« ForrigeFortsett »
common law it follows the person of the owner, , until after credit has been given to the debtor, it may be given a fixed habitation by statute. is sufficient to authorize the granting of a warThis does not result in any discrimination be- rant of attachment under such provisions.” 1 ween resident and nonresident bondholders, for succession to the bonds of either is taxed Mr. Stillman F. Kneeland, with Mr. in the same way. I think that whatever the Charles P. Norton, for appellants: state government can reach and lay its hands Statutes relating to attachments are entitled on-as, beyond question, it can on a debt to a liberal construction. through the process of attachment_has a prac- The object of the act of 1894 was to provide tical existence here, and is subject to the con for all creditors present security from a debtor trol of our legislature for the purpose of taxa- who has been proved dishonest in his commertion. While I concur in the result reached by cial transactions. the court that the stocks in question are tax- In this state the plaintiff in attachment is able, I am constrained to dissent from its con- never required to go beyond the terms of the clusion that the bonds are not taxable. The statute. order of the appellate division should be re- Treaduell v. Lawlor, 15 How. Pr. 8; Camversed, and that of the surrogate affirmed, man v. Tompkins, 12 Barb. 265. with costs.
The language of the act of 1894 being plain
and unambiguous the courts must ascertain by O'Brien, J., concurs.
its terms the intention of the lawgivers. They have no power to add to its terms or change its tenor.
Cooley, Const. Lim. 55; People, Bockes, William V. PENOYAR et al., Appts.,
Wemple, 115 N. Y. 302; Newell v. People,
9 Wheat. 188, 6 L. ed. 68; People v. Purdy, 2 William E. KELSEY et al., Respts. Hill, 31.
Mr. J. B. Tuttle also for appellants. (150 N. Y. 77.)
Mr. Norman D. Fish, for respondents: 1. A statute authorizing the granting the common law, and is strictly a creature of
The remedy of attachment was unknown to of a warrant of attachment against one statute, and as such involves the involuntary who makes a false 'statement in writing to obtain credit will be strictly construed in favor of dispossession of the owner, and antagonizes
the those against whom it may be employed, as it is common-law idea of property right. in derogation of the common law.
1 Am. & Eng. Enc. Law, p. 894; Kneeland, 2. The making of a false written state- Attachm. $ 3: Rowles v. Hoare, 61 Barb. 271:
Re Denny, 2 Hill, 220. ment as to financial ability, for the pur
Statutes are to be construed with reference pose of obtaining credit, does not make one lia. ble to an attachment in favor of a creditor who to the principles of the common law, for it is had no knowledge of such statement until after not to be presumed that the legislature inthe credit was given, under Laws 1894, chap. 736, tended to make any innovations upon the com. $ 1, authorizing the granting of an attachment mon law further ihan the case absolutely rewhere defendant, for the purpose of procuring quired. credit, makes a false statement in writing as to bis 1 Kent, Com. 464; Beatles v. Nana, 92 N. financial responsibility.
Y. 157, 44 Am. Rep. 361; Potter's Dwarr.
Stat. 185; Linderman v. Farquharson, 101 N. (October 6, 1896.)
Y. 434; Fitzgerald v. Quann, 109 N. Y. 445;
Smith, Const. & Stat. Constr. $$ 701-703; an order of the Appellate Division of the Supreme Court, Fourth Department, affirm- be given to the intent of the legislature when
In the construction of statutes effect must ing an order of a Special Term for Niagara ever it can be discerned, though such conCounty vacating an order of attachment. struction seem contrary to the letter of the statAffirmed.
