author: FARIS, J.

text:
    JOHN DONOVAN v. WELLS, FARGO & COMPANY, Appellant.
    In Banc,
    June 1, 1915.
    1. INTERSTATE COMMERCE: Congressional Legislation: State Laws and Decisions Thereby Superseded. The Carmack Amendment to the Hepburn Act (Sec. 20, Act June 29, 1906, c. 3591, 34 U. S. Stat. at L. 584, 593) so completely covered every detail of interstate commerce that it cannot be doubted that Congress intended to take possession of the whole subject, including the liability of a common carrier under a bill of lading, and to supersede all State regulation in reference to it; and thereby the. former adjudications of this court and other State: courts pertaining to the liability of a carrier under an interstate-shipment contract, not in harmony with such amendment and the subsequent decisions of the Supreme Court of the United States, were likewise superseded.
    2. -: Negligence: Limited By Agreed Tariff. Following the-decisions of the Supreme Court of the United States, it is held', that an interstate carrier cannot exempt himself from liability for his own negligence or that of his servants; but he-may by a just, fair, open and reasonable agreement limit the amount recoverable by the shipper in ease of loss or damage, even though due wholly to the carrier’s negligence, to an agreed', value placed upon the thing shipped for the purpose of obtaining the lower of two or more tariff rates proportioned to the amount of the risk.
    3. -: Rate: Unreasonable Contract. If the charges for an interstate shipment of live stock, filed as the tariff rates with the Interstate Commerce Commission and properly posted, are-, unreasonable or unjust the attack upon them on that account, must be made before the Commission; while in force, they are: equally binding on carrier and shipper; if the published rates; provide for alternate rates based on value, and the shipper-names a value based on the lower rate, the carrier in the absence of rebating or false rating is entitled to collect the rate-which applies to the valuation, and if sued for damages is liable only for what the shipper had declared the value to be,, and the shipper cannot claim a higher amount on the ground" that the rate for a larger valuation was so excessive as to be-unreasonable and unjust and was devised by the carrier -for-the purpose of forcing the shipper to surrender by contract his; right to claim actual damages.

      4. -: Agent’s Written Contract: Oral Agreement With Owner: Published Rates. The shipper and carrier must both take notice of the tariff rates published in accordance with the Interstate Commerce Act, and have a right to make a contract calling for a tariff rate based upon the value of the property transported; and where an oral agreement for an interstate shipment is made by the carrier and owner, the terms of which are forbidden by that law, and a published interstate rate is filed containing regulations prescribing conditions precedent for the acceptance of goods for carriage, he who delivers such goods for shipment at the owner’s request must be held to be authorized by the owner to enter into and execute the written contract of shipment in harmony with the legal regulations, and if he places a value upon the thing shipped which calls for the lowest tariff rate, the owner is bound thereby, and cannot in case of loss or injury recover as damages a greater sum than such value.
    5. -: Carrier’s Knowledge of Actual Value. In the absence of collusion between the carrier and shipper, actual knowledge by the carrier that the real value of the horse largely exceeded that declared does not make the limited-liability contract a violation of the Interstate Commerce Act, and the carrier is not thereby made liable to pay the actual value of the horse in case of total loss.
    Appeal from Buelianan Circuit Court. — Hon. W. K. Amide, Judge.
    Reversed and remanded.

      Lathrop, Morrow, Fox & Moore and Culver & Phillip for appellant.
    (1) The shipment in question was interstate. It was therefore controlled by the Interstate Commerce Act and its amendments. Under section 20' of the Carmack Amendment to said act, as construed by the Supreme Court of the United States, the plaintiff in this case could not recover more than the declared value on which the shipping rate was based as snown by defendant’s filed and published tariffs and as provided in the shipping contract. The court erred in permitting the recovery of the full value notwithstanding these tariffs and said contract. Express Co. v. Croninger, 226 U. S. 491; Railroad v. Miller, 226 IT. S. 513; Railroad v. Latta, 226 IT. S. 519; Kansas City Southern Ry. Co. v. Carl, 227 TJ. S. 639; M. K. & T. Ry. Co. v. Harriman, 227 IT. S. 657. (2) It is no defense to the shipper to say that he was not familiar with the tariffs or that his shipping agent violated his instructions. It is presumed that the shipper has taken notice of the duly filed tariff; and such tariff and a contract made pursuant to its terms are binding and conclusive on both shipper and carrier. Kansas City Southern Ry. Co. v. Carl, 227 U. S. 639; Great Northern Ry. Co. v. O’Connor, 232 IT. S. 508.

      John E. Dolman for respondents.
    We agree with the defendant that there is only one point in this ease, and that it is to be determined by the construction of tha Interstate Commerce Act. We assume for the purpose of presenting it that where there are two rates based upon value, the value fairly declared by the shipper as the true value determines the legal "rate which the carrier must exact and the shipper pay, and which the court must accept in determining the rights and liabilities of the parties; and that the rule of law which has always obtained in this State and most other common law jurisdictions that a. carrier will not be permitted to contract against liability for the negligent performance of his public duties has been modified (if it be a modification) to that extent by the Interstate Commerce Act, but we insist that the rule thus established has no application in this case, because there was no such declaration or agreement. Boston & Maine Ry. Co. v. Hooker, 233 IT. S. 97.
   FARIS, J.

