Laws - Extra-Territorial Force of A. W. PIERCE v. THE CHICAGO AND NORTHWEST- ture in Johnson's claim of title. Even admitting the validity Conflict of Supreme Court of Wisconsin, June Term, 1874. 1. Attachment by Garnishment-Levy upon Exempted Debt-Duty of Garnishee to notify Court of Exemption.-A granishee who knows that the property of the attachment-debtor in his possession, or the money which he owes such debtor, is by law exempt from attachment and execution, must bring that fact to the notice of the court; otherwise the judgment against such garnishee, and satisfaction thereof, will not bar an action against him by the attachment-debtor. So held in a case where the principal debtor was not personally served with process in the attachment suit, and had no notice either of that suit or of the proceeding in garnishment. 2. Statutory Exemption of Earnings-Presumption as to Foreign Laws. have to provide for the entire support of a family" in this state, for the sixty days next The title of the Browns to the 160 acre tract, which was all that property conveyed by them, is easily traced. Abigail held it as the widow of Wesley Smith, and under a deed from Hester Jones, the daughter and sole heir of Smith, executed by said daughter during infancy, with her husband Ezra Jones joined in its execution. This deed has never been-Under the laws of Wisconsin, "the earnings of all married persons, or persons who affirmed after the legal majority of the grantor, unless we are to construe the second acknowledgment of the joint deed to Johnson, not only as an affirmance of that instrument, but also of the prior one made to her mother. Unless Hester Jones-now Robison—is estopped by the recitals in the joint deed to Johnson, declaring that Abigail Brown is the absolute owner of the 160 acre tract, she-Hester-is still entitled to said land, subject to her mother's dower-interest of one-third for life. preceding the issue of any process against them, are exempt from levy, seizure or sale upon such process, and can not be garnished on attachment. And it seems that where laws of Illinois are similar to our own in that respect. that question arises in any case, it must be presumed, in the absence of proof, that the 3. Garnishment of Corporation Existing under Laws of Wisconsin and another State-Action by Original Debtor against Garnishee.-Where a cor poration existing under the laws both of Wisconsin and of another state, has been garnished in the latter state, in an attachment suit against a resident of Wisconsin, and has suffered and satisfied a judgment against it as garninshee, and is afterwards sued in Wis consin by the attachment-defendant, for the same property or indebtedness for which it was thus garnished, it must be treated in such action as a domestic corporation, and presumed to know the exemption laws of Wisconsin. 4. —. Duty of Garnishee Corporation to notify Debtor of Proceedings. In such a case, the proceedings in attachment being ex parte, without service of process on the attachment-debtor, or notice to him of the action, it is the duty of the garnishee corporation, in order to protect itself, to notify the debtor of the pendency of proceedings in garnishment, and request him to defend. 5. ———. The doctrine of estoppel can hardly apply to a married woman's conveyance so long as it covenants to not bind her except so far as may be necessary effectually to convey from her and her heirs, all her right, title and interest expressed to How in Case of Foreign Corporations.-Whether the rules be conveyed therein. And especially would it not apply to above stated would be different with respect to a merely foreign corporation, is not here this deed, for the purpose of divesting her title to the quarter section, when the only interest expressed to be conveyed by her is in the 80 acre tract. It has been definitely settled, at least in Missouri, that a married woman can not be estopped by the recitals in her deed. Hempstead v. Easton, 33 Mo. 142. See also upon this subject, Jackson v. Stevens, 16 Johns. 110; 17 Ib. 167; Urquart v. Clark, 2 Rand. 549; 5 Mason, C. C. 59 ; Ib. 1 T. L. 757. decided. 6. Case in Judgment.-P., a resident of Wisconsin, had a claim for wages (which by the laws of this state was exempt from attachment and from garnishment), against a railroad company, existing under charters from this state and from Illinois. In attachment suits brought against P. in Illinois, said company was garnished for the amount of its indebtedness to him. There was no personal service upon P. of any summons, or notice of any process; and he had no actual notice of any of the proceedings, and did not appear in any manner therein. Judgments were recovered against him and also against the defendant company as garnishee, and the company satisfied the judg ment against it. Afterwards this action was brought by P. against the company, upon 185;ings, to exhaust all means to avoid a judgment against it, and, for this purpose, to bring his said claim. Held, that it was the duty of the company, in the garnishee proceed It may be supposed that even although the affirmance of the deed by Hester fails to divest title to the 80 acre tract, still having been executed by her husband and co-tenant, the title to his moiety has passed subject to her dower. Even this is not conceded, for the conveyance of lands to husband and wife does not constitute them either joint tenants, at common law, or tenants in common by virtue of the statute. Wag. Stat. p. 1352, § 12. They are both seized of the entirety per tout et non per my. Neither can dispose of any part without the assent of the other, but the whole remains to the survivor. Co. Litt. 187; Bl. Com. 182; 1 Cowan, 95; 8 Ib. 277; 16 Johns. 