready to be sold upon the market that their duty to sell it in the open market for day. The evening of January 19th defend the best obtainable price, and remit to the ants wrote consignor the following letter: shipper the amount of the sale, less com

mission and necessary disbursements; that Duluth, Minn., Jany. 19th, 1903. commission merchants have no right, when Mr. Victor Carlson, Hallock, Minn. grain has been consigned to be sold on comDear Sir:

mission, to themselves purchase it, and that We have received the following car of flax an attempt so to do is not binding upon the from you to-day, which inspected and sold shipper; that if such an attempt is made, (subject to comparison with sample) for and thereafter the grain is sold to an actual your account and risk as stated below:

purchaser, the law requires the commission

merchants to make a true report of the

Car No.

Sold at

amount received at the sale to the actual

sold 21048 G. N. No. 1 Flax 14% 11912 purchaser within twenty-four hours there

after; 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 authority to themselves purchase the grain, awaiting your further orders, we remain,

and any such attempt at purchase would not Yours truly,

relieve them of the positive duty to report Edwards, Wood, & Co.,

to Carlson the sale to a subsequent legal Geo. K. Taylor, Mngr.

purchaser. The court refused to instruct the January 22d the following account was jury, upon request of defendants, to the efrendered:

fect that they were not guilty if the jury

should find that the duly authorized agent Duluth, Minn., Jan. 22nd, 1902. of defendants sold the carload of flax to Account sales of Elwards, Wood, & Co., I 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 usagesly 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 reasonabledil. such 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 accountments of grain shipped to them to be sold able therefor. The record conclusively shows upon commission at the highest market that on the following day the car of flax, price for the day, in the event that other without being unloaded, was disposed of by purchasers could not be obtained. The in- defendants to the Hall Elevator Company at struction of the court to the following ef- an advance of 12 cent a bushel. Under the fect is also questioned: “The offense law of agency such sale inured to the benecharged is that of omitting to perform a fit of defendants' principal, and the attemptpositive duty enjoined upon the commissioned sale to themselves, as testified to by their merchants by the law of the state, and it is agent, was, prima facie, a nullity. We canimmaterial whether he actually knew any. not accept as applicable to this case the thing about the transaction, if the grain was proposition that, if the shipper made no proshipped to them to be sold upon commission, test after receiving the report of the alor was sold by them, or any authorized per- leged sale and the proceeds thereof, he son acting for them, on commission.” thereby accepted and ratified the sale. On

Section 1, chap. 225, p. 245, defines the the other hand, it was the duty of defendpurpose of the act, and declares it to be ants to clearly show that the shipper not unlawful to do business without procuring only knew the sale was made to themselves, a license and giving a bond for the benefit upon which point the report of sale is silent, of persons intrusting commission merchants but that he also knew that subsequently dewith consignments; that, if such commission fendants sold the flax at an advanced price, merchant receive grain for sale on commis- and, being possessed of all these facts, he acsion, the bond shall be conditioned that he cepted the proceeds of the sale to defendants faithfully account and report to all persons as final, and waived his right to profits on intrusting him with grain for sale, less com- account of the subsequent sale. In this remission and disbursements; and that, if he spect the evidence entirely fails. Conceding does not receive grain for sale on commis- there is evidence tending to show that the sion, the bond shall be conditioned upon the manager, Mr. Taylor, sold the flax to defend. faithful performance of his duties as such ants, and made a report thereof, the evicommission merchant. The record shows dence fails to show that the consignor ever that defendants were duly licensed to sell accepted the transaction after being put in grain, exclusive of other agricultural prod- full possession of all the facts. ucts and farm produce, on commission, at The complaint charged that defendants Minneapolis and Duluth, and that they duly wilfully and unlawfully neglected and failed executed and delivered their bond, as pro- to render the statement within the time revided by law, conditioned to faithfully ac- quired, 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 I all charges and expenses paid or incurred; and defendants were put on trial upon that, not make that lawful which was unlawful, charge, and none other. The statement in and it was just such irregularities that the the complaint that they wilfully made a statute was intended to correct. false report was unnecessary, and mere sur- The law under consideration is assailed plusage. Upon the trial, however, in sup- upon the ground that it is in violation of port of the offense charged, it was proper to the Federal Constitution, as an interference prove what reports were made, and that with interstate commerce. In State er rel. such reports were not those required by law. Beck v. Wagener, 77 Minn. 483, 46 L.‘R. A. Defendants' business was conducted through 442, 77 Am. St. Rep. 681, 80 N. W. 633, their local manager, and, it may be ad-178, 1134, this law was declared to be not in mitted, they were acting in good faith, in conflict with the 14th Amendment of the accordance with the custom of commission Federal Constitution, nor with $8 2 or 7, merchants in Duluth, and the agent may, in art. 1, of the state Constitution. The court good faith, have been endeavoring to comply at that time, after exhaustive argument, put with the law in making the stated reports, at rest all of the questions touching upon but the question of good faith or intent is the constitutionality of the law, except, posnot involved in this action. If, under such sibly, an intimation that the statute did not circumstances, a sale to themselves was un apply to interstate business, but what was authorized and prohibited, defendants could stated in the opinion on that point was by not avoid the effect of the statute in failing way of precaution or reservation only. to report the sale which they did make,

