The Central Law Journal. definite period beyond the maturity of the

note, can not be set up in bar to an action

brought on the note before the expiration of SAINT LOUIS, JULY 4, 1879. the period. This decision is antagonized by

several decisions of the same court, wbich are CURRENT TOPICS.

not cited in the opinion. In Rhodes v. Thomas, 2 Ind. 638; Ward v. Walton, 4 Ind. 75,

and Billingsly v. Stratton, 11 Ind. 396, it was The Supreme Court of Illinois in Hoecker v.

laid down as a general principle of the common People, decided on the 20th ult., held that to

law that the parties to a written contract, not an indictment for selling liquor without a under seal, may, after its execution, and before license it was no defense that the defendant was breach, dissolve, waive, discharge or qualify a druggist and had sold the liquor upon the pre- the contract, or any part of the same, by a new scription of a physician. CRAIG, C. J., said: verbal contract. In Rhodes v. Thomas, supra, "It was a ground of defense that the sales were the case of Goss v. Lord Nugent, 5 B. & A. made on the prescription of a physician, and it 58, is cited, in which the principle above statis complained that the court refused to give an

ed is limited to contracts which are not reinstruction asked by the defendant to the ef

quired by the statute of frauds to be in writfect that if the sales of the liquor were made

ing. In conformity to these rulings, the case upon a prescription of a practicing physician,

of Rigsbee v. Bowler, 17 Ind. 167, was deand at the time of such sales the purchasers

cided. The holder of two promissory notes, represented to the defendant that the liquor | neither of which was due, agreed with the was wanted to be used as a medieine in case

maker that, if he would pay off one at once, of actual sickness, and that the defendant

he should have a given time after the making made the sale upon such prescription and rep

of the other to pay

off. The maker accordresentation in good faith, to be used as a med

ingly paid the former note. These facts were icine only, then the defendant would not be

held to constitute a defense to a suit brought liable and should not be found guilty in re

on the unpaid note before the expiration of spect to such sales. We do not perceive how

the agreed time of extension. Peck v. Beckthe prescription of a physician and the repre

with, 10 Ohio St. 497, is cited and approved, sentations of a purchaser can be admitted as a

in which it was held that an agreement for justification for making sales of intoxicating value to extend the time of payment, made beliquors contrary to the statute, at least, with

fore the maturity of the note, is a valid and out proof that the representations made were true. The words of the statute are unquali-binding engagement, and a bar to a suit fied; whoever not having a license shall sell,

brought before the expiration of the time. In without any exception or limitation whatever

Conaway v. Dorst, 20 Ind. 426, which was a as to any class of persons or cases. By the

suit against the maker on a promissory note, 46th clause of section 62, chap. 24, p. 220,

he answered an agreement, made before the Rev. Stat., 1874, provision is made for the

commencement of the action, for an extension granting of permits by the authorities of a

of time of payment, which had not expired, city or village to druggists for the sale of in

In support of the answer, to which a demurtoxicating liquors for medicinal, mechanical,

rer had been sustained, the defendant cited sacramental and chemical purposes. Without Rigsbee v. Bowler, supra. The court, howsuch a permit or a license the sales made by

ever, upon the authority of that case, held the the defendant stand without justification.”

answer bad, because it did not appear that the agreement for extension was made before the maturity of the note.

In Nelson v. White, 61 Ind. 139, the Supreme Court of Indiana held that an agree- A question as to how the facts showing ment made by the holder of a promissory jurisdiction in a suit in the Federal Circuit note with the maker, upon a valuable consid- Court, should appear in the record was ruled eration, to extend the time of payment for a

on in the United States Circuit Court for the Vol. 9-No. 1.

was

over

Southern District of Ohio in the recent case upon the citizenship of the parties, the deof Mexico Southern Bank v. Reed. The case cisions hold that for the purposes of suit, a was an ordinary suit brought on a promissory corporation is a citizen of the State under

a note, the caption of the petition being “The whose laws it has its existence and being." Mexico Sonthern Bank, a corporation, plaintiff v. Townsend Reed, defendant.” The defendant moved to dismiss “ because the name

COMMON LAW EXEMPTIONS. and designation of the plaintiff, as a corporation in the said caption, without assuming

Although many of the States have made therein its location, character, and kind, are

such provision by statute for an exemption not the same as is averred in the body thereof.

from sale on execution of property of resident

citizens as to include all that was exempt at The averment is, referring to the said caption, 'said plaintiff,' when, in fact, in said

common law, many, perhaps the most of them,

have not. The statutory exemption is generally caption naming the plaintiff, it is not

allowed only to householders or heads of faminamed or described as in the body of

lies; in some cases the exemption is of propthe petition.” The motion ruled, SWING,J.,saying: "The vital point in the

erty of a specified value to be selected by the

debtor, and few or none of the States have exmotion to dismiss the petition, and the only

tended the benefits of their exemption laws to point necessary to be decided by the court, is

non-residents or aliens. whether the caption of the petition is sufficient

These exceptions suggest questions which to give the court jurisdiction in this case. 'It

are important and worthy of examination, the is a settled doctrine of this court that, in cases more especially as the opinion seems to prewhere the jurisdiction of the Federal courts vail that statutory exemptions are in derogadepends upon the citizenship of the parties,

tion of the common law, and because the rule the facts essential to support that jurisdiction is firmly established that all are excluded from must appear somewhere in the record,' says their benefits who are not specially named in Judge Harlan in Robertson v. Cease, 7 Cent.

them. Indeed, the rigorous rule is sometimes L. J. 476. In Railway Company v. Ramsay, asserted to be that even the wearing apparel 22 Wall. 326, the Chief Justice said: They

of a debtor not entitled to the benefit of the need not necessarily, however, be averred in

exemption laws of a State, if found off his the pleadings. It is sufficient if they are in

person or out of his possession, so that no some form affirmatively shown by the record.

trespass would be committed in the taking, That view was approved by the subse- might be lawfully taken on execution for quent case of Bridges v. Sperry, 95 U. S. 403. debt.3 Rut such a rule is certainly neither to In the present case the only record is the pe- be tolerated by humanity or justified by law. tition. Therefore, the necessary allegations In examining these questions we are obliged must be contained somewhere in the petition, to rely very considerably upon general prinand must be distinctly and positively averred, ciples, and can derive very little aid from the but not necessarily in the caption; and it is books, for the reason that the questions have not sufficient that the facts of jurisdiction may very seldom come before the courts for dibe inferred argumentatively from the aver- rect adjudication. In practice the questions ments. Now, though in this case the state- are common enough, but the debtors who ments of the location, character and nature of most need them cannot afford the expense of the corporation, the plaintiff herein, are not claiming the limited privileges granted them set forth in the caption of this petition, yet by the common law; and a creditor would allegations essential to support the jurisdiction seldom find it profitable to appeal in such a of the court, so far as periains to the plaintiff, case from an adverse decision of an inferior appear in the body of the petition, namely, that the plaintiff is a corporation, organized under (1.) Herm. on Executions, 87; Ward v. Kuhn, 16 the laws of the State of Missouri, and is en

Minn. 159.

(2.) Hill v. Johnson, 29 Penn. St. 362; Corp v. Grisgaged in the business of banking in the City

wold, 27 Iowa 397; Swan v. Stephens, 99 Mass. 7; Finof Mexico, in said State' and, in cases where ley v. Sly, 44 Ind. 266; Bowne v. Witt, 19 Wend. 475. the jurisdiction of the Federal courts depends

(3.) Cook v. Gibbs, 3 Mass. 193; Bowne v. Witt, supra.