BOCK 'V. PERKINS.
terested remotely, and the husband was held competent on the ground that sbe was not a party. His testimony would not be either for or against her in that suit, although it might affect ber. Both these latter cases arose under the Revised Laws. Both go upon the ground that the husband could testify because the wife was- not a party in interest, and recognize the doctrine that he could not testify if she should be a party in interest. As the law now stands, and as this case stands, it must be beld that the husband is not a competent witness, and is not compellable to testify. Motion denied.
BOCK, Assignee, etc., v. PERKINS, U. S. Marshal, and others.
(Cirouit Court, N. D. Iowa, E. D. May 15,188ft)
ASSIGNMENT FOR BENEFIT OF CREDITORS-DESCRIPTION OF PROPERTY.
A deed of assignment, intended for the benefit of all creditors generally, but which describes the property conveyed as "all the property whatsoever of tbe party of the first part, more particularly described in the annexed scbedule, " is, in legal effect, not a general, but a partial, assignment, and conveys only the property enumerated in the schedule thereto anll6xed. 1
On Motion by Plaintiff for New Trial.
Fouke <t Lyon, for plaintiff. Henderson Hurd fi; Daniels, for defendant.
Before BREWER, LOVE, and
BREWER, J., (orally.) This is an action brought by an assignee to recover a stock of goods seized by the defendant, as United States mar· shal, undec an attachment against the assignor. The property was not named in the schedule to the assignment. The statutes of Iowa provide, substantially, that a general aSRignment shall carryall the property of the assignor; that no schedule shall be necessary, and that any mere imperfection or omission in the schedule shall not vitiate the assignment, or prevent it from carrying the entire property; and it is claimed that the instrument in question was a general assignment; and that, although the specific property in controversy was not named in the schedule, it passed by the terms of the assignment. Of course, a partial assignment conveys only the property described, and the question is whether this was a partial or general assignment. It is headed "General Assignment." It recites that whereas, the assignor is justly indebted in considerable sums of money, and has become unable to pay the same in full, and is now desirous of making a fair and equitable distribution of his property
lSee note at end of case.
among all of his creditors; and then goes on to grant, convey, and assign "all the lands, and all the personal property of every name and nature of the said party of the first part, more particularly enumerated and described in the schedule hereto annexed, marked 'Schedule A,' or intended so to be." Now, the reasons in favor of holding this as a general assignment are-First, the parties call it such; second, the assignor asserts his desire to distribute his property among all his creditors; third, it reads that he conveys all his lands, and all his personal property; and, further, in the affidavit to the schedule he swears that this is a true statement and account of his estate. The argument on the othel hand is that the broad language in the first part of the description is restricted by that which follows. He assigns all the lands, and all the personal property, specifically enumerated and described, and this particular property in controversy is not described or enumerated. Just the same as though a man should convey all his lands in the city of Des Moines,-the broad expression in the first part of the description, "all his lands," would necessarily, by a familiar rule, be limited by the second part of the description, "in tbe city of Des Moines;" so here, all his lands, and all his personal property. as specifically enumerated and described, shows that he intended to convey, not all, but only those enumerated and described. The question is not one free from donbt. Of course, no one questions the general rule that we are to take the description as a whole, or that general terms in one part are limited and qualified by any specific language used thereafter. Especially is that rule applicable in a case like this, where the property not enumerated and described is property of proportionately large value and great amount. He has enumerated on one page of this schedule his lands; on another page or pages certain accounts; but, though being a merchant in possession of a stock of goods, he does not mention that stock ,of goods in any way. Now, for the intent of the party, which is controlling. we are to look at all parts of the instrument. When a party makes that k:nd of a description, to.wit, all the property enumerated in an attached schedule, and we find omitted from that schedule a large element of his property,-something which it could not, in the nature of things, be believed he would accidentally omit,-can we come to any other conclusion than that he intended to omit it, and that he intended to convey only that which he had specifically enumerated? If a man having a herd of cattle and a colt should make an assignment of "all his property, as specified in his schedule," and in the schedule mention simply the colt, would not we be irresistibly forced to the conclusion that his omission of that which was the main element of his property (his herd of cattle) was in pursuance of an intention to omit it? Of course the omission of some minor item would not carry such inference; but when a. man sets out to make an assignment, and
BOCK t1. PERKINS.