This is an action brought in the circuit court of Buchanan county for the negligent killing of a horse of plaintiff by defendant, while defendant was engaged as a carrier in transporting said horse from Boston, Massachusetts, to St. Joseph, Missouri.

As a foreword we may say that respondent, pending this appeal here, died and this cause has been properly revived in the names of John D. Richardson and J. Gr. Schneider as administrators of the estate ■of respondent, deceased. With this fact kept in mind we see no valid reason for disturbing the style of' this ■case and will refer to the substituted respondents as plaintiff, and to appellant herein simply as defendant.

The facts which are necessary to an understanding of the points discussed, are as follows:

Colonel John Donovan, originally plaintiff, now, as stated, deceased, sometime in the latter part of May, 1907, procured one Louis Pfingst, a resident of Boston, Massachusetts, and a friend of plaintiff, to purchase for him a valuable horse named “Plexo,” being the ■same which was killed by defendant’s negligence. The price paid for the horse Plexo by plaintiff was the sum of $2600. Plaintiff being desirous of having this horse shipped by express from Readville, Massachusetts, a suburb of Boston, to St. Joseph, Missouri, procured the delivery of the horse by said Pfingst at the office of defendant in Boston. A day or so prior to ■such delivery one Nichols, the agent of defendant at :St. Joseph, called on plaintiff with a view of procuring for defendant the transporting of the horse. Relating what occurred in his conversation with Nichols, plaintiff testified as follows:

‘ ‘ I told Mr. Nichols that I had a horse and a mare at Boston, and I asked him what it would cost me to deliver them at St. Joseph. He told me $135 each. I asked him if it was the same price for each horse, without regard to value. He said, ‘Yes.’ I asked him if a horse that I bought for twenty-six hundred dollars, and was worth that many thousand, ought not to be charged any more than a mare that cost two hundred and seventy dollars, and was worth about three hundred and fifty dollars. He said a horse was a horse, and all carried at the same rate, and he quoted a case where I had shipped a big Perdieron stallion to Portland, Oregon, that weighed twenty-three hundred pounds, and he was carried at a rate of a thousand pounds. He said all horses wore alike. I thought that that was a pretty big price for the shipment, and I wrote to W. T. Van Brunt, who was a director in the Wells Fargo Company in New York. I had had-some previous shipments with them, and I asked him if that was —- . . . I asked if, on account of the value of the horse, I should require a special car. I asked Mr. Nichols, if, on account of the value of the horse, I should not have a special car, and a man in charge, and he told me no, that they would be shipped in portable stalls, in the regular express car, where a man who understood it would care for them, and whefe there was always at-least one messenger right in the car with them, day and night, and that I would get them in three days from the time they left there. That was my contract with Mr. Nichols, and he said he would arrange the shipment in Boston, which he did, as far as I know. I asked Mr. Nichols if there was any chance of him being mistaken about the value- of the horse, and told him that by shipping by freight a stallion was always charged three or four times as much as a gelding or a mare, and he said that the absence of that in express shipments, and the difference in time, was what made the price; and I told him to go ahead and do it, and he said he would instruct Boston, and that I would have no further trouble about it. ’ ’

■ Shortly after the above conversation plaintiff became ill, though he had in the meantime and prior to his’ illness, apparently, sent the following telegram to said Pfingst, which, date, address and signature Omitted, is, to-wit:

“Please send both horses quick by Wells Fargo Express without man in charge. Express people will feed and care for them. I leave it to.you about Flexo harness and traps. I naturally want all necessary to work him; do not know how much that requires, as have never seen him rigged for work. Wire me when they leave.”

The above telegram was shown by Pfingst to defendant’s agent at Boston, who thereupon wired Nichols at St. Joseph ¿s follows:

“A man whose responsibility is unknown to me shows despatch from John Donovan, St. Joseph, ordering two horses forwarded by Wells Fargo to St. Joseph, asks us to furnish whole car. Please interview consignee, telegraph us suitable instructions. Horses now at Readville, exclusive office Adams Express, ten miles from Boston, therefore shipment must be brought to Boston if Wells Fargo is to handle.”

In answer to the telegram last above Nichols wired the below message to agent of defendant at Boston: “Secure Donovan horses. Have them driven to Boston and forward by our line.. Don’t want whole car, but do want safe handling in portable stalls. Wire departure. Plave quoted him three rates on one thousand pounds each. No special valuation. ’ ’

Prior to sending the above telegram Nichols had called on plaintiff for further instructions, but plaintiff being ill was unable to see him, though the nature of Nichols’s business, which was to obtain certain and definite information as to the manner in which plaintiff desired to have the horse shipped, was communicated to plaintiff by the latter’s daughter. Plaintiff thereupon wrote a note to defendant’s agent, Nichols, as follows:

“Don’t want exclusive car. Don’t want man in charge. Do want horse [sic] brought to Boston and shipped by W. F. [Ex. at price named by you,, $13.5 each. ’ ’

Following these instructions Pfingst on May 29, '1907, delivered the horse Flexo to defendant, together with a little mare not here in controversy, upon an express car at Boston, and on delivering these horses executed what is called in the record a “limited liability live stock contract.” The form of these contracts is so well known that we do not deem it necessary to take up space with the whole of this one and content us therefore with setting out only such parts as are necessary to make clear the discussion. The contract in question began with a “Notice to shippers,” which notice continuing, provided that “the shipper will value his stock, which valuation will be inserted in the contract, and the charge for carriage will be based on such valuation.” Other clauses pertinent ran thus:

This contract made at Boston, Mass., this 29 day of May, 1907, between Wells Fargo & Company, party of the first part, hereinafter called the Express Company, and L. Pfingst, hereinafter called the shipper, party of the second part.
Witnesseth: That the Express Company undertakes to forward to the railroad depot reached hy the Express Company, which is nearest to destination, the animals hereinafter mentioned, of which the shipper declares himself to be the' owner (or duly authorized agent of the owner), to-wit: One horse consigned to John Donovan at So. St. Joseph, Mo., for the sum, of one hundred thirty-five dollars and no cents, which charge is fixed by and based upon the value of said animals as declared by the shipper, as hereinafter mentioned. [Italics ours.]
And in consideration of the premises, said parties agree: That the shipper, before delivering the said animals to said Express Company, demanded to be advised of the rates to be charged for the carriage of said animals as aforesaid, and thereupon was offered hy said Express Company alternative rates proportioned to the value of said animals, such value to be fixed and declared by the shipper, and according to the following tariff of charges, viz.:
Charge for the shipment at these values:
For horses,, jacks or mules of a value not exceeding $75. ...
When the value declared by the shipper exceeds the value' stated in the preceding paragraph, an addition to the foregoing charge will be made according to the following schedule, to-wit: When the merchandise rate is .’ . . over $3 per 100 lbs. and not over $5 per 100 lbs., the additional charge will be 12 per cent of excess valuation.
The shipper in order to avail himself of said alternative rates, and in consideration thereof, being asked by the Express Company to value said property, now declares the value hereinafter mentioned to be the true values of said animals so to be shipped as follows: Number and kind, one horse; value, $50. ... .
Wells Fargo & Compart, by M’Gowar, Agent.
Party of the first part.
Louis Peingst,
(Duly authorized Agent of the Owner.) Party of the second part.

The horse Flexo was in the course of transportation so badly injured by the negligence of defendant as to cause his death. This action thereupon followed and the trial below resulted in a verdict for plaintiff for the sum of $10,000, the same being the value of the horse as found by the jury.

Upon the trial, defendant, having duly pleaded all applicable provisions of the Interstate Commerce Act, offered among other things its duly filed and published tariff sheets, which were in force on the date of the making of this shipment, and which, together with regulations governing shipments, had theretofore been duly filed with the Interstate Commerce Commission as required by law.

In brief, these tariff sheets showed that the merchandise rate- from Boston to St. Joseph was $4.50' per hundred pounds; that the rate on horses was three times the said merchandise rate, based upon the arbitrary estimated weight of one thousand pounds for each horse, regardless of the actual weight thereof; thus making the charge for the carriage of a horse of a •declared value not to exceed $75, the sum of $135, as set out in the live stock contract.above. This tariff sheet further says that “when the value declared by the shipper exceeds that given above, ah additional charge must he made on the excess valuation” of 12% of such excess valuation.

There is in the case as presented to us on this appeal, no contention as to the fact that defendant’s negligence caused the death of the horse; nor is any question raised as to the correctness of the jury’s verdict as to the value of said horse. The sole question is whether under the facts here plaintiff is entitled to recover the sum of $10,000, conceded, for the purposes of this appeal, to have been the value of the horse in question, or whether he is limited to the sum of $50, the declared value as set forth in the live stock contract executed by said Pfingst. Such further facts as may be necessary to make clear what we say, will be found in the opinion.

OPINION.

■Much testimony was taken and many instructions given upon the trial, but in the last analysis whether we shall affirm, or whether we shall reverse and remand this case, turns' upon the answer to this single question, viz.: May an interstate shipper in case of loss, recover more than the declared value of an article, where there are two rates based upon value, and where, though the true value is made known, a lower rate is taken upon such arbitrary declared value fixed by the shipper for the purpose of securing the lower rate? The question as put comprehends the compliance by the carrier with all of the provisions of the Interstate Commerce Act, as to filing and publishing its tariff sheets which were in force on the 29th day of May, 1907, the fact as to which in this case is not seriously denied.

I. Since this is conceded to be an interstate shipment, and since it involves the legal effect of the Car-mack Amendment to the Hepburn net (34 U. S. Stat. at L. 584, chap. orrw \ • 3591), we need m nowise concern ourselves with the condition upon the case stated of our own statute law or of the common law as inter-' preted in this State. The curious may consult the cases of Rice v. Railroad, 63 Mo. 314; McFadden v. Railroad, 92 Mo. 343; Ward v. Railroad, 158 Mo. 226; Leas v. Railroad, 157 Mo. App. 455; Blankenship v. Railroad, 160 Mo. App. 631; Oxley v. Railroad, 65 Mo. 629; Paddock v. Railroad, 155 Mo. 524; McElvain v. Railroad, 151 Mo. App. 126; McElvain v. Railroad, 176 Mo. App. 379; Dawson v. Railroad, 79 Mo. 296; Kellerman v. Railroad, 136 Mo. 177; George v. Railroad, 214 Mo. 551; Railroad v. Cleary, 77 Mo. 634; Richardson v. Railroad, 149 Mo. 311, for both the past and present condition of our own Missouri holdings, when unaffected by the Carmack Amendment to the Interstate Commerce Act. In the light of the recent rulings of the Supreme Court of the United States ■our decisions have been wholly superseded and become matters of ancient legal history or legal curiosity only. [Adams Express Co. v. Croninger, 226 U. S. 491; Atchison, Topeka & Santa Fe Ry. Co. v. Robinson, 233 U. S. 173; Missouri, Kansas & Texas Ry. Co. v. Harriman, 227 U. S. 657; Great Northern Ry. Co. v. O’Connor, 232 U. S. 508; Kansas City Southern Ry. v. Carl, 227 U. S. 639; Wells, Fargo & Co. v. Neiman-Marcus Co., 227 U. S. 469; Boston & Maine Railroad v. Hooker, 233 U. S. 97.]