ute. The appellate division certified for the consideration of the court of appeals the following Holy Trinity v. United States, 143 U. S. 457,
Smith v. People, 47 N. Y. 336; Church of question:
36 L. ed. 227; 1 Kent, Com. 368; People v. **It is hereby certified that a question has arisen under $ 836 of the Code of Civil Pro. Utica Ins. Co. 15 Johns. 380, 8 Am. Dec. 243;
Hayden v. Pierce, 144 N. Y. 516; Vail v. cedure, which provides that an attachment Broadway R. Co. 147 N. Y. 377, 30 L. R. A. may issue, viz., where, for the purpose of pro- 626; Cereland Fire Alarm Teleg. Co. v. Metcuring credit, or the extension of credit, the ropolitan Fire Comrx. 55 Barb. 292. defendant bas made a false statement in writ
That which is within the mapifest intention ing, under his own hand or signature, or un-l of the lawmakers is to be deemed within the der the band and signature of a duly author: law as much as that which is within its letter. ized agent, made with his knowledge and
Stowel v. Lord Zouch, 1 Plowd. 366; Riggs acquiescence, as to his financial responsibility
v. Palmer, 115 N. Y. 506, 5 L. R. A. 340. or standing, whether an alleged false statement in writing by a debtor, which does not the statute in question, to give a summary
The legislature never intended, in enacting come to the knowledge or notice of a creditor remedy by attachment to persons who had in
NOTE.-On the question what fraud will sustain no wise been injured by the false representaa judgment, see note. to Weare Commission Co. v. tions specified in the staiute. And the failure Druley (111.) 30 L. R. A. 465.
of the plaintiffs to show injury to themselves
by reason of the representations complained of Civil Procedure. Code, Proc. $ 227; Code Civ. is fatal to their attachment.
Proc. $ 635. Unlike the attachment against · Haber v. Nassitts, 12 Fla. 610; Lowenstein absent or absconding debtors under the Rev. Bev, 68 Miss. 265; Montague v. Gaddis, 37 vised Statutes or the Stilwell act, which seMiss. 453; White v. Wilson, 10 III. 21; Ridg. questered the property of the debtor for the way v. Smith, 17 Ill. 33; Stewart v. Cole, 46 benefit of all the creditors alike, this proceedAla. 648; Pickard v. Samuels, 64 Miss. 822; | ing is for the benefit of the attaching creditor Drake. Attachm. $ 68; Warder v. Thrilkeld, alone. It is not only created by statute, but 52 Iowa, 134; Lyons v. Mason, 4 Coldw. 525; has substantially none of the features peculiar Russell v. Wilson, 18 La. 367.
to the common-law remedy. As said by a re
cent writer: "It amounts to the involuntary Vann, J., delivered the opinion of the disposession of the owner, prior to any adjudicacourt;
tion to determine the rights of the parties. It The question certified to us for determination violates every principle of proprietary rights depends upon the construction of $ 636 of the held sacred by the common law. It is, to Code of Civil Procedure, which prescribes some extent, equivalent to execution in ad"what must be shown to procure" a warrant vance of trial and judgment. Property is of attachment against property. The learned taken, under legal process, at the instance of counsel for the respective parties differ as to one without even a claim of title, from the the rule of construction that should be applied; possession of another whose title is unquesthe one contending that it should be strict, be- tioned. And, though the mere taking does not cause the provision is in derogation of the work any change in the ownership of the propcommon law, while the other insists that it erty, it seriously affects some of the most imshould be liberal, because the statute does not portant incidents of that ownership, and may derogate from the common law, but merely even be the means of thwarting the owner in amplifies a well-known common-law remedy. his endeavors to meet the just demands against The process of attachment, as it existed under bim.” Wade, Attachm. $ 2. the common law, differed in its nature and ob- Owing to the statutory origin and harsh naject from the provisional remedy now known ture of ihis remedy, the section in question by that name. Its original purpose was to should be construed, in accordance with the acquire jurisdiction of the defendant by general rule applicable to statutes in derogacompelling him to appear in court through tion of the common law, strictly in favor of the seizure of his property, wbich he for- those against whom it may be employed. Ibid.; feited if he did not appear or furnish sure Sharpe v. Speir, 4 Hill, 76, 86; Waples, Attachm. ties for his appearance. 3 Bl. Com. 280; 1 $ 23. Nonresidence, departure from the state, Rolle, Abr. Custoins of London, K. 13; Knee or concealment therein, with intent to defraud land, Attachm. $ 6; Drake, Attachm. $ 5; or to avoid the service of process, were at Ashley, Attachm. 11; Locke, Foreign At first the only grounds upon which an attachtachm. 