110. to the notice of the court the fact that P.'s claim was exempt; or to notify P. of the proceedings, and request him to defend; and having failed to do either of these things, satisfaction thereof. it is not protected in this action by the judgment in garnishment against it, and the ant corporation is protected by the garnishee proceedings in ChiCOLE, J.-The sole question in this case is, whether the defendcago. The facts upon which the question arises have been stipulated, from which it appears that the plaintiff, who is a married man and the head of a family, residing in Oshkosh, performed work for the defendant at its machine-shop in that city, in the months of June, 1872, and February and March, 1873, for which he was entitled to receive the amounts specified, and which he seeks to recover in this action. In June, 1872, and February, 1873, Louis Pelleten and O. M. Tompkins, residents of Fond du Lac and creditors of the plaintiff, commenced against him in Chicago, their respective suits before magistrates in that city, and gar So that, unless the affirmance was good, a disaffirmance by Hester Jones, after attaining her majority and becoming dis-nished the defendant. In those suits, notices were given and sercovert, would leave Matthias Johnson with no interest in the land, beyond the life estate of Abigail Brown, in the quarter section. W. P. W. vice of process were made according to the laws of Illinois in case of non-resident defendants; and judgments were finally recovered against the plaintiff in these actions, and also against the defendant as garnishee, which the defendant paid and satisfied. It -THE President has issued a proclamation extending the time for the ad- is now claimed that these judgments are conclusive upon the quesjudication of the Alabama claims six months. tion of the defendant's liability as garnishee in those actions, and It follows from these views that the judgment of the circuit court must be affirmed. By the court. IT IS SO ORdered. NOTE.-I. The foregoing opinion bears upon its face unmistakable evidence of having been poorly considered and hastily written, and is, we think, wholly unsupported by respectable authority. constitute a complete defence to this suit. It is also admitted and stipulated that no personal service was had in those suits, of any writ, summons, or notice upon the plaintiff in this action, and that he has not been in the state of Illinois, temporarily or otherwise, since January 1st, 1872. And it is further stipulated that the plaintiff in this action had no actual notice of any of the proceedings in which either of said judgments were obtained. And the question, therefore, is: What effect must be given these judgments obtained under such circumstances? Do they protect and discharge the defendant to the extent of the amounts paid upon them? Werem, it is too late for a party to the record to assert any claim to the property, are all of the opinion that they do not. The garnishee proceedings instituted in Illinois are conceded to have been prosecuted in conformity with the laws of that state. Such being the case, the judgment therein was conclusive as to all parties to the record, whether After a judgment or decree in actually served with notice of the suit or not. either under an exemption law or otherwise, which might have been made and determined in that suit. Rector v. Rolton, 3 Neb. 171; Haynes v. Meek, 14 Iowa, 320; Baxter v. Dear, 24 Texas, 17; Slaughter v. Detiney, 15 Ind. 49; Perkins v. Bragg, 29 Ind. 507; Bank of U. S. v. Beverly, 1 How. 148; The Mary, 9 Cranch, 126; Gilston v. Hoyt, 3 Wheat. 246; Williams v. Armroyd, 7 Cranch. 423; Bissell v. Briggs, 9 Mass. 462; Holmes v. Remsen 20 Johns. 229. 