Clearly and concisely this legislative intent to occupy the entire field of interstate shipments and to wholly oust the several states from control thereof, is expressed by the Supreme Court of the United States in its construction of said Carmack Amendment in the case of A., T. & S. F. Ry. Co. v. Robinson, supra, wherein at page 180 it is said:

“It is thus seen that the defendant specially set up a defense under the Interstate Commerce Act, a Federal statute, which, if denied to him, was an adverse ruling of Federal right which would warrant the-bringing of the case to this court from the highest, eourt of a State under former section 709 of the Be-vised Statutes of the United States, now section 237 of the Judicial Code. It is apparent from the foregoing statement that the Federal question now presented involves the ruling of the State court denying to the carrier the benefit of the Interstate Commerce Act, a compliance with which was set up in the amended answer and supported by testimony tending to show the truth of the allegations thereof.

“That the effect of the Carmack Amendment to-the Hepburn Act, sec. 20, Act of June 29, 1906-, chap. 3591, 34 Stat. 584, 593, was to give the Federal jurisdiction control over interstate commerce and to make-supreme the Federal legislation regulating liability for property transported by common carriers in interstate-commerce has been so recently and repeatedly decided in this court as to require now little more than a reference to some of the cases. [Kansas City Southern Ry. Co. v. Carl, 227 U. S. 639; Missouri, Kansas & Texas Ry. Co. v. Harriman, 227 U. S. 657; Chicago, Rock Island & Pacific Ry. Co. v. Cramer, 232 U. S. 490; Great Northern Ry. Co. v. O’Connor, 232 U. S. 508.] We regard these cases as settling the proposition that the shipper as well as the carrier is bound to take notice of the filed tariff rates and that so long; as they remain operative they are conclusive as to the-rights of the parties, in the absence of facts or circumstances showing an attempt at rebating or false-billing. ’ ’

The applicable part of said Amendment to which reference is made in the excerpt supra, reads thus:

“That any common carrier, railroad or transportation company receiving property for transportation.. from a point in one State to a point in another State shall issue a receipt or hill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered, or over whose line or lines such property may pass, and no contract, receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed: Provided, that nothing in this section shall deprive any holder of "such receipt or bill of lading of any remedy or right of action which he has under existing law.”

That upon first blush the cardinal dominating intent of this Amendment may appear to have been to devise means by which (1) a shipper, suffering loss or damage, could have at his door a convenient defendant as well as a handy forum; and (2) that it was designed to lessen the expense and difficulty, amounting often to impossibility, of making proof of the place and facts of the actionable injury or loss and of the identity of the actual tortfeasor, is now wholly beside the question. The Supreme Court, however, had already in an earlier case, Adams Express Co. v. Croninger, supra, at page 504 et seq., succinctly ruled upon this question, as well as upon that previously herein mentioned, as mark this language:

“First: It affirmatively requires the initial carrier to issue ‘ a receipt or bill of lading therefor, ’ when it receives ‘property for transportation from a point in one State to a point in another.’

“Second: Such initial carrier is made ‘liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it.’

‘ ‘ Third: It is also made liable for any loss, damage, or injury to such property caused by ‘any common carrier, railroad or transportation company to which such property may he delivered or over whose • line or lines such property may pass..’

“Fourth: It affirmatively declares that ‘no contract, receipt, rule or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed.’

“Prior to that'amendment the rule of carrier’s’ liability, for an interstate shipment of property, as enforced in both Federal and State courts, was either that of the general common law as declared by this court and enforced in the Federal courts throughout the United States (Hart v. Pennsylvania Railroad, 112 U. S. 331); or that determined by the supposed public policy of a particular State (Pennsylvania Railroad v. Hughes, 191 U. S. 477); or that prescribed by statute law of a particular State (Railroad v. Solan, 169 U. S. 133).

“Neither uniformity of obligation nor of liability was possible until Congress should deal with the subject. The situation was well depicted by thé Supreme Court of Georgia in Southern Pacific Co. v. Crenshaw, 5 Ga. App. 675, 687, where that court said:

“ ‘Some states allowed carriers to exempt themselves from all or a part of the common law liability, by rule, regulation or contract; others did not; the Federal courts sitting in the various states were following the local rule, a carrier being held liable in one court when under the same state of facts he would be exempt from liability in another; hence this branch of interstate commerce was being subjected to such a diversity of legislative. and judicial holding that it was practically impossible for a shipper engaged in a business that extended beyond the confines ■ of his own state, or for a carrier whose lines were extensive, to know without considerable investigation and trouble, and even then oftentimes with but little certainty, what would be the carrier’s actual responsibility as to goods delivered to it for transportation from one state to another. The Congressional action has made an end to this diversity; for the national law is paramount and supersedes all State laws as to the rights and liabilities and exemptions created by such transaction. This was doubtless the purpose of the law; and this purpose will be effectual, and not impaired or destroyed, by the State court’s obeying and enforcing the provisions of the Federal statute where applicable to the fact in such cases as shall come before them. ’