12. It was part of the service of ment might issue. Code Proc. 1849, $ 229. process in a civil action through a species of dis. Afterwards the statute was so extended as to tress, in which the goods attached were the an. provide that, in addition to the foregoing cient vadii or pledges. Bond v. Ward, 7 Mass. grounds, if the defendant "has removed, or is 123, 128: Gilbert, Law Distress, 24. As said about to remove, property from the state, with in the case last cited: "The practice of attach intent to defraud his creditors," or if he has ing the effects of a defendant, and holding assigned, disposed of, or secreted, or is about them to satisfy a judgment, which the plain to assign, dispose of, or secrete, property, with tiff may recover, when, perhaps, judgment the like intent," a warrant might be issued. may be for the defendant, is unknown to the Code Civ. Proc. 1891, $ 636. The section concommon law, and is founded on our statute tinued in this form until 1894, wben the clause law.” Its present purpose is not to compel ap- now in question was added in these words: "Or pearance by the debtor, but to secure the debt where, for the purpose of procuring credit, or or claim of the creditor. It is a proceeding in the extension of credit, the defendant has made rem, and the process may issue, in certain cases, a false statement in writing, under bis own whether the defendant has been served with a hand or signature, or under the hand or sig. summons or not, although inability to serve, nature of a duly authorized agent, made with through the fault of the defendant, is a his knowledge and acquiescence, as to his ground upon which the warrant may be financial responsibility or standing.” Laws granted. It exists as a provisional remedy 1894, chap. 736, § 1. It will be observed that only when authorized by statute, and, as such, prior to this amendment the grounds upon is comparatively recent in its origin. While which attachments might be issued were not attachments were permitted in justices' courts personal to any creditor, but affected all alike. by the Revised Statutes, and were extended They were of two classes: (1) Those relating somewhat by the popimprisonment act, they to the person of the defendant, such as nopreswere proceedings in the nature of original idence, departure from the state, or concealprocess, by wbich the action was commenced. ment therein; (2) those relating to his property 2 Rev. Stat. p. 274; Laws 1831, chap. 300; Brad- and his fraudulent conduct in connection there. mer, Attachm. 2. See also 1 Webster & S. with. None of them related to the creation of 236; 2 Rev. Laws 1813, p. 157. Attachment the debt, and, with a single exception, all were as a provisional remedy, with the object of se- founded upon acts done with a furtive intent, curing a debt by preliminary levy upon prop- which injured ove creditor the same as an. erty to conserve it for eventual execution, was other, either by preventing the service of proccreated by the Code of Procedure, and has ess, or depleting assets in which all were interbeen continued and extended by the Code of lested. The exception, nonresidence, while not.
wrongful, related to jurisdiction, and applied | agency, and it rests quietly upon the books · to all creditors with the same force. As all of without coming to the knowledge of anyone the grounds were general and impersonal, af. who relies upon it, no reparation is needed, befecting all of the creditors in the same way, of cause no mischief has resulted. No right has course any creditor could take advantage of been violated, no wrong suffered, and no damany ground that existed. By the amendment ages sustained. Although the statute is silent of 1894, however, a new element was intro- upon the subject, we think that the strict rule duced, which the defendants claim is personal of construction that we have adopted requires to the creditor giving or extending the credit, us to hold that the false statement must be sucbut which the plaintiffs claim is general in its cessful in procuring credit from someone in or. effect, and designed to provide immediate se der to authorize an attachment. But suppose curity for all creditors whenever the debtor is the specified fraud has been successfully pracproved to bave been guilty of making written ticed upon one creditor, does that allow another misrepresentations as to bis financial standing to take advantage of it, although it had not for the purpose of procuring credit. If the income to his notice when he gave or extended tention was to extend the remedy only to a credit to the debtor? We think not, for the creditor injured by the fraud, the statute is not reasons already given, but mainly because he a radical departure in legislation, for the prac was not injured. He was neither deceived nor tice of fraud, provided it results in lawful dam- defrauded by a statement of which he had not ages, is an authorized ground for an order of heard when his debt was contracted. He gave arrest. If, however, the plaintiff's contention no credit on the strength of a representation is correct, an unprecedented rule has been made at some other time to some other person. made, which may destroy the credit system, We think that the remedy, so far as it is based and bring confusion to the transaction of busi- upon the clause under consideration, is conness. While the statute prescribes the purpose fined to the