2. It is doubtless true, that under such circumstances, a garnishee might be guilty of such frand as would estop him from setting up the garnishment proceedings, and payment thereunder, in a suit against him by the defendant in the attachment, but it would seem that nothing short of actual fraud or wilful neglect would subject the judgment against the garnishee to a collateral attack. And, in the case under consideration, no such state of facts was shown as would make the judgment against the garnishee void as between the defendant company and the plaintiff herein. But even if the garnishee was bound to plead the exemption at its peril, the failure to do so ought not to make it liable to pay the debt twice, unless such plea would have constituted a defence to the garnishment, and it is clear to us that it would not have constituted a defence. lates to the remedy, and is governed by the law of the place where the con The exemption of the person or property of a debtor from execution re By the statute of this state, the earnings of a married man who has to provide for the support of a family in Wisconsin-for sixty days next preceding the issuing of any process from any court against him, are exempt, and are not liable to be garnished on attachment. Sec 40, Ch. 134, R. S.; Tay. Stat. 1553; Brown v. Hebard, 20 Wis. 326; Burlander v. M. & St. P. Ry. Co., 26 Ib. 76; Winterfield V. M. & St. P. Ry. Co., 29 Id. 588. In the last case there is a very strong intimation that if the garnishee knows that the property, money or indebtedness in his possession or under his control is exempt, it is his duty, for selfprotection, to bring that fact to the notice of the court; otherwise the judgment against him, and the satisfaction thereof, will be no bar to an action by the attachment-defendant, Applying the rules there recognized, it was plainly the duty of the defendant company to state in its answer as garnishee, that the wages of the plaintiff were exempt. To this it is answered, that the defendant was garnished in Illinois, and could only respond as to the fact of its indebtedness to the plaintiff and its liability to pay the debt; and that it would have been of no avail for the defendant to object that the moneys due were earnings which were exempt by the laws of this state. This however, does not fully meet the difficulty, because, for aught we know, the earnings might be exempt by the laws of that state, and in the absence of all proof upon the subject, the presumption is, that they were exempt. Rape v. Heaton, 9 Wis. 329. But there is a further and perhaps better reason for holding that the defendant is not protected by those garnishee proceedings, which is, that those proceedings were ex parte, without any service of process on the plaintiff, and no notice given him of those actions. In such a case we deem it a perfectly reasonbale and proper rule to hold, that the defendant, in order to protect itself, should have notified the plaintiff of the pendency of these proceedings, and requested him to defend. There is surely no hardship in that rule as applied to the defendant-a corporation created and operating its road under only requires that the tribunals of the state shall be open to citizens of other tract is sought to be enforced, and not by the lex loci contractus. Newell v. mined by the lex loci contractus; the remedy by the lex fori. 3. The nature, construction and validity of foreign contracts are deter states as they are to its own, and that they shall enforce the same remedies, and none other." Bank of Gallipolis v. Trimble, 6 B. Mon. 599. 4. While seeming to insist that the exemption law of Wisconsin ought to have been set up as a defence by the garnishee, the court said it was no an the laws of Wisconsin as well as under the laws of Illinois. It must be assumed that the corporation or its officers were familiar with our laws, and knew that the earnings of its creditor were exempt. It should therefore have claimed the benefit of the exemp-swer that such exemption could not be made available in Illinois, upon the tion for him; or at least have given him notice of the pendency facts before the court, because the earnings might be exempt by the laws of of these proceedings, and afforded him an opportunity to defend. Illinois, and that in absence of proof upon the subject, the court would preThis we think, was essential in order to protect itself against a sub-sume that they were so exempt, as the courts of Wisconsin will not take judisequent action by him to recover the debt. For the purpose of this case it must be treated as a domestic corporation, and it had a duty to perform in reference to the defendant in the attachment. Whether the rule would be otherwise in respect to a purely foreign corporation summoned as garnishee, is a question we need not consider. But in this case there can be no doubt that the defendant should have exhausted all means to avoid a judgment against it, or have given notice to the plaintiff of the pendency of the garnishee proceedings in order that he might defend against them. The case of Adams v. Filer, 7 Wis. 307, has a bearing upon the question before us; though it is true it appeared there that Filer was a stranger to the record in the garnishee suit. But much of the reasoning of the court in that case is applicable here to show what the garnishee should do to make the judgment against him binding upon its creditor. See also Johann v. Rufener, Garnishee, 32 Wis. 195. cial notice of the statute laws of a sister state. Rape v. Henton, 9 Wis. 329. The decision must be founded upon the rule that, in the absence of proof to the contrary, the court would presume that the statute of Wisconsin giving the exemption, there had been enacted in Illinois. If such an extraordinary presumption was indulged in by the court below, it ought to have