“That the legislation supersedes all the regulations and policies of a particular State upon the same subject results from its general character. It embraces the subject of the liability of the carrier under a bill of lading which he must issue and limits his power to exempt himself by rule, regulation or contract. Almost every detail of the subject is covered so completely that there can be no rational doubt but. •that Congress intended to take possession of the subject and supersede all State regulation with reference-to it. Only the silence of Congress authorized the exercise of the police power of the State upon the subject of such contracts. But when Congress acted in such a way as to manifest a purpose to exercise its conceded authority, the regulating power of the State ceased to exist. [Northern Pacific Ry. v. State of Washington, 222 U. S. 370; Southern Railway v. Reid, 222 U. S. 424; Mondou v. Railroad, 223 U. S. 1.] ”

•Therefore, whether the effect of thus extending Federal control and authoritative Federal judicial con•struction over questions arising out of interstate shipments, to the entire preclusion of conclusive interpretation by the State courts, was adventitious or intentional, confessedly this effect has followed this amendment pursuant to a construction thereof neither harsh nor unduly violent and in this construction we acquiesce ungrudgingly, as in duty bound.

II. We do not understand plaintiff to make the broad contention that a limited-liability live-stock contract, based upon tbe declared value as contradistinguished from the actual value of the animal shipped, is ipso facto void, for that it is of the nature of a contract against the negligence of the carrier. If this broad contention be among the reasons urged, the point has long ago been settled against him. [Hart v. Pennsylvania Railroad Co., 112 U. S. 331; Adams Express Co. v. Croninger, 226 U. S. 491.]

In the case of Adams Express Co. v. Croninger, supra, at pages 509 to 511, the Supreme Court said:

“That a common carrier cannot exempt himself from liability for his own negligence or that of his servants is elementary. [York Mfg. Co. v. Illinois Central Railroad, 3 Wall. 107; Railroad Company v. Lockwood, 17 Wall. 357; Bank of Kentucky v. Adams Express Company, 93 U. S. 174; Hart v. Pennsylvania Railroad, 112 U. S. 331, 338.] The rule of the common law did not limit his liability to loss and damage due to his own negligence, or that of his servants. That rule went hevond this and he was liable for any loss or damage which resulted from human agency, or any cause not the act of God, or the public enemy. But the rigor of this liability might be modified through any fair, reasonable and just agreement with the shipper which did not include exemption against the negligence of the carrier or his servants. The inherent right to receive a compensation commensurate with the risk involved the right to protect himself from fraud and imposition by reasonable rules and regulations, and the right to agree upon a rate proportionate to the value of the property transported.

“It has therefore become an established rule of the common law as declared by this court in many cases that such a carrier may by a fair, open, just and reasonable agreement limit the amount recoverable by a shipper in ease of loss or damage to an agreed value made for the purpose of obtaining the lower of two or more rates of charges proportioned to the amount of the risk. [York Mfg. Co. v. Railroad, 3 Wall. 107; Railroad v. Lockwood, 17 Wall. 357; Hart v. Pennsylvania Railroad, cited above; Phoenix Ins. Co. v. Erie & W. Trans. Co., 117 U. S. 312, 322; Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 442; New York, L. E. & W. Ry. v. Estill, 147 U. S. 619; Primrose v. W. U. Tel. Co., 154 U. S. 1, 15; Chicago, etc., Ry. v. Solan, 169 U. S. 133, 135; Calderon v. Atlas Steamship Company, 170 U. S. 272, 278; Pennsylvania Railroad v. Hughes, 191 U. S. 477, 485.]

“That such a carrier might fix his charges somewhat in proportion to the value of the property is quite as reasonable and just as a rate measured by the character of the shipment. The principle is that the charge should bear some reasonable relation to the responsibility, and that the care to be exercised- should be in some degree measured by the bulk, weight, character and value of the property carried.

“Neither is it conformable to plain principles of justice that a shipper may understate the value of his property for the purpose of reducing the rate, and then recover a larger value in case of loss. Nor does a limitation based upon an agreed value for the purpose of'adjusting the rate conflict with any sound principle of public policy. The reason for the legality of such agreements.is well stated in Hart v. Pennsylvania Railroad, cited above, where it is said (p. 340):

“ 'The limitation as to value has no tendency to exempt from liability for negligence. It does not induce want of care. It exacts from the carrier the measure of care due to the value agreed on. The carrier is bound to respond in that value for negligence. The compensation for carriage is based on that value. The shipper is estopped from saying that the value is greater. The articles have no greater value, for the purposes of the contract of transportation, between the parties to that contract. The carrier must respond for negligence up to that value. It is just and reasonable that such a contract, fairly entered into, and where there is no deceit practiced on the shipper, should be upheld. There is no violation of public policy. On the contrary, it would be unjust and unreasonable, and would be repugnant to the soundest principles of fair dealing and of the- freedom of contracting,, and thus in conflict with public policy, if a shipper should be allowed to reap the benefit of the contract if there is no loss, and to repudiate it in case of loss.’ ”

Regard being had to the duty under which we labor of conforming in all things to the views held by the Supreme Court, we hold that a limited-liability contract for the valuation and shipment of live stock is not void if “the carrier by a fair, open, just and reasonable agreement limit the amount recoverable by a shipper in case of loss or damage to an agreed value for the purpose of obtaining the lower of two or more rates of charges proportioned to the amount of the risk.” [Boston & Maine Railroad Co. v. Hooker, 233 U. S. 97.] Neither does this view differ very largely, if at all in principle, from the rule long held in this State. [Paddock v. Railroad, 155 Mo. l. c. 544; George v. Railroad, 214 Mo. 551.]