creditor defrauded, and that no of the false statement, it does not, in terms, one can resort to it except those who gave an prescribe the effect, por require that the state extended credit to the debtor, relying upon his ment should result in procuring credit; yet it statement as true. The inconvenience and in. would be unreasonable to hold that the legis justice resulting from any other construction lature intended that a statement wbich, al. are so manifest as to bear strongly upon the though false and made with evil motives, was intention of the legislature, for a statute absolutely harmless, should be followed by should be so construed, when the language will such grave consequences. It would be an an- permit, as to make it practicable, just, and reaomaly in commercial law to permit a wrong. sonably convenient. Rosenplaenter v. Roessle, ful act that injured no one to disrupt a man's 54 N. Y. 262, 265. It is unreasonable lo supbusiness by allowing any creditor to seize his pose that the legislature intended that a single property at any time. The law furnishes a false statement should follow a map through remedy only for such wrongful acts as result life, and expose his property to attack by his in injury. That is the theory upon which ac- creditors at any time they chose. This would tions are founded, and upon which all provi- virtually withdraw from his property for all sional remedies are allowed, except where the time the safeguards which protect the property debtor is not amenable to ordinary process, of'all other persons. It would be perpetual outand it is necessary to proceed against his prop- lawry applied to his property, and would tend erty, because there is no jurisdiction of his not only to drive him out of business, but to person. Wrongs not simply designed, but ex expel him from the state. It would violate ecuted, or in process of execution, are those every precedent and all analogies, and we think recognized by the law. Abstract wrongs are that, if the legislature intended to impose such disregarded, because they do no harm. If a a severe penally for possibly a single false false statement is made for the purpose of pro- step, it would have said so in plain terms. We curing credit, but without having that effect, are thus led to answer the question certified in no creditor is injured. If it is made to one the negative, and to affirm the order appealed who does not believe it, or does not act upon from, with costs. it, why should it become the basis of this sum. mary remedy? If made to a commercial
All concur. 34 L. R. A.
FLORIDA SUPREME COURT.
Harry SINGLETON, Piff. in Err., crime of larceny in the courts of this state
disqualifies the convict as a witness, and his parSTATE of Florida.
don for this offense has the effect to restore his
competency to testify as a witness. .)
5. An act of the legislature provided *1. The 12th section of article 4 of the that a party who had been convicted Constitution of 1885 conferred power upon the
of the crime of larceny should be restored to governor,justices of the supreme court,and attor.
civil rights. Held, without deciding whether a ney general, or a major part of them, of whom
restoration to civil rights would include the resthe governor shall be one, to permanently remit
toration of competency as a witness, lost by reafines and forfeitures, to commute punishment
son of the conviction of the crime, that before and grant pardons after conviction, in all cases
the party could testify it must bave such effect, except treason and impeachment, subject to such
and, so construed, it was not competent for the regulations as may be prescribed by law relative
legislature to so enact. to the manner of applying for pardons, and the 6. An accused is entitled to be tried by pardoning power thus conferred is exclusive,
an impartial jury, and when it is made to and cannot be exercised by the legislature.
appear to the trial judge that a fair and impar2. By the amendment of $ 12, article 4, tial trial cannot be had in the county where the adopted this year, the secretary of state, comp- offense was committed, he should direct that the troller, and commissioner of agriculture take accused be tried in another county. This is a the places of the justices of the supreme court, matter left largely to the discretion of the trial as members of the board of pardons.
court, and its ruling on such matters will not be 3. A full pardon of an offense not only disturbed unless it appear from the facts preblots out the crime committed, but removes
sented that the court acted unfairly and comall punishment and disabilities resulting (from
mitted a palpable abuse of sound discretion. the conviction. When extended to a convict in prison, it relieves bim and removes his disabilities,
(November 17, 1896.) and, when granted after bis time of imprisonment has expired, it removes all that is left of the con- NRROR to the Circuit Court for Hillsborough sequences of conviction--his disabilities.
County to review a judgment convicting 4. By statute the conviction of the defendant of murder. Rerersed. *Headpotes by MABRY, Ch. J.
The facts are stated in the opinion.