given judgment for the defendant. The statute of Wisconsin provides "that the earnings of all married persons, or persons who have to provide for the entire support of a family in this state, for sixty days next preceeding the issuing of any process, etc., should be exempt," etc. This statute would not avail a party who has to support a family in Illinois; hence if a similar law had been enacted in Illinois it could not avail a party who was the head of a family in Wisconsin. As a matter of fact the exemption law of Illinois on this subject was wholly unlike the Wisconsin law. It is simply ridiculous for a court to say that there is a presumption that the legislatures of all the states automatically make and unmake the same laws, so as to keep them uniform throughout the Union. A presumption of law that must necessarily be false in fact, and that never had any foundation in reason, can not prove a very valuable guide in determining the rights of litigants. In fact the Supreme Court of Wisconsin does not follow the rule consistently. In Hull v. Augustin, 23 Wis., it was held there was no presumption that the usury law of that state had been adopted in Illinois, in the absence of proof to that effect, but the case was decided on the presumption that the common law was in force; and that is the only presumption that can be entertained that does not involve an absurdity. The authorities are overwhelming in support of the rule, that in the absence of proof to the contrary, the common law will be presumed to prevail in a sister state, so far as applicable to our institutions. Shepherd v. Nabors, 6 Ala. 631; Titus v. Scantling, 4 Blackf, 89; Walker v. Walker, 41 Ala. 353; Norris v. Harris, 15 Cal. 226; Crouch v. Hall, 15 Ill. 263; Schurman v. Marley, 29 Ind. 458; High, Appellant, 2 Doug. (Mich.) 515; Abell v. Douglass, 4 Denio, 305; White v. Knapp, 47 Barb. 549; Throop v. Hatch, 3 Abb. Pr. 23; Whiteford v. Panama Rail. Co., 23 N. Y. 465; Selma, etc., Rail. Co. v. Lacy, 43 Ga. 461; Brown v. Pratt, 3 Jones (N. C.) Eq. 202; Houghtaling v. Bell, 19 Mo. 84; Kermott v. Ayer, 11 Mich. 181; People v. Lambert, 5 Mich. 349; Cooke v. Crawford, 1 Texas, 9; Girard v. City of Philadelphia, 4 Rawle, 333; Holmes v. Broughton, 10 Wend. 75; Greenewade v. Greenewade, 3 Dana, 495; Bernard v. Barry, 1 Greene (Iowa), 388. 5 The cases are very numerous in which it has been said that while the law of another state is a fact to be proved, as any other fact, yet when the law of the place where the contract was made, or the right accrued, is not shown, it will be presumed to be the same as that of the forum. See Whedden v. Seelye, 40 Maine, 253; Legg v. Legg, 8 Mass. 99; Leavenworth v. Brockway, 2 Hill, 201; Allen v. Watson, 2 Hill's S. C. 319; Crozier v. Hodge, 3 Mill. (Lou.), 357; Brown v. Gracey, 16 Eng. Com. Law R. 426; Woodson v. O'Conner, 28 Vt. 776; Sayre v. Wheeler, 32 Iowa, 559; Bean v. Briggs, 4 Iowa, 466; Rope v. Heaton, 9 Wis. 328; Sherill v. Hopkins, 1 Cow. 103; Monroe v. Douglass, 1 Seld. 447; Draggs v. Graham, 9 Ind. 212; Rogers v. Hatch, 8 Nevada, 35. An examination of these cases, and others that follow them, will show that they are not necessarily inconsistent with the rule stated in the preceding paragraph, and that they are no authority for holding that the local statutes of our state have been adopted in all others. Whedden v. Seelye was an action of trover. The conversion was laid in New Brunswick. The defendant relied on a local law of New Brunswick but failed to offer tl.e law in evidence. The court refused to take judicial nɔtice of the foreign law, and decided the case on common law principles, without regard to the statute law of Maine. Thus, in effect, presuming that the common law prevailed in New Brunswick. Legg v. Legg was decided on the presumption that the common law was in force in Vermont. The court said: "We presume the laws of Vermont to be similar to ours on this subject, unless the contrary is regularly shown." The law which was presumed to be in force in Vermont was that " marriage is an absolute gift to the husband of all the wife's personal chattels in possession; and so it is also of choses in action, if he reduces them into possession by receiving or recovering them at law." And such was the view taken of this case in Holmes v. Broughton, 10 Wend. 75, when it was said: In the case of Legg v. Legg, 8 Mass. R. 99, the same court declare that they could not judicially take notice of the laws of Vermont, and that upon the point there stated, which was a common law question, they must presume the laws of Vermont to be the same as their own. The doctrine of this highly respectable court seems to me to be sound." Leavenworth v. Hill was decided on the presumption that the common or commercial law of Ohio was the same as that of New York. Allen v. Watson was an action to recover money won by defendants in Georgia, at faro, from plaintiff's clerk. Held, that in absence of proof of the laws of Georgia on the subject, the court must decide the case by the laws of South Carolina, which made the transaction unlawful. But it