takes pains to make a schedule of that which he assigns, and omits that which is the great bulk of his property, and conveys all his property as enumerated and described in the schedule, does not the omission carry with irresistible force the conviction that he did not intend to include in his general assignment that which he had omitted from the schedule? It is, however, urged that this language, "as particularly enumerated," is limited by the further expression, "or intended so to be," and the argument is that he intended. to convey all; that he prepared the schedule supposing it to contain all, and then added the words "intended so to be," so as to guard against omission, and include anything which might happen to be omitted. Certainly, if that language referred to the enumeration, it would have great force as to any minor matters omitted; but even then it would be doubtful whether it should be construed so as to reach any very valuable propertyomit. ted. But the language does not necessarily refer to the enumeration, and, in view of the facts as they appear from the testimony, it probably does not. "Particularly enumerated and described in the schedule hereto annexed, marked' Schedule A,' or intended so to be. Now, does that refer to the enumeration or to the annexation? Ordina.rily a qualifying clause refers back to its nearest antecedent; and when, as appears from the testimony, the assignment was made at one time and place and the schedule at another, it seems to support the grammatical construction, and that when this assignment contains a conveyance of property as enumerated and described in the schedule annexed, or intended so to be, the latter words qualify simply the annexation. I donot, of course, intend to question the fact that the designation on ,the face of the iristrument of "General Assignment," and the declaration of the intent to dispose of his property among all his creditors, make against the construction. Only for those fat}ts, I think there would be but little question, and the presence of those facts obviously throws the question into doubt. But the plaintiff in this case rests upon this instrument, and must rest upon it. He must satIsfy the court that this instrument was intended to convey this property, which it seemed as though the assignor had ex industria omitted from the schedule. The court is not satisfied, nor any member of the court, that such was the intention. If we may look at matters outside the instrument" itself, existing at the time and antElrior thereto, it would seem as though they indicated an intention on his part not to con vey by this assignment all his property. Contemporaneous, or nearly so, with this assignment, he executed a mortgage to one person and a deed to another. So nearly contemporaneous were the three instruments that it is difficult to believe that they were not all intended to be parts and parcels of one transaction. In the assignment he makes no reservation, as he might, of exempt property,-that which any IDltn might be expected
to retain for the benefit of himself and family. This tends to show that he· was, notwithstanding the general language in the first part of his description, intending to convey only that property named in the schedule, and which was in fact not exempt. Whenever a party rests his title upon an instrument susceptible of various constructions, unless, upon an examination of the entire instrument, the court is satisfied that the intent was to convey that which he now says was intended by the instrument, the court must hold against the title asserted. So, upon the face of the instrument alone, and also as helped by the attending circumstances, we all of us come to the conclusion that this property was not included in the assignment. Of course, we concede that there is a doubtful question. The other matter upon which the trial proceeded arose out of the question whether the deed, mortgage, and assignment were part and parcel of one transaction. He gave a deed to his wife, and a mort. gage to his wards for money which he claims to have borrowed from them. On the morning of the 18th he was aware of his insolvency,was pressed by his creditors. The matter of an assignment was spoken of between himself and other parties. On that day he executed, or at least signed and acknowledged, the deed and mortgage. His testimony, uncontradicted, as I believe, is that he delivered the <leed to his wife. The mortgage he kept in his own possession as guardian of his wards. On the 20th this assignment was made. On that day the three instruments were recorded, he himself placing them on record,-placing the deed and mortgage upon record prior to the assignment. He testifies he had received the deed back from his wife. I believe. then, his testimony is that he did not intend to make an assignment-had not made up his mind to make an assignmentuntil the 19th; at any rate, until after he had e.xecuted this deed and mortgage. Now, the instruction give.n was to the effect that where a party becomes conscious of his insolvency,-of his inability to pay all his creditors in full,-and has in contemplation the disposition of his property, and, in pursuance of that purpose, makes to-day a deed, and to-morrowan assignment, they are to be treated as part and parcel of the same transaction, and that, notwithstanding he may not at the time of the deed have determined upon the assignment as the ultimate act. The testimony fully brought that state of affairs before the jury, and before the court: that the man was insolvent; that he was conscious of his insolvency; knew he was unable to pay all his creditors in full, and contemplated some disposition of his entire property. In pursuance of that he deeded to one creditor and mortgaged to another, and within two days executed the assignment. Under these circumstances, it seems to us that they are justly to be treated as part and parcel of the same transaction. A debtor cannot under the laws of Iowa respecting preferences by one instrument and another secure this and that creditor, when all the while
EX PARTE HANSON.