NOTE.- Legislative power to grant pardon or governor and other officers constituting a board, is amnesty.
exclusive, is based on well-known principles of I. After conriction.
constitutional interpretation, and is strengthened II. Before conviction.
by tbe constitutional provision separating tbe deIII. Incidental or implied pardon.
partments of government and providing that no I. After conviction.
person properly belonging to one of them shall ex
ercise powers appertaining to either of the others The Constitution of the United States and the except when the Constitution expressly provides constitutions of tbe various states, with few ex- for it. On the other hand, the chief authority receptions, confer upon the executive the power to lied upon by tbe court is that of State v. Sloss, 25 grant pardons and reprieves without any express Mo. 291, 69 Am. Dec. 167, whicb, as will appear in declaration as to the power of the legislative de- the next division of this note, can hardly be repartment in such matters. Most of the state con- garded as authority, at least under Constitutions stitutions expressly provide that the governor may which say the governor may pardon "after convicgrant pardon “after conviction;" in some instances tion." the language is general and merely provides for In a later Missouri case, Ex parte Parker, 106 Mo. pardon, without specifying whether it shall be be- 551, the court said: “We all agree the legislature fore or after conviction. In a few states the par- cannot pardon a defendant convicted of crime, but doning power is conferred, not upon the governor we think affixiog an alternative punishment is alone, but upon a board of pardops.
wholly unlike a pardon. Changing a fine to imThe above case of SINGLETON v. STATE is the first prisonment is not pardoning the crime." This was in wbicb the power of the legislature to grant a said in upholding a statute which gave power to a pardon to a particular person after conviction has justice to commute a fine to imprisonment for a been denied by a direct adjudication, although definite time. there are cases referred to in the next subdivision That the islature cannot commute the punishof this note in which legislative pardon or amnesty ment fixed by law after a sentence has been given before conviction has been held unconstitutional. because this is a necessary incident of the govern
There bas been much contrariety of opinion or's pardoning power is also declared in the Opinamong judges and legal writers on the question of ion of the Justices, 14 Mass. 472. the relation between the legislative and executive But in People v. Stewart, 1 Idaho, 546, a statute departments with respect to this subject of pardon approved by the governor of the territory remitand amnesty. As to the legislative power to grant ting the penalty imposed for an offense is sustained ampesty or pardop before conviction, it will be seen as equivalent to a pardon. This was the case of a in the later division in this note that the weight of special statute vacating a judgment on conviction authority is in favor of the power. But as to the of assault and battery and remitting the fine and legislative power to pardon after conviction, the imprisonment on the ground that the defendant decisions, wbile not altogether satisfactory or had been previously convicted and punished under reconcilable, are on the whole against the pow. sentence of another court for the same offense. er. The position of the Florida case above re- The opinion is very brief, and merely holds that it ported, that the express grant by the Constitution is competent for the legislature to pass a law reof the pardoning power "after conviction," to the I mitting punishment. This, it will be noticed, was a
Messrs. Wall & Stevens for plaintiff in but to remove and obviate the objection on ac
count of this conviction the state offered in eviMr. William B. Lane, attorney general, dence and read to the court the Act of 1895, for the State.
chapter 4457, entitled “An Act to Restore How
ard Bishop, late of Marion County, Florida, to Mabry, Ch. J., delivered the opinion of the Civil Rights." In the preamble to this act the court:
conviction and sentence of Bishop, in the The plaintiff in error was indicted, tried, Marion county circuit court, for the larceny and convicted of murder in the first degree, of a watch, is recited; also that about a year and from the sentence of the court imposing subsequent to the conviction it was established the death penalty a writ of error has been sued to the satisfaction of the party to whom the out.