was not necessary to invoke the aid of a local statute to determine the legality of such a transaction. It was unlawful at common law. Crozier v. Hodge was an action by a surviving partner, as such, of a firm in Pennsylvania. Held, that in absence of proof as to the laws of Pennsyl vania, there was a defect of parties, as by the laws of Louisiana, a surviving partner could not sue as such, and it was further said that plaintiff's right to sue was not clear, even though the law of Pennsylvania authorized it. In regard to this case it may be said that the common law does not prevail in that state to its full extent, and that the right of the surviving partner to sue relates to the remedy, and is properly governed by the law of the forum. Brown v. Gracey was an action on a note made in Scotland, and which was valid at common law. It was contended that before the plaintiff could recover he must show that by the law of Scotland the defendant was liable, but the court held" that if the law of Scotland differed from the law of England as to the liability of the defendant, it lay upon the defendant, and not the plaintiff to show it." Woodward v, O'Connor was a suit on an arbitration note, given in Canada, and valid by the common law. The defendant attempted to show that it was invalid by the laws of Canada, but did not offer such laws in proof. The court refused to take judicial notice of the law of Canada in contravention of the common law on the subject which it presumed to be the same in both jurisdictions. In Bean v. Briggs it was said: "If a controversy arises in our courts upon a contract made in another jurisdiction, prima facie it is to be governed by the law of this state, for the reason that as we know nothing in the first instance of the statutes of such foreign jurisdiction, we presume them to be the same as ours, and therefore make ours the rule of decision." This was an action by the endorser of a certificate of deposit made in Illinois and endorsed by defendant. The defendant answered, among other things, that the contract was made in Illinois, and that the plaintiff had not exhausted his remedy against the maker of the certificate. On the trial defendant offered to prove that, by the law of Illinois, the endorser must first exhaust his remedy against the maker before he could resort to an endorser. This evidence was excluded on the objection that the answer did not show that such was the law of Illinois, or that the law of that state differed from the general commercial law. On appeal, this ruling was affirmed. The decision of the appellate court was clearly right, but its language was not very carefully chosen. The same may be said of Sayre v. Wheeler. The note in that case was void at common law. Rape v. Heaten, cited in the principal case, is of doubtful authority upon the question there under consideration. It reverses the decision of Judge Dixon, before whom the case was tried at the circuit, and was concurred in by only two judges. If that case holds that where it appears expressly, or by necessary intendment, that the defendant did not have actual notice of the suit, and the record fails to show an appearance, the judgment will be invalid in another state; it was not necessary or proper to base such decision upon the local laws of Wisconsin in regard to the service of the writ. See Smith v. State, 7 W. & S. 447, per Gibson, C. J., where it was held that under the constitution of the United States, the judgment of other states must be tested by the principles of international law, rather than by local usages or statutes. Even though the service had been valid under the local laws both of Pennsylvania, where the judgment was rendered, and of Wisconsin, where it was sought to be enforced, the judgment had no extra-territorial force, unless it was rendered in accordance with the principles of international law and natural justice, which require that a man shall not be condemned without being actually notified of the proceedings against him, and having an opportunity to be heard. But if, as seems to be the case, the court intended to hold that the record must affirmatively show effectual service of the writ, or an appearance to the suit, the decision is clearly against the weight of authority. Jarvis v. Robinson, 21 Wis. 523; Wheeler v. Reymond, 8 Cowen, 311; Moore v. Starks, I Ohio St 369; Wood v. Walkins, 17 Conn. 306; Butcher v. The Bank, 2 Kansas, 70; McJilton v. Love, 13 Ill. 486; Wilson v. Wilson, 10 Mo. 334; Richards v. Skiff, 8 Ohio St. 586; Thompson v. Emmert, 15 Ill. 115. In Bernard v. Barry, 1 Greene (Iowa), 388, it was held, in an action against the endorser of a promissory note made in Missouri and endorsed in Maryland, that in the absence of proof of a statute to the contrary, in the latter state, the endorser was liable upon demand and notice, without suit against the maker, although the statute of Iowa required suit to be instituted against the maker before recourse could be had on the endorser. Without attempting to review all the adjudged cases bearing on this question, it may safely be asserted that it has never been held, in any well-considered case, that the courts of one state would presume that the local statutes and customs of that state were in force in other states. 