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Vol. II.]

FITCH v. AM. POPULAR AM. LIFE INS. Co.

[No. 11.

ber and character of the inquiries made of the insured, if the answers were all held to be warranties it would in substance be optional with the company whether to pay or not, for it would be a marvel if some flaw could not be found in the application. No intelligent person would knowingly invest his earnings in so precarious a security.

Another alleged ground of nonsuit was the response of the applicant to the question: "Family physician, and each one who has ever given the party medical attendance? if neither exists, name some medical man, an acquaintance, who knows the party well." The answer was, "Have

none.'

This answer was upon its face incomplete. It applies only to the call for the name of the family physician. Whether the suppression of the name of Dr. Benson, who had attended the applicant for inflammation of the eyes in November, 1864, and again in 1867, for some other complaint not mentioned, and of the doctor who was called in to visit his boy in 1870, and attended him twice at Troy, were fraudulent suppressions, were questions for the jury. If the defendant had desired a fuller answer to the question it should have insisted upon it at the time.

The same remarks apply to the statements of the applicant as to his vocation, his residence, and to the question whether he had been medically examined for the army or navy, or with reference to insurance; and to his omission to mention the fact of his discharge from the army. There was no such conclusive evidence of fraud or intentional misrepresentation as required the court to pass upon the fact. The refusals to charge as requested are covered by the remarks already made, and this disposes of all the material exceptions, except the rejection of evidence that Fitch, the deceased, committed suicide.

The policy contained no stipulation that it should be void in case of the death of the insured by suicide. It was not taken out for the benefit of Fitch, but of his wife and children. Although they were bound by his representations, and any fraud he may have committed in taking out the policy, the policy having been obtained through his agency, yet they were not bound by any acts or declarations done or made by him after the issue of the policy, unless such acts were in violation of some condition of the policy. We have examined the various grounds upon which the defendant claims that this evidence was admissible, but are of opinion that they are not sufficient.

The order of the general term should be reversed, and the judgment entered upon the verdict affirmed with costs.

All concur, except CHURCH, Ch. J., and FOLGER J., not voting.

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A United States court has power, under sec. 915, Revised Statutes, to issue process of foreign attachment against the property of non-residents, according to state laws.

THIS was an action of debt, commenced by the plaintiff in error, in June, 1873, by process of foreign attachment, in the district court of the United States for the Eastern District of Pennsylvania.

The attachment was served on July 1, 1873, upon property of the defendant in error, in the hands of garnishees, as indorsed upon the writ; and on the 23d day of July following the plaintiff filed his declaration, setting forth that on the 18th day of October, A. D. 1869, a limited partnership was formed under the provisions of the acts of Assembly of the Commonwealth of Pennsylvania in such case made and provided, between the said defendant, as special partner, and Charles Vezin, as general partner, for the transaction of the business of the importation and sale of gloves, under the firm name of Charles Vezin & Co., for a term to commence on the 18th day of October, A. D. 1869, and to terminate on the 18th day of October, A. D. 1872, the amount of the capital contributed by the said special partner being $50,000 in cash. That afterwards, at various specified times, and while the said limited partnership continued and was in existence, portions of said capital, so contributed by said special partner to the common stock of said firm, were withdrawn by and paid to the said defendant, as and in the name of interest on the said capital, amounting together to the sum of $5,782%. That by such payment of interest to the said special partner, the defendant in this action, the original capital has been reduced by an amount of $5,782,7%. That afterwards, to wit, on the 29th day of November, A. D. 1871, the said Charles Vezin, trading as Charles Vezin & Co., was, on creditors' petitions filed in the said court, duly adjudicated a bankrupt; and this plaintiff was afterwards, to wit, on the 22d day of January, A. D. 1872, duly appointed assignee, and an assignment, by instrument of writing, under the hand of Edwin T. Chase, Esq., one of the registers in bankruptcy of said court, bearing date January 22d, A. D. 1872 (here shown to the court), assigning and conveying to this plaintiff all the estate, real and personal, of the said Charles Vezin, bankrupt, with all his deeds, books, and papers relating thereto, was duly made and delivered to this plaintiff. By means and reason whereof an action has accrued to this plaintiff, to demand, and have of and from the said defendant, the sum of $5,782% above demanded.