there is before his mir:.d the certainty that he has got to make Bome disposition of his property because of the pressure of his creditors, and. only when he has secured the friendly creditors, then turn over by valid assignment the balance of his property. Hence, upon both of the matters discussed, the judgment must be sustained, and the motion for a new trial overruled. The amount in controversy is in excess of $5,000, and the plaintiff has full remedy by writ of enor. if he desires.
NOTE. In Mirns v. Armstrong, 8,1 Md. 87, an insolvent debtor made an assi"nment, wherein it was recited that the assignor "is indebted to diverse persons." etc.... and is desirous of providing for the payment thereof by assiKllllJent of all his property j" and in the granting clause the property was described as .. all his goods," etc., .. choses in action, and property ofevery name and nature whatever, belonging to him, and which are more prop,erly and fully enumerated in the schedllie hereunto annexed, marked' Schedule A. " The court held that the general words of the deed were limited and controlled by the schedule, and that a sum of money not named in the schedule did not pass to the assignee nnder the deed. Under the statute governing voluntary assignments, when personal property is omitted from the schedule, whether by mistllke or otherwise, and is afterwards surrendered to the trustee, he may, as against executions issued and levied after such surrender. retain and dispose of it for the purpose of the trust. Hasseld v. Seyfort, (Ind.) 6 N. E. Rep. 676.
Oregon. June 24, 1886.)
A charge on a license to sell goods is a tax thereon. 2. TAX ON GOODS, WHEN A REGULATION OJ' COMMERCE. A tax imposed by one state on the sale of the products of another state within its limits, which, in purpose or effect, discriminates against said prod· ucts, and in favor of its own, is a regulation of commerce among the states, and therefore void.l .
LICENSE TO SELL GOODS.
A tax or charge imposed equally on the products of the state imposing it. and those introduced from other states. is not a regulation of commerce, but only an exercise of the taxing power of the state.
An ordinance of the city of Portland requires every person who goes from place to place therein, soliciting the purchase of goods, without reference to the place of their product or manufacture, or offering to sell or deliver the same by sample or otherwise, to take out a license, and pay therefor $25 per quarter. or so much a day for a less time. Held that, on its face, the ordinance did not discriminate against the products of any state, and therefore it was not a regulation of commerce, but only a tax; and its character in this respect is not affected by the fact that in some or many instances the revenue derived from the tax may be paid largely or wholly By the products of other states, because the same are not produced in Portland, or the producer therein, having less need for the services of a drummer, may not employ ona. The circuit and district courts of the United States have authority to dis· charge 8 person by habea8 corPU8 from imprisonm,nt under the authority of
HABEAS CORPUS FOR THE DELIVERANCE OF PERSON HELD UNDER AUTHORITY OF A STATE. .
note' at end of case.
a state contrary to the constitution or a law or treaty of the United but, when such person is in custody only on the charge of an offense against the laws of the state, the court may, in its discretion, refuse to discharge him before trial, or even afterwards, and until the case has been heard in the state court of last resort.
POWER TO REGULATE COMMERCE.
QuaJr6, does the power of congress over commerce include commerce between a state of the Union and a terl'itory thereoU '
Petition for Habeas Oorpus. H. Todd Bingham and Edward W·. Bingham, for petitioner. Zera Snow and Albert H. Tanner, for respondent.