watch belonged that Bishop was not guilty of An error was committed during the progress the crime for which he had been convicted, of the trial of the cause that will necessitate a and for the last five years he had lived in the reversal of the judgment rendered against the city of Tampa, served on the police force of accused. The state introduced as a witness the city, and had conducted himself uprightly one Howard Bishop, who testified to material as a man and officer. The provision of the act and damaging facts against the accused. It is is "that the said Howard Bishop be and is not deemed necessary to set out the testimony bereby restored to civil rights." Section 1096 of the witness, as there can be no doubt that of the Revised Statutes provides that persons it bore directly upon defendant's guilt, was convicted in any court in this state of murder, calculated to influence the jury, and, if im- purjury, piracy, forgery, larceny, robbery, properly admitted, was harmful, and cannot be arson, sodomy, or buggery shall not be comconsidered otherwise than as reversible error. petent witnesses. The Constitution provides An objection was made to Bishop's testifying ($ 11, art. 4) that "the governor shall have on the ground that he had been convicted in a power to suspend the collection of fines and court in this state of the crime of larceny, and forfeitures, and grant reprieves for a period under the statute he was not a competent wit- not exceeding sixty days, for all offenses, exLess. It was conceded that the witness, Howard cept in cases of impeachment. In cases of conBishop, had been convicted at the spring term, viction for treason he shall have power to sus1889, of the circuit court for Marion county, of pend the execution of sentence until the case the crime of larceny, and was sentenced to six shall be reported to the legislature at its next month's imprisonment in the jail of said county; session, when the legislature shall either
territorial case and no constitutional or statutory shop act committed before a certain date, proprovision as to the pardoning power was referred vided they should pay the costs and a certain fee to, although the power of the governor of a terri- to the district attorney. The court held this act tory to grant pardons was conferred by U.S. Rev. unconstitutional, and said: "It is as effectually a Stat. 8 1844.
pardon as though it were one in form." Another So, in two Georgia cases, Bird v. Breedlove, 24 ground of the decision was that the act interfered Ga. 623, and Bird v. Meadows, 25 Ga. 251, the valid. also with the functions of the judicial department. ity of a legislative pardon was sustained by impli- The constitutional provision as to pardon was not cation. In these cases the controversy was as to quoted in this case, but it seems to have been dethe right to recover compensation for services to cided while the original Missouri Constitution of secure the pardon from the legislature, and re- 1820 was in force, which in art. 4, 8 6, provided in covery was allowed, but no constitutional question general terms for "reprieves and pardons” by the seems to have been raised in either of them. governor, without specifying whether or not they
An act for relief from a forfeiture on a bail bond could be granted only after conviction. was held valid in People v. Bircham, 12 Cal. 50, on This was followed by the case of State v. Todd, the ground that the judgment was property of the in 26 Mo. 175, which was little more than a memostate, and could be released by the legislature in randum case, and followed the prior case without such form and on such conditions as it chose to aditional discussion. prescribe. But it does not appear that any ques- Later Missouri constitutions expressly limit the tion was raised as to infringement thereby on the governor's power to pardon by the words “after governor's pardoning power.
conviction." On the other hand, a statute for the repayment The third case was that of State v, Fleming, i of money paid by sureties on the bond of a clerk Humph. 152, 46 Am. Dec. 73, in which it was held to satisfy a fine was held unconstitutional in Haley that a statute prohibiting any fine, forfeiture, or v. Clark, 28 Ala. 439, on the ground that it imprisonment to be imposed or recovered for any amounted to a pardon and infringed upon the gov- offense under a certain prior statute is unconstituernor's function.
tional as applied to pending indictments for prior General pardops, “when found expedient, bave offenses, although convictions have not yet been been issued under the sanction of an act of Parlia- reached. But this decision was rendered under a ment." 1 Chitty, Crim. L. 771. But the consti-Constitution which gave the governor power to. tutional question wbich is presented under our grant pardons "after conviction." Whatever may form of government cannot arise in case of an be the effect of constitutional grant of power to act of Parliament.
the executive to grant pardons" without limiting
it to cases after conviction, it seems unreasonable II. Before conviction.
to find in a grant of power to pardon "after conIn three cases the power of the legislature to viction" any restriction on the legislative power in grant general pardon or amnesty to a class of of the matter before conviction. fenders, although they have not yet been convicted, Such is tbe view taken in the Arkansas case of has been denied. One of these is the case of State State v. Nichols, 26 Ark. 74, 7 Am. Rep. 600, where 1. Sloss (1857) 25 Mo, 291, 69 Am. Dec.
the court decided that the governor's constituute in this case attempted to relieve from prosecu- tional power to pardon "after conviction” does not tion all persons indicted for offenses under a dram-'exclude legislative power to grant pardon and am