The defendant failing to appear, a motion was made, at the third term of the court ensuing the execution of the writ, for judgment for such default, which was refused; the court, Cadwallader, J., saying, "that if the

Vol. II.]

GUILLON v. FONTAIN.

[No. 11.

jurisdiction which the first section of the act of Congress of the 2d of March, A. D. 1867, to establish a uniform system of bankruptcy throughout the United States, confers upon this court, of suits for collection of assets of the bankrupt, enables the assignee in bankruptcy to proceed as plaintiff in such a suit by way of foreign attachment in any case, the demand of the present plaintiff, as appears from his declaration, is not such as to sustain a proceeding by foreign attachment.

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The case was then removed to the circuit court upon a writ of error; the assignment of error being the refusal of the court below to grant judgment against the defendant for default of an appearance.

MCKENNON, J. As far back as 1809, at least, it was the practice in the federal courts, in this district, to issue writs of foreign attachment according to the laws of the State of Pennsylvania. Fisher v. Consequa, 2 Wash. C. C. R. 382; and Toland v. Sprague, 12 Pet. 300, are proofs of the existence of this practice. In some, only, of the United States circuits did this practice prevail, while in others its legality was denied. But in Toland v. Sprague a majority of the supreme court held, that, in the courts of the United States, the right to attach property to compel the appearance of persons can be properly used only in cases in which such persons are amenable to the process of the court, in personam. The question was certainly presented in the case, and although it was not necessary to the judgment to decide it, as was held by the four dissenting judges, yet the case must be considered as deciding that the federal courts, under the law as it then stood, had no authority to proceed by foreign attachment, as it was regulated by the laws of Pennsylvania.

But, doubtless, in view of this decision, the act of Congress of June 6, 1872, greatly enlarges the authority of the federal courts in the employment of remedies. By the sixth section of that act, Rev. Stat. sec. 915, it is enacted that "in common law causes in the circuit and district courts the plaintiff shall be entitled to similar remedies, by attachment or other process against the property of the defendant, which are now provided by the laws of the state in which such court is held for the courts thereof.”

The federal courts in this state are thus invested with undoubted authority to proceed against non-resident persons by attachment of their property, as may be done by the laws of the state.

Was the plaintiff, then, entitled to an allowance of his motion for judgment against the defendant for default of appearance? It was denied by the court below, for the reason that the cause of action, as appears from the declaration, would not support a proceeding by foreign attachment.

The action is debt, and the declaration avers that a limited partnership was formed between Charles Vezin and the defendant, to the capital of which the defendant contributed $50,000 as a special partner; that during the continuance of the term, at certain times stated, the defendant withdrew from the capital contributed by him specific sums of money, as and in the name of interest on the said capital, whereby the original capital was reduced by the amount so received by him; and the demand is to recover from the defendant these several sums as received by him in violation of law.

The suit is brought to enforce a statutory liability claimed to be imposed upon the special partner, under the circumstances stated in the

Vol. II.]

KIMBALL V. MILFORD.

[No. 11.

declaration. By the statute (Brightly's Purdon, 937) it is enacted" that if it shall appear that by the payment of interest or profits to any special partner the original capital has been reduced, the partner receiving the same shall be bound to restore the amount necessary to make good his share of capital with interest." The liability to restore is complete, if the payments to a special partner reduces the capital, and he may be compelled to repay the deficiency in his share of the capital thus caused by an appropriate action.

Is a foreign attachment then an allowable method in Pennsylvania of commencing such action?

Any demand arising ex contractu which is susceptible of ascertainment by a definite standard may be the foundation of a foreign attachment. In Strock v. Little, 9 Wr. 418, Mr Justice Woodward, says: "Under our statutes, which being remedial, are to be liberally construed, foreign attachments may issue in all actions sounding in contract, where the plaintiff can swear to the amount claimed, or the court, upon a rule to show cause of action, can get at the sum in controversy with sufficient accuracy to fix the amount of bail which the defendant is to give to dissolve the attachment." This is the settled construction of the Pennsylvania statutes, and the demand in this case is fully within it. It is a determinate and certain sum, received under circumstances stated in the declaration, which imposed upon the defendant a statutory obligation to repay it, and for the recovery of which an action ex contractu is the appropriate remedy. The motion of the plaintiff in error for judgment for default of appearance by the defendant ought, therefore, to have been granted, and the cause is remanded to the district court, with directions to allow said motion and to enter judgment accordingly.