DEADY, J. This is a petition by Emilius W. Hanson for a. writ of .habeas corpus. The amended petition states that the petitionel is unlawfully restrained of his liberty by Samuel B. Parish, the chief of police of the city of Portland; that the petitioner is a resident of Seattle, Washington, and is the salesman of the Northwestern-Cracker Company of that place, which is there engaged in the manufacture ,of breadstuffs, and in the sale of the same there and elsewhQre; that, as the agent of said company, the petitioner, on May 20, 1$86, at Portland, offered to sell breadstuffs, manufactured thereby, upon an agreement that the same were to be manufactured in Seattle, and shipped thence to the purchasers in Portland, whereupon said Parish arrested the petitioner because he did not have a license from Portland "as a drummer and commercial traveler" for selling goods as aforesaid, as required by ordinance 4817, entitled "An ordinance to license, tax, and regulate drummers and commercial travelers," and approved March 4, 1886; that manufacturers or merchants of Portland are not taxed for the privilege of selling goods at their places of business therein, and do not employ persons to go about, from place to place, within said town, offering to sell goods by sam· pIe or otherwise; that said ordinance was designed and intended to discriminate in favor of goods held in Portland for sale, against goods held elsewhere and offered for sale therein, and, by reason of the tax thereby impo!led on the latter, does in fact so discriminate, and is therefore in conflict with ·the constitution of the United States, which gives congress the power to regulate commerce among the states, and void; and the proceeding thereunder against the peti. tioner is therefore without due process of law, and contrary to the fourteenth amendment. Briefly stated, the ordinance in question requires "drummers and commercial travelers" to pay a license of $25 per quarter, or $3 per day for less than six days; or $2 per day for any greater number of days; and, in default thereof, to be punished by a. fine of not less than $10 nor more than $200, or by imprisonment not less than 5 nor more than 90 days. "A drummer or commercial traveler" is defined by the ordinance as follows:
" All persons who shall go about, from place to place, within the corporate limits of the city of Portland, solicIting the pun:lIase of goods. wares, or
merchandise, or offering to sell, barter, or deliver any goods, wares, or merchandise, by sample or otherwise, are hereby defined [declared] to constitute drummers and commercial travelers."
Notice of the application was required to be given to the city attorney, who appeared and contested the right to the writ. A tax or charge for a license to sell goods is, in effect, a tax on the goods themselves. Welton v. Missouri, 91 U. S. 278. It is now well settled that a tax imposed by a state, directly or indirectly, on the products of another state, ·when brought within its limits, or offered for sale therein, which in effect discriminates against said products, and in favor of those of the state imposing the tax, is a regulation in restraint of commerce among the states, and as such is a usurpation of the power conferred on congress by the constitution of the United States. Ward v. Maryland, 12 Wall. 418; Welton v. Missouri, 91 U. S. 275; Guy v. Baltimore, 100 U. S. 434; Walling v. Michigan, 116 U. S. 446; S. C.6 Sup. Ct. Rep. 454. On the other hand, where the tax or charge is imposed equally on the products of the state imposing it and those introduced from other states, the law or ordinance imposing the same is not a regulation of com· merce, but only a legitimate exercise of the taxing power of the state. Woodruff v. Parham, 8 Wall. 123; Hinson v. Lott, ld. 148; In re Rudolph, 6 Sawy. 295; S. C. 2 Fed. Rep. 65; Ex parte Robinson, 12 Nev. 263. On its face this ordinance makes no discrimination b'etween the products of this state and any other state or country. "All persons" who engage in the business of going about from place to place within the city soliciting the purchase of goods, without any reference to the place of their production or manufacture, are required to take out the licen8e and pay the tax. The agent of the cracker company of Portland and the cracker company of Seattle are each included in the terms of the ordinance, and alike punishable for its violation. But admitting this, counsel for the petitioner insist that this ordinance does in fact discriminate against the Seattle cracker company, because the Portland cracker company, having a place of business in the city, does not have the same need for an agent to go from house to house and take orders for goods, and therefore is not likely to employ one, and may thus escape the payment of the tax. A court will look behind or beyond the mere words of a statute, however chosen or arranged, to see if, in its actual operation, it must necessarily result in discrimination. But this ordinance is not obnoxious to the charge of discrimination in its operation because, under the circumstances, the Seattle company is more likely to employ a drummer than the Portland one. Indeed, this very argument seems to have been considered by the supreme court in the analogous case of Hinson v. Lott, supra. In that case a statute of Alabama imposing a tax on dealers in spirituous liquors of 50 cents a gallon on each gallon offered for sale within the state, and brought there from without it, v.28F.no.2-9
_ _ _
was held valid, because the same statute also provided that a tax of 50 cents a gallon should be paid by the Alabama distiller on each gallon of whisky and brandy manufactured in the state from fruit. The tax on the distiller was considered the equivalent of that imposed on the dealer, so that there was no discrimination against the latter, neither in purpose nor effect. The terms "whisky" and "brandy" were considered the equivalent of "spirituous liquors," and it was assumed that they were not Ulanufactured in Alabama from any article but "fruit." Mr. Justice NEI,SON dissented from the opinion of the court in this and the preceding case of Woodruff v. Parham, supra, and, in the course of his opinion, sought to maintain that the Alabama statute, however well intended or phrased, did, by reason of the peculiar circumstances of the case, operate unequally, and result in a discrimination against the spirituous liquors not produced in the state. By way of illustration, he said, (8 Wall. 146:)
"Alabama is a cotton-growing state, and depends upon the northern states bordering on the Mississippi and the Ohio for most of her corn, wheat, and flonr. She cannot, therefore, be a state largely engaged in the manufacture of whisky. The tax, so far as regards her own people, is pl"obably nearly nominal."