III. Coming now to the several bones of contention ; and in order to be exact as well as fair, we state the precise position of counsel for plaintiff in his own language. Stating his attitude (a little bit negatively, it may be), he says:

“We will assume for the purpose of presenting it that where there are two rates based upon value, the value fairly declared by the shipper as the true value determines the legal rate which the carrier must exact and the shipper pay, and which the-court must accept in determing the an(J liabilities of the parties; and that the rule of law which has always obtained in this State and most other common-law jurisdictions that a carrier will not be permitted to contract against, liability for the negligent performance of his public duties has been modified (if it be a modification) to that extent by the Interstate Commerce Act, but we insist that the rule thus established has no application in this case, because there was no such declaration or agreement.” (Italics ours).

Elaborating his position as we gleam it from other parts of his argument, plaintiff urges that since he informed Nichols, the general agent of defendant, of the true purchase price of the horse killed, viz., $2600 (as well as the pretium affectionis, viz., $26,000), it then and there became the duty of defendant under the provisions of the Interstate Commerce Act to charge and collect the true and correct tariff rate upon this value (Query, the purchase price value, or the pretium affeciionis value? — a large part of which latter at least was recovered below) and that the neglect and failure of the defendant’s agent to charge this sum (again the query arises, which sum?), was in effect a.fraud and evasion of the provisions of the letter and spirit of the Interstate Commerce Act, and a creation of a preferential rate, or rebate, and that thus and thereby the transaction so far ceased to be “fair, open, just and reasonable,” as to render the carrier liable to pay the true value of the horse killed.

Let us see if this is true. In determining the applicable law we may concede two facts that are either not. denied, or which folloAV as true in law from well-known and settled fundamental principles, (a) that plaintiff at St. Joseph and plaintiff’s agent Pfingst at Boston informed defendant of the value of the horse in question; the former valuing him at-from $2600 to $26,000, and the latter at $2,000, and (b) that in both the St. Joseph ■office and the Boston office of defendant, its filed and printed tariff sheets and regulations were published in compliance with the Interstate Commerce Act. [Sec. 6, Int. Com. Act, 34 U. S. Stat. at Large, 584; Texas & Pacific Railway Co. v. Cisco Oil Mill, 204 U. S. 449.] Both plaintiff and Pfingst testify to the matter of the oral declaration of value, thus making of it a question solely for the jury, and which we may not resolve. The employees of defendant at both the said offices testify as to the publication of the rates, and no one denies the fact categorically, though plaintiff swears he saw no such tariffs, but frankly admits that he did not ask to see them. So, we need not take time or space to ex: amine carefully, or to decide, whether such publication be a condition precedent to the enforceability of a filed rate under the'Interstate Commerce Act. Besides, this is a question for the Federal courts and the curious may examine the cases of Texas & Pacific Railway Co. v. Cisco Oil Mill, supra; Great Northern Ry. v. O ’Connor, 232 U S. 508; Atchison, Topeka & Sante Fe Ry. Co. v. Robinson, 233 U. S. 173, and Boston & Maine Railroad v. Hooker, 233 U. S. 97.

In passing we note that learned counsel for plain.tiff complains with some bitterness and sarcasm that if plaintiff had declared the value of the horse killed as the jury found it, then pursuant to the rates set forth in defendant’s filed tariff sheets, plaintiff would have been compelled to pay $1326 for the carriage of this horse from Boston to St. Joseph, and counsel suggest that the horse could have been driven from Boston to St. Joseph “on the hoof” much more cheaply. From this fact plaintiff argues “that instead of this twelve per cent rate being imposed in good faith for the production of revenue, it was devised solely for the purpose of forcing the public to surrender by contract the remedies which the law provided against carriers for the negligent performance of their public duties.” Whether this be a fact, or arise as an obvious ; deduction from the facts, we need not inquire, as we 'regard it as settled against plaintiff’s contention by ‘ what is held by the Supreme Court in the case of Boston & Maine Railroad v. Hooker, supra, wherein at - page 121 it was said:

“If the charges filed were unreasonable, the only attack that could be made upon such regulation would be by proceedings contesting their reasonableness before the Interstate Commerce Commission. While they were in force they were equally binding upon the railroad company and all passengers whose baggage was transported by carriers in interstate commerce. This being the fact, we think the limitation of liability to $100 fixed the amount which the plaintiff could recover in this case, and there was error in affirming the recovery for the full value of the baggage, in the absence . of a declaration of such value and payment of the additional amount required to secure liability in the greater sum. ’ ’

Plaintiff could therefore if the rate fixed was excessive (and herein lay his recourse in such contingency), have paid the full sum demanded, and then have recovered back any unreasonable excess charge by a reparation order. [Great Northern Ry. v. O’Connor, 232 U. S. l. c. 515.] In the case last above cited, at page 515, it was said:

“The shipper had the right, by appropriate proceedings, to attack the rate or the classification and if either or both were held to be unreasonable could secure appropriate relief either by Reparation Order, or by suit in court, after such finding of unreasonableness. But so long as the tariff rate, based on value, remained operative, it was binding upon the shipper and carrier alike and was to be enforced by the courts in fixing the rights and liabilities of the parties. The tariffs are filed with the Commission and are open to inspection at every station. In view of the multitude of transactions, it is not necessary that there shall be an inquiry as to each article or a distinct agreement as to the value of each shipment. If no value is stated the tariff rate applicable to such a state of facts applies. If, on the other hand, there are alternative rates based on value and the shipper names a value to secure the lower rate, the carrier, in the absence of something to show rebating' or false billing, is entitled to collect the rate which applies to goods of that class, and if sued for their loss it is liable only for the loss of what the shipper had declared them to be in class and value. ’ ’

Going back as a basis for what we shall next say, to the evidence upon which we base the first of the above conceded facts, we think it fairly manifest that the minds of Nichols, the agent at St. Joseph of defendant, and that of plaintiff never met in truth, upon the matter of value. It is plain that the plaintiff had in mind the value of the horse as a basis of rate of carriage; while Nichols, it is fairly obvious, referred to weight and to the fact that “a horse is a horse” without regard to whether such horse weighed 2300 pounds (as did a Percheron horse shipped formerly by plaintiff), or only 900 pounds, as did the little mare shipped here with the horse in controversy, and that any horse whether large or small, was arbitrarily held to weigh but 1000 pounds. "We say so much here, and bear with us' this thought, for use when we shall come to consider, whether there was present in the mind of either plaintiff or defendant’s agent a conscious intent to undervalue, and to connive at undervaluation, in order to fraudulently evade the published tariff rates, and thus give a preferential rate or rebate to plaintiff, and thereby to take an unlawful advantage of competitive carriers.

IY. It is urgently insisted that Pfingst under the facts upon this record, had.no authority to bind plaintiff. We do not think that upon these facts, even at common law, this position of plaintiff is tenable. Certainly defendant is not bound by the private instructions, if any, given to Pfingst by the plaintiff. [Great Northern Ry. v. O’Connor, 232 U. S. l. c. 514; Int. Com. Comm. v. Railroad, 220 U. S. 235; McElvain v. Railroad, 151 Mo. App. 126.] The instructions which are shown upon the record do not negative the existence of an agency broad enough to bind plaintiff at common law. But be this as may be, the construction which has been placed upon the Interstate Commerce Acts and the reciprocal notice and duties arising and comported thereby and which affect both shipper and carrier, make Pfingst the agent with power under this law to bind and loose plaintiff as to the shipment of this horse. This is so because pursuant to the provisions of the Interstate Commerce Act [Sec. 15, Act June 29, 1906', 34 Stat. 584], the carrier is permitted to make and file reasonable regulations touching the manner in which shipments are permitted to be made. These regulations, when fair and reasonable, and when filed and in force, because of such fairness and reasonableness, or because no ruling has been made upon such fairness and reasonableness (Boston & Maine Railroad v. Hooker, supra,) are enforceable. Here defendant had made and filed with its tariffs and as a workable part thereof this regulation, viz.:

Live Stock:
Any charge for valuation will be assessed according to Rule 10 (i), page 4.
Receive only upon the execution of the company’s live stock contract, except that live stock contracts need not be taken for shipment of calves and sheep for market, which may be accepted on the ordinary freight receipt, subject to owner’s risk of injury, death or escape.
Live Stock — In carloads, estimate at 10,000 lbs., subject to rules provided above.
Horses — Estimate single animal at 1,000 lbs., minimum $25 (See Rule 12); tbe minimum applies to each borse- in the shipment, but the'total charge must not exceed the carload rate.................................................3 t Mdse.

If defendant had the right to make different rates baseduponthevalue of the horse transported, and some higher than others in proportion to the risk — and as •to this, in the light of the authorities, there can be no two diverse views — then indubitably it had the right to prescribe such regulations as were necessary to enforce these different rates and make them uniformly effective. It is fairly obvious that absent a contract in writing it would be next to impossible to carry out the provisions as to a tariff rate based upon the value of the property transported. Since defendant had filed and published its tariffs together with the requirement quoted above herein as to the execution of the company’s live stock contract as a condition precedent to the acceptance of live stock for shipment, notice of the fact that before Pfingst could ship the horses from Boston he would be required to execute a contract in accordance with the filed tariffs, must be imputed to plaintiff. [Boston & Maine Railroad v. Hooker, supra.] In the case last above cited, there was a regulation contained in the filed and published passenger tariff sheets that in the absence of a declaration of value in excess of $100 for baggage carried upon a passenger’s ticket and the payment by the passenger on the excess of such value at the rate of fifteen cents for each one hundred dollars thereof, no greater sum than $100 for the loss of any such baggage could be recovered. In stating the position of the defendant in that case the court sets it forth thus boldly:

“The precise position of the defendant is that as the limitation of liability for baggage was filed and posted as a part of its schedules for passenger tariff, the limitation thereby became and was an essential part of its rate, from which under the interstate commerco law it could not deviate, and by which the plaintiff was bound, regardless of her knowledge of or assent to it. If the premise is sound, then the conclusion follows, for the public are held inexorably to the rate published, regardless of knowledge, assent or even misrepresentation. [Gulf, Colorado & Santa Fe Railway v. Hefley, 158 U. S. 98; Texas & Pacific Railway v. Mugg, 202 U. S. 242; Melody v. Great Northern Railway, 25 S. D. 606.] ”

Held, nevertheless, that the limitation of recovery at the sum of $100 only was valid and ought to be, and the same was upheld.