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If a railroad corporation, situated in another state, pays a specific tax upon all its capital invested or expended, whether represented by capital stock or indebtedness of the 'corporation, and such taxation is declared to be in lieu of all state, county, township, or other taxes in that state, and it appears that such specific tax was intended to be a fair equivalent for the taxes that would otherwise be laid on such property by the ordinary means of taxation, such property should not again be taxed in this state to the owners of shares of the capital stock of such corporation.

PETITION for abatement of tax, by John Kimball, against the town of Milford. The petitioner resided in said town April 1, 1873, and owned ten shares of the capital stock of the Michigan Central Railroad, a corporation created by the laws of Michigan, and with its railroad wholly located in that state. The selectmen of Milford assessed a tax of $15.50

Vol. II.]

KIMBALL V. MILFORD.

[No. 11.

on said shares against the petitioner as of that day. The petitioner offers to prove that he in all respects complied with the laws in respect to giving in his invoice of taxable property for that year, duly applied to said selectmen to abate, said tax on the ground that the shares were not liable to taxation here, and informed them that they were subject to taxation, and were taxed for that year, in Michigan, under the laws of that state. The selectmen refused to make the abatement, and therefore this petition was filed. A tax was assessed upon said shares against the corporation for said year, and paid, in conformity with the provisions of the charter of said corporation, approved March 28, 1846, and of the Compiled Laws of Michigan, vol. 1, ch. 22, being ch. 21 of the Revised Statutes of Michigan of 1846, and no tax in any other form was assessed on the shares in that state. Either party may refer to the provisions of the charter, and of the Constitution and laws of Michigan bearing upon the question arising upon said petition. The petition is to be dismissed, or the tax abated, or other order made, according to the opinion of the court upon the foregoing facts. Case reserved.

G. Y. Sawyer & Sawyer, Jr., for the petitioner. The Michigan Central Railroad was incorporated by act of the legislature of that state, approved March 28, 1846; and sec. 33 of its charter declares that the corporation, "after February 1, 1851, shall pay to the state an annual tax of three fourths of one per cent. upon its capital stock paid in, including the two millions of purchase money paid to the state, and also upon all loans made to said company for the purpose of constructing its road, or purchasing, constructing, chartering, or hiring steamboats, and the property and effects of said company, whether real, personal, or mixed, shall, in consideration thereof, be exempt from all and any tax, charge, or exaction, by virtue of any law of this state, now or hereafter to be in force, except penalties by this act imposed." In sec. 39 the right is reserved to the state to alter, amend, or repeal the charter, at any time after thirty years from its passage, by a vote of two thirds of each branch of the legislature.

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This mode of taxing railroad property by specific tax on the capital paid in, whether represented by the shares or the debts of the corporation, was adopted in Michigan, by Act of 1855, Comp. Stats. of Michigan of 1872, ch. 75, p. 744, for all railroad and certain other corporations with a similar exemption from other taxation. The Constitution of Michigan recognizes and authorizes the distinction in taxation between the general mass of property to be subjected to a uniform rate of assessment and a specific tax, in lieu of all other, upon the property of banking, railroad, plank-road, and other corporations. Thus, art. 14, sec. 1, prescribes the way in which specific taxes shall be applied; sec. 10 authorizes the collection of specific taxes accruing under existing laws, and empowers the legislature to make provision for the collection of specific taxes from railroad and other corporations created after the adoption of the Constitution; and sec. 11 declares that the legislature shall provide a uniform rate of taxation "except on property paying specific taxes." And the legislature have provided such uniform rate (Comp. Stats. title 8, p. 359), by enacting, ch. 21, sec. 1, that all property, real and personal, not expressly exempted, shall be subject to taxation; sec. 14, that inventories

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