But the doctrine of the cases appears to be that so long as the prod. uct or business of the state imposing the tax is made to pay its just proportion of the same, the act providing therefor is not obnoxious to the charge of discrimination, although the gross revenue derived by the state from the tax may be largely collected from the product or business of other states. As I read the case, the mere accidental circumstance that Alabama consumed more whisky than she produced, and therefore her whisky tax was, for the greater part, collected from the northern product, did not invalidate the tax, provided the Alabama product, whether much or little, paid at the same rate as the other. The power of this court to issue the writ of habeas corpus when any is restrained of his liberty in violation of the constitution of the United States, is given by congress in unqualified language. Rev. St. §§ 751-755. And anyone imprisoned or in custody by authority of a state, under a void or unconstitutional act thereof, is restrained of his liberty in violation of the fourteenth amendment, which forhids any state to "deprive any person of life, liberty, or property without due process of law." In re Lee Tong, 9 Sawy. 335; S. C. 18 Fed. Rep. 253; In re Wan Yin, 10 Sawy. 538; S. C. 22 Fed. Rep. 705. :As was said by Mr. Justice BRADLEY in Ex parte Siebold, 100 U. S. 376: "An unconstitutional law is void, and is as no law. An offense created by it is not a crime. A conviction under it is not merely erroneous, but it is illegal and void, and cannot be a legal cause of imprisonment." In Ex parte Royall, 6 Sup. Ct. Rep. 734, this subject has lately been considered by the supreme court. This conclusion is reached: .That while the circuit and district courts have full au.thority to issue the writof habeas corpus in all caSElS where a party is
restrained of his liberty "in violation of the constitution, or a. law or treaty of the United States," by the authority of a state, either before or after trial thereby, and "dispose" of him "as law and justice require," still the court has a discretion in the premises, which should be exercised so as not to disturb the relations between the courts of the Union and the state "by unnecessary conflict between courts equally bound to guard and protect rights secured by the constitution;" and that "where a person is in custody under process from a state court of original jurisdiction only, for an alleged offense against the laws of such state, and it is claimed that he is restrained of his liberty in violation of the constitution of the United States," the court has discretion whether it will discharge him on habeas corpus before trial, or even afterwards, and before the case is finally heard in the state court of the last resort; subject, however, "to any special circumstances requiring immediate action." On the authority of this case this court might, and probably ought, even if it thought the ordinance invalid, to refuse the writ for the present, and leave the party to his trial in the state court. No special circumstance is shown calling for the immediate intervention of this court. There is also a question whether the clause in the constitution (article 1, § 8) giving congress power "to regUlate commerce · · · among the several states," includes the commerce between a state and territory of the United States. The latter is a state-a collection of persons occupying a certain territory, with a legislative and executive organization-in the large and general sense of the word. In re Bryant, 1 Deady, 118; The Ullock, 9 Sawy. 634; S. C. 19 Fed. Rep. 207; The Abercorn, 26 Fed. Rep. 877. But a. territory is n01 a member of the Union fO.J:med by the constitution, and "the several states" referred to therein among whom congress may regulate com merce are only thOse embraced in such Union. Congress has power to regulate commerce in the territories by virtue of its general powe1 over them. But it has no power over the internal commerce of a state, and its power over the external commerce thereof is apparently qualified by the condition that it is with a foreign state, a state. of the Union. or an Indian tribe of the United States, in which catn egory the territory of Washington is not included. With this sug. gestion of the question, I leave it. The writ is denied, and the petition dismissed on the ground of the validity of the ordinance.