44 In his addition to the text of Greenleaf on Evidence, Judge Redfield says: In many cases it has been said that in absence of all proof, the court will presume the foreign law is the same as that of the forum. This rule may be a safe one to act upon within reasonable limits, as for instance as to contracts relating to personal estate, and especially as to commercial matters; and also that where the common law is known to prevail, it is construed the same as where the action is tried. * * * But no such presumption would apply to statute law, or when it would operate to produce a forfeiture, by rendering a contract void." I Greenl. Ev. 2 488a, Redfield's Edition. 6. The fact that the defendant was a resident of Illinois and Wisconsin was not material to the issue. It is true, that being a domestic corporation, it was presumed to know the laws of Wisconsin, but we do not see that that made any difference, so long as it could not legally plead such laws in defence of the garnishment. 7. As a matter of practice, we think the burden of showing that the debt was exempt from garnishment by the laws of Illinois, was upon the plaintiff. When the defendant showed the judgment against it in the garnishee proceedings, and payment to the plaintiff therein, it was prima facie discharged. If he defendant sought to attack the prima facie defence by showing facts tending to invalidate the discharge, he could only do so by proper averments interest has been regularly received, being payable September 14, and proof. He should have set out the Illinois statutes specifically, if he reof each year. Male v. Roberts, 3 Esp. 163; Thompson v. Kitchen, 8 Johns. lied on that. 189, where it was held, in an action on a promissory note made in Jamaica, that a plea of infancy was bad in the absence of proper averments showing that it would have been available in Jamaica. Throop v. Hatch, 3 Abb. Pr. 23; Hempstead v. Reed, 6 Conn. 486; Carey v. The Rail Co., 5 Ia. 357. M. A. L. 3.. Power to Tax to Execute Trust.-Although capable of holding such fund for the purpose designated, a town has not the power of raising money by taxation for the purpose of executing the trust. 4. Case in Judgment.-Where a testator bequeathed a sum of money to a town "on condition that the same be accepted, and invested by said town so as to yield an income of not less than six per centum per annum, which income shall be invested yearly in United Stated flags,' to be used within the said town on all proper occasions," with provision for a forfeiture of the legacy in case the town should omit to fulfil the condition: Held, that the town might properly expend a reasonable portion of the income of the fund in the purchase and erection of flag-staffs, ropes, halliards, and other necessary paraphernalia. Jacob Foss, by his will, gave to the town of Cornish the sum of $1,000, for the purposes and on the conditions in said will expressed, as follows: 25. I give and bequeath to the town of Cornish, N. H., my native place, for the purpose of perpetuating the "United States flag," that the stars and stripes of which may remind the inhabitants of their bounden duty to themselves, and their fellow citizens of the whole United States, to so act in harmony with right and justice that no occasion will occur to disturb our peace and tranquillity in all coming time, the sum of one thousand dollars, on condition that the same be accepted, and invested by the said town so as to yield an income of not less than six per centum per annum, which income shall be invested yearly in United States flags,' to be used within the said town on all proper occasions; and it is my wish that they shall be used often enough, so that not more than two years' purchases shall be on hand at a time. If the said town does not accept of the above named legacy, or should fail to carry out fully the above condition, then I give and bequeath the said sum of one thousand dollars to my late sister Deborah's children, to be divided equally between them, or, if they are deceased, to their legal heirs. The will was duly proved and allowed. The town voted to accept the legacy, and a trustee was appointed to take charge of the fund and see to its application. The executor of said will paid to said trustee the sum of $940, being the amount due after de ducting $60 United States internal revenue tax. This fund was invested immediately by the trustee, at six per cent. interest, which *From advance sheet of 54 N, H. Reports, furnished by the courtesy of the able reporter, John M. Shirley, Esq. On July 1, 1868, said trustee expended, of the income accrued up to that time, $85.59 for flags, including flag-staffs and the necessary ropes and fixtures for operating the same, and the necessary labor pertaining thereto, leaving a balance unexpended at that time of $27.21. In 1869 said trustee expended in the same way $81.35 of the income. In 1870 said trustee expended $28.50 for flag, and $34.37 for pole, ropes, and putting up the same; 1871, for flag, $28.80; 1871, for poles, ropes, and labor, $27.10; 1872, paid for flag, $34.25; 1872, paid for fixtures, putting up, and expense of getting, $15.60;-and which flags have been placed in different parts of the town where likely to do the most good. The amount of interest received up to the commencement of the action was $56.40 per year. The action is indebitatus assumpsit on the general counts, and the plaintiffs are the persons who would be entitled to the fund if forfeited by the town's failure to perform the condition of the will. The questions of law arising on the above case were reserved for the full bench. Flanders, for plaintiffs; Cushing, for the defendants. FOSTER, J.-Municipal corporations may be the objects of public and private bounty. Legacies of personal property, directly to the corporation for benevolent or public purposes, are valid in law in the abscence of disabling or restraining statutes. Dillon Mun. Cor., sec. 436. Towns in this state "may purchase and hold real and personal estate for the public uses of the inhabitants." Gen. Stat. ch. 34, sec. 3. Not only may municipal corporations take and hold property in their own right, by direct gift, conveyance or devise, but snch corporations, at least in this country, are capable, unless specially restrained, of taking property, real and personal, in trust, for purposes not foreign to their institution, and not incompatible with the objects of their organization. And equity will compel such corporations to execute any lawful trusts which may be reposed in them. 2 Kent's Com. *279, *280; Dillon Mun. Corp. sec. 437 and 443, and cases cited in notes; Perry on Trusts, secs. 42, 43; Vidal v. Gir ard's Executors, 2 How. 127; Perin v. Carey, 24 How. 465; Trustees v. Peaslee, 15 N. H. 331; Chapin v. School district, 35 N. H. 445; The Dublin case, 38 N. H. 459. In the Girard will case before cited, Mr. Justice Story remarks: 'If the purpose of the trust be germane to the objects of the in corporation; if they relate to matters which will promote and perfect those objects; if they tend (as the charter of the city of Phil adelphia expresses it), 'to the suppression of vice and immorality, to the advancement of the public health and order, and to the promotion of trade, industry, and happiness,' where is the law to be found which prohibits the corporation from taking the devise upon ist, the corporation itself having a legal capacity to take the estate such trust, in a state where the statutes of mortmain do not exinculcate such a doctrine, or prohibit the execution of such trusts, as well by devise as otherwise? We know of no authorities which even though the act of incorporation may have for its main objects mere civil and municipal government, and regulation and powers. If, for example, the testator by his present will had devised certain estate of the value of $1,000,cco, for the purpose of with good and wholesome water, for the use of its citizens, from applying the income thereof to supplying the city of Philadelphia the river Schuykill, why, although not specifically enumerated among the objects of the charter, would not such a devise, upon mate purposes of the corporation, and the corporation capable of such a trust, have been valid, and within the scope of the legitiexecuting it as trustees?" The learned judge further observes: "Neither is there any positive objection, in point of law, to a corporation taking property upon a trust not strictly within the scope of the direct purposes of the institution, but collateral to them." These remarks indicate the views of that eminent jurist, that the Since the town, though capable of holding the fund for the purpose designated, has not the power of raising money by taxation for the purpose of executing the trust, it can only make the fund available by appropriating a portion of the income to expenses necessarily incidental to the use, and without which the legacy and the trust must fail. scope of the purposes of a municipal organization is exceedingly performance of which the vesting in them of the legacy depends. broad and comprehensive. It is manifest that a municipal or other corporation should not be permitted to take and execute trusts for objects "utterly de hors the purposes of the incorporation;" but we fail to recognize any reason why its capacity in this respect should be limited to objects technically denominated charities or pious uses; or to religious or educational purposes; or, indeed, why it should be circumscribed by any other limitations than such as should exclude inconsistent, incompatible, and improper objects. The testator knowing the law, and intending of course to make a valid bequest, must have also understood and intended (since It would seem to be impossible to prescribe in definite terms the he provided no additional fund for the purpose), that the governalmost innumerable objects of a liberal bounty, with which a town ment tax should be paid out of the fund; and that a portion of its night be advantageously