In the case before us, the consignor reno matter what their intentions may have sided within the state; but, to our minds, been. In State v. Robinson, 55 Minn. 169, that fact is not significant. The law applies 56 N. W. 594, it was held that the owner of a drug store was not liable for a sale by within the state. The object of the statute

to all shipments, from beyond as well as one of his clerks, not a registered pharmacist, and made without his knowledge or as

is to protect the public in its dealings with sent. Here, however, that principle has no

commission inerchants against an infringe. application. Mr. 'aylor was defendants

ment upon the rights of shippers of grain. general manager, and the only person in Indeed, the law might be open to the objeccharge of the Duluth office, and was held out tion of an unjust discrimination were its to the world as their representative to trans- benefits conferred only upon the citizens of act their business, and no claim was made the state. The question of transportation is at the trial that he was not authorized to do not involved. It is immaterial from whence the very things which he did. On the con. the grain is shipped, over what route or trary, it was insisted that his attempted through what states it, travels to the point purchase of the flax was justified under the of destination. The provisions involved in law, and was in accordance with the general this case take no account of the grain as custom. In this connection the case of State an article of commerce until it has been v. O'Connor, 58 Minn. 193, 59 N. W. 999, sold; and, even then, only to require the may be considered, wherein it was held that, consignee to make a true report of the in order to excuse himself from liability for transaction within a reasonable time. The permitting a saloon to be kept open on Sun- subject matter of the law as applicable to day, the master would have to show this case no more relates to interstate comthat 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. Rohy, 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 This cause was submitted to the jury upcommission merchants at Duluth to buy on the right theory, and we find no error in grain at the highest figure for the day, in the instructions or rulings. The order apcase not sold on the market. They could pealed from is accordingly affirmed.



Marion 0. PROCTOR, Plff. in Err.,

E to the

County to review a decree in favor of
Nettie M. PROCTOR.

plaintiff in a suit to dissolve a marriage

and secure alimony. Reversed part. (215 Ill. 275.)

The facts are stated in the opinion.

Messrs. Clarence A. Burley and Wil1. Service upon defendant in di- liam H. McSurely, with Mr. Edward R.

vorce suit by delivering him a copy Hills, for plaintiff in error: of the bill and giving him notice of the

A decree for divorce is a proceeding in rem suit at his residence in another state will give the court no jurisdiction to enter a per

so far as it fixes the status of the parties sonal judgment against him for alimony and by dissolving their marital relations. But, attorneys' fees.

so far as it disposes of any other matter 2. No interest in real estate located than the marriage, it is a proceeding in perin another state can be vested in a

sonam. complainant in a divorce proceeding by a decree which purports to deal directly 933; 9 Am. & Eng. Enc. Law, 2d ed. 745 ;

2 Freeman, Judgm. 584; 2 Black, Judgm. with the title to the estate.

Rigney v. Rigney, 127 N. Y. 413, 24 Am. (April 17, 1905.)