NOTE. In the case of Speer v. Com., 23 Grat. 936, a state statute required a license to be ob· tained by every person selling goods by sample who was not a "resident merchant," and the court held that as a man may be a resident citizen and not a resident merchant, and the reverse, there was no discrimination in favor of citizens of the state; that, therefore, the statute was not unconstitutional, and that such statute was not a regulatioD of commerce between the states. A state statute, imposing a tax upon traveling agents and merchants, who go about soliciting orders for goods, wares, and merchandise, does not impose any impost or duty upon imports, does not interfere with the federal power to regulate interstate commerce, and is not unconstitutional. Ex parte Robinson, 12 Nev. 263.
A municipal ordinance exacting a license fee from dealers or peddlers not residing In, or who sell goods not manufactured in, the county, is unconstitutional. City of Marshalltown v. Blum, 58 Iowa, 184; S. C. 12 N. W. Rep. 266. It is the settled doctrine of the United States supreme court at this day that a state can no more regulate or im pede commerce among the several states than it can regulate or impede commerce with foreign nations; but thE" imposition of a general tax on goods from another state, arriving in the taxing state as their place of destination. is not a regulation of commerce with the objectionable effect. Brown v. Houston, 5 Sup. Ct. Rep. 1091. A state cannot regulate foreign commerce, but it may do many things which Illore or less affect it. It may tax the vehicles of commerce the same as other property owned by its citizens. Wiggins Ferry Co. v. East St. Louis, 2 Sup. Ct. Rep. 257. Under article 1, 8, of the constitution of the United States, the power of congress to regulate commerce among the states,-interstate commerce,-which consists, among other things, in the transportation of goods from one state to another, is exclusive. Hardy v. Atchison, T. & S. F. R. Co.· (Kan.) 5 Pac. Rep. 6. A legislative enactment regulating freight tariffs upon goods transported through the state to points without it is an infringement of the power of congress to regulate commerce between the states. Carton v.Illinois Cent. R. Co., (Iowa,) 13 N. W. Rep. 67.
SAME V. TUCXER
(Oitrcuit Oourt, S. D. New York. July 16, 1886.)
PATENTS FOR INVENTIONS-MACHINES FOR CUTTING OFF CAPSULES.
The first claim of reissued letters patent No. 10,437, of January 15, 1884, to Frederick A. HUbel, for a machine for cutting off gelatine capsules, is not infringed by a machine built under letters patent No. 305,867, of September 30, 1884, to William A. Tucker. Sub combinations, apparent on the face of, but not claimed in, an original patent, by inadvertence or mistake. can be introduced in a reissue if season able application is made therefor; but if application is postponed an unreasonable time, they become abandoned to the public, especially if the equitable rights of other parties have intervened.
SAME-ENLARGEMENT BY ADDING EI,EMENT.
Where, after an unreasonable delay, (five years,) a second reissue is applied for. in which another element is added to a combination described in a void claim in the first reissue, such added element making a different, and previously unclaimed, invention, the second reissue is an unwarranted enlargement, and is void. As between two independent inventors, each claiming priority of invention, the question of reasonable diligence is of prime importance, and if the first inventor postpones for an unreasonable period the practical embodiment of his mental conceptions, and his application for a patent, the consequences of his laches may be fatal.
SAME-PRIORITY OF INVENTION-DILIGENCE.
SAME-,-LACHES IN APPLYING FOR PATENT.
That laches in applying for a patent, when there were no laches in otherwise perfecting the invention, may compel an inventor to be deprived of his patent, another inventor haVing meanwhile given the same invention to the public, is probably true. When an inventor of a machine of an important character, who has been diligent in perfecting and reducing his invention to practice, and in by Charles C. Linthicum, Esq., of the Chicago bar.