and happily endowed, directly or in income should be appropriated to the furnishing of the indispenstrust. It would probably be agreed by all, that a town in this able appurtenances and paraphernalia, without which the flags state may hold property in trust for educational purposes. And could not be displayed. If the bequest here is a charity, or analwhat are they? Not merely the means of instruction in grammar, ogous thereto,it must receive that liberal construction which courts, or mathematics, or the arts and sciences, but all that series of in- | whether of law or of equity, employ in such cases -Snell's Equity, struction and dicipline which is intended to enlighten the under- 90; and perhaps, if it were necessary, in order to support the tesstanding, correct the temper, purify the heart, elevate the affections, tator's design, the doctrine of cy pres might be put in requisition. and to inculcate generous and patriotic sentiments, and to form At any rate, the will is to have a literal construction, to effectuate the manners and habits of rising generations, and so fit them for the manifest intention of the testator. usefulness in their future stations. With these views, it becomes unnecessary to consider the quesand without the intion whether the plaintiffs in their own names, tervention of the executor, could maintain the action, if any cause of action belonged to them. Upon this question, the remarks of SHAW, C. J., in Lawrence v. Wright, 23 Pick. 128, would seem to be pertinent: "The remedy of any party in such circumstances, is very simple,-that of taking out letters of administration; and the law arms the administrator with ample powers to obtain the property in whose custody soon it must be placed. If the property is not of sufficient value and importance to be the subject of an administration, it may at least be doubtful whether it is worth litigating about in any other form." CASE DISCHARGED. United States Treasury Notes-Rights of Purchaser after Maturity Right to Recover, when Stolen. VERMILYE, ET AL. v. THE ADAMS EXPRESS COM- The purpose declared by the testator, was the perpetuation in his native town of the "United States flag," to "remind the inhabitants of their bounden duty, to themselves and their fellow- Supreme Court of the United States, No. 157, October Term, 1874. citizens of the whole United States, to so act in harmony with right and justice that no occasion will occur to disturb our peace and tranquillity in all coming times." Though not directly within the scope of the more appropriate duties and powers of towns, this bequest and trust certainly is not repugnant to the general object of such corporations, and with slight change of phraseology the language of Perley, C. J., in the Dublin case, may well be applied to the present: "Towns in this state are to be regarded as a co-ordinate branch of the government, established to advance the general good of the people; and under our constitution no one can entertain a doubt that to maintain and cherish love for the union of the states, is an object quite consistent with the general purposes for which towns are created, and that towns have at least, an indirect interest in promoting patriotism within their limits." Our conclusion is, that the town of Cornish possesses legal capacity, to take and hold the testator's bounty in trust for the purposes declared by his will. We are of the opinion that the case discloses a practical and substantial compliance by the town, with the condition, upon the 1. United States Treasury Notes Commercial Paper,-The bonds and treasury notes of the United States, payable to holder or bearer at a definite future time are negotiable commercial paper, and their transferability is subject to the commercial law of other paper of that character. 2. Status of Purchaser after Maturity.-Where such paper is overdue, a purchaser takes, subject to the rights of antecedent holders, to the same extent as in other paper bought after its maturity. 4. Duty of Bankers notified of Loss.-It is their duty when served with notice of the loss of such paper by the rightful owner, after maturity, to make memomanda or lists, or adopt some other reasonable mode of reference, where the notice identifies the paper, to enable them to recall the service of notice. 5. Recovery of Stolen Treasury Notes, Past Due.-Hence treasury notes of the United States, stolen from an express company, and sold for value after due, in the regular course of business, may be revered of the purchaser by the express company, which had succeeded to the right of the original owner. Appeal from the Circuit Court of the United States for the Southern District of New York. Mr. Justice MILLER delivered the opinion of the court. The appellants having presented to the Treasury of the United States, for payment some time after their maturity, eight treasury notes issued under the authority of the act of March 3, 1865, were informed that the Adams Express Company asserted an ownership of the notes, and they could not be paid until the question of the rightful ownership was settled. |