St. Rep. 462, 28 N. E. 405; 2 Bishop, Marr. NOTE.Jurisdiction of equity over suits affect- | territorial jurisdiction, e. 9., the effect upon ing real property in another state or country. dower rights in real property in one state of

a decree of divorce rendered in another which I. In general; jurisdiction limited to suits

contains no provision with respect to the propin personam, 673.

erty. The latter class of cases is not includII. Conditions of jurisdiction.

ed in this note, it being confined to cases ina. Necessity of proper case for equitable volving the jurisdiction of equity over suits the intervention, 075.

avowed purpose of which is to affect real b. Ability to grant effective relief by a property beyond the territorial jurisdiction, decice in personam the criterion

either directly by a decree in rem, or indirectof jurisdiction. 676.

ly by a decree in personam. For similar reac. Nonresidence of defendant as affect- sons, the cases dealing with the effect upon ing jurisdiction, 677.

real property in one state or country of a ded. Discretion as to exercising jurisdic- cree rendered in another admitting a will to tion, 678.

p'robate or determining its construction or vaIII. Particular subjects of jurisdiction.

lidity are also omitted.
a. Creation and enforcement of trusts;
substitution of trustecs, 678.

I. In general; jurisdiction limited to suits in b. Suit for specific performance, 631.

c. Suit to remore 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 jurisdic682.

tion of the courts of the state or country in e. Suit to redcem, 685.

which it is located. Davis v. Headley, 22 N. f. Suit to reform deed ; or to have deed J. Eq. 115. No other courts may properly declared a mortgage, 685.

exercise any jurisdiction over it, and this is as g. Relief from fraud.

true of courts of equity as of courts of law. 1. As between parties or privies, Therefore, it is beyond the power of a court 686.

of one state or country to entertain a suit in 2. As beticeen one party and cred- rem in respect of land in another, or to render itors of the other, 688.

a decree either in a suit in rem or in a suit h. Injunction, 689.

in personam which shall, ex proprio vigore, i. 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 1. Partition, 692.

principle just stated : k. Appointment of receiver, 693.

While, by means of its power over the per1. Miscellaneous, 693.

son of a party. a court of equity may, in a IV. Form of relief ; effect and enforcement of proper case, compel him to act in relation to decree, 694.

property not within its jurisdiction, its decree V. Summary, 696.

does not operate directly upon the property, Scope.

affect the title, but is made effectual

through the coercion of the defendant. Car. It will be observed that the foreign decree penter v. Strange, 141 U. S. 87, 35 L. ed. 640, involved in PROCTOR v. PROCTOR, purported to 11 Sup. Ct. Rep. 960. affect directly real property in Illinois. In this In Clopton v. Booker, 27 Ark. 482, the court respect the case is distinguishable from those said that it was well settled that the title to that involve merely the collateral or incidental land, and the right of possession thereto, must effect upon real property in one state or coun- be determined by the courts of the state wheretry, of a decree of divorce, or other decree, in the land lies; that contracts may be made rendered in another, which does not purport and obligations passed at points remote from upon its face to affect real property beyond the the land intended to

be affected thereby, upon the land.


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& Div. 1891 ed. $ 79; Lynn v. Sentel, 183 Ricks, Ch. J., delivered the opinion of
lll. 387, 75 Am. St. Rep. 110, 55 N. E. the court:
838; Dunham v. Dunham, 57 Ill. App. 475. The defendant in error filed her bill in

Process from the tribunals of one state the circuit court of Cook county on the 18th cannot run into another state and summon a day of April, 1901. The bill alleged the party there domiciled to respond to proceed marriage of the parties, desertion for over ings against him; and process sent to him two years on the part of plaintiff in error, out of the state is unavailing in a proceeding and prayed that the marriage be dissolved, to establish a personal liability.

and that the plaintiff in error be required Harkness v. Hyde, 98 U. S. 476, 25 L. ed. to pay permanent alimony and solicitors' 237; Pennoyer v. Neff, 95 U. S. 714, 24 L. fees. No personal service was had in this ed. 565; Cloyd v. Trotter, 118 Ill. 391, 9 N. state upon the plaintiff in error. The servE. 507.

ice on the plaintiff in error was by copy of The authority of every tribunal is neces- the bill, with notice of commencement of sarily restricted by the territorial limits of suit, and was made at Piqua, Ohio, his place the state in which it is established.

of residence. No appearance was entered by Pennoyer v. Neff, 95 U. S. 722, 24 L. ed. or for the plaintiff in error The plaintiff in 569; Lynn v. Sentel, 183 III. 387, 75 Am. St. error was defaulted, and at the trial of the Rep. 110, 55 N. E. 838.

cause the bill was taken pro confesso. The

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but whenever litigation must be had to test the its decree alone, create a lien upon land in anvalidity of the claim to such land, whether the other state. Hansel v. Chapman, 2 App. D. contract be express or implied, direct or in C. 361; Short v. Galway, 83 Ky. 501, 4 Am. secret trust, resort must be had to the local St. Rep. 168; Ainsley v. Mead, 3 Lans. 116. laws and local courts. This seems to state the A decree of a court of the testator's domiexclusive jurisdiction of the courts of the state oil in a suit brought by the widow against the where the land lies too broadly; for a court of legatees and others, reciting that the defend a state having jurisdiction of the parties may ants were heirs of the deceased and entitled to undoubtedly declare and enforce a trust with participation in the distribution of his estate, reference to real property in another state. can have no effect upon the real property of See infra, III. a.

the deceased in another state. Cooper v. Ives, No court, state or Federal, can reach, or con. 62 Kan. 395, 63 Pac. 434. fer title to, or sell under decree, lands situ- Real property situated in one state cannot ated in a state in which it does not sit. Every be subjected to the payment of a widow's al. attempt of a court to found jurisdiction of such lowance either by a statute or by a decree of lands inust, from the very nature of the case. a court of another state, in which the owner be utterly nugatory. Williams v. Nichol, 47 of the property was domiciled at the time of Ark. 254, 1 S. W. 243.

his death, Smitb v. Smith, 174 III. 52, 43 L. Wblle a court of chancery which has ac- R. A. 403, 50 N. E. 1083. quired jurisdiction over the person of a party So a decree rendered in one state, revoking Diay, in a proper case, by virtue of its power to the probate of a will, does not conclusively afenforce obedience to its decrees, enforce the per- fect the title to land in another state. Doe forntance of contracts of lands situated in an er dem. Pritchard v. Roe, 2 Penn. (Del.) 553, other state, Slici court has no power to de. 47 Atl. 376. vest title to real estate in another state. Winn So in Harrison v. Harrison, L. R. 8 Ch. 342, v. Strickland. 34 Fla. 610, 16 So. 606.

the court said: “As against the real estate While a court of the state in which the hus. in Scotland, the courts of England have no band is domiciled has jurisdiction to grant a jurisdiction at all. Any jurisdiction which divorce upon service by publication against the they can exercise as to the real estate in Scotwife, who is a nonresident, it has no power to land can only be through the medium of some settle the title to lands in another state ; and personal equity attaching to the owner in Scota general order made by it, purporting to bar land of that real estate." the rights of the wife in the real and personal Originally courts of chancery acted only in property of the busband, is ineffectual, so far personam, and never in rem; and, although as real property in another state is concerned. they are now commonly authorized by statute Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 779. to render a decree in rem when the interests of

The courts of one state or country are with- justice require, they still act in personam out jurisdiction over title to lands in another when occasion demands. Therefore, when state or country. Lindley V. O'Reilly, 50 N. case otherwise properly cognizable in equity is J. L. 636, 1 L. R. A. 79, 7 Am. St. Rep. 802, presented, a court of equity having personal ju15 Atl. 379.

risdiction of the parties may, in the exercise of A court of one state cannot, by its judg | its discretion, assume jurisdiction of the subment or decree, pass title to land situated in ject-matter, although land in another state another state. Johnson v. Kimbro, 3 Head, may be affected, if it can grant effective relief 557, 75 Am. Dec. 781.

by al decree acting solely upon the person whose A court of one state cannot decree a sale of title or interest in the land is to be affected, lands lying in another state, Poindexter v. as distinguished from a decree acting directly Burwell, 82 Va. 307.

In other words, the court may, The courts of Virginia are without jurisdic- in a proper case for equitable intervention, by tion to sell and convey land situated beyond virtue of its jurisdiction over such person, and the limits of the state. Gibson v. Burgess, 82 its consequent power to enforce obedience to its Va. 630.

decree in personam, compel bim to do with reSo a court cannot directly, and by virtue of spect to land beyond the territorial jurisdiction

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