Much in point also is the case of Atchison, etc., Ry. Co. v. Robinson, 233 U. S. l. c. 180, where, in an action like this based upon an oral contract, but defended upon a written live stock contract) it was said:

“To give to the oral agreement upon which the suit was brought, the prevailing effect allowed in this case by the charge in the tidal court, affirmed by the judgment of the Supreme Court of the State, would be to allow a special contract to have binding force and effect though made in. violation of the filed schedules which were to be equally observed by the shipper and carrier. If oral agreements of this character can be sustained then the door is open to all manner of special contracts, departing from the schedules and rates, filed with the Commission. [Kansas City Southern Ry. Co. v. Carl, 227 U. S. l. c. 652.] To maintain the supremacy of such oral agreements would defeat the primary purposes of the Interstate Commerce Act, so often affirmed in the .decisions of this court, which are to require equal treatment of all shippers and the charging of but one rate to all, and that the one filed as-required by the act. ’ ’

Indeed, so far as the record of the facts before us discloses there is not the faintest suggestion in plaintiff’s instructions to his friend and agent Pfingst, that the plaintiff did not expect said Pfingst to comply with the regulations contained in the published tariff sheets of defendant, and to execute such requisite documents as defendant’s filed and published regulations and tariff sheets reasonably provided for. For “so long as the tariff rate based on value, remained operative it was binding upon the shipper and carrier alike.” [Great Northern Ry. Co. v. O’Connor, 232 U. S. 508.]

In fact, plaintiff under the provisions of the Interstate Commerce Act could not have legally made with Nichols, the defendant’s agent, an oral contract for the carriage of the horse upon the basis of value he says he declared to Nichols, for the sum of $135, which he says he contracted to pay to defendant. This is so for the reason that defendant by its published tariff sheets filed with the Interstate Commerce Commission, held out to all shippers that its rate for the carriage of a horse by express from Boston to St. Joseph was $135 plus 12 per cent additional for all excess in value of such horse above $75. If it gave to plaintiff a lower rate, without requiring plaintiff to obtain such lower rate in the same manner all others .of the shipping public obtained it, to-wit, by executing a limited liability live stock contract, it manifestly gave plaintiff thereby a forbidden preferential rate or rebate. Apposite to this very point, as well as upon another one here of vital importance, it was said in the case of Kansas City Southern Ry. Co. v. Carl, 227 U. S. l. c. 652:

“The valuation declared or agreed upon as evidenced by the contract of shipment upon which the published tariff rate is applied, must be conclusive in an action to recover for loss or damage a greater sum. In saying this we lay on one side, as not here involved, every question which might arise when it is shown that the carrier intentionally connived with the shipper to -give him an illegal rate, thereby causing a discrimination or preference forbidden by the positive terms of the act of Congress and made punishable as a crime. To permit such a declared valuation to be overthrown by evidence aliunde the contract, for the purpose of enabling the shipper to obtain a recovery in a suit for loss or damage in excess of the maximum valuation thus fixed, would both encourage and reward undervaluations and bring about preferences and discriminations forbidden by the law. Such a result would neither be just nor conducive to sound morals or wise policies. The valuation the shipper declares determines the legal rate where there are two rates based upon valuation. ITe must take notice of the rate applicable, and actual want of knowledge is no excuse. The rate, when made out and filed, is notice, and its effect is not lost, although it is not actually posted in the station. [Texas & Pacific Railway v. Mugg, 202 U. S. 242; Chicago & A. Railway v. Kirby, 225 U. S. 155.]”

So, we think it fairly follows that where in an interstate shipment an oral contract is made, the terms of which are forbidden by a law which the shipper and the carrier must both notice, and where a published interstate rate is filed containing regulations prescribing conditions precedent to the acceptance of goods for carriage, he who delivers such goods at the owner’s request for shipment, must be held to be authorized by the owner to comply with the law and with all reasonable published regulations as to the terms and conditions of shipment, and that the shipper will not be heard to assert the contrary.

The case of Great Northern Ry. v. O’Connor, 232 U. S. 508, presents a question which is similar to that here involved touching whether Pfingst had authority to bind plaintiff by his execution of the live stock contract under consideration. It was held nevertheless (syllabus), following the earlier case of Int. Com. Comm. v. Delaware, L. & W. Railroad Co., 226 U. S. 235, “that carriers are not concerned with questions of title, but must treat the forwarder as shipper and charge the applicable rates,” and that this rule “applies also to accepting the forwarder’s classification and valuation, without regard to any private instructions given by the actual shipper to the forwarder.” So, we rule this point against the plaintiff.

V. Which brings us to the question of whether, since the agent of defendant at St. Joseph and its agent at Boston both knew from information obtained respectively from plaintiff and from Pfingst that the horse’s value largely exceeded that dee^are(^ the ^ve stock ' contract, such knowledge of itself made the limited-liability contract a violation of the Interstate Commerce Act, and thereby made it liable to pay any actual value of the horse which the proof might allow. We do not think this result follows in the absence of collusion between plaintiff and defendant’s agents to declare a false value for the purpose of securing a quasi-rebate or preferential rate. We are not passing upon the question whether even in the presence of such collusion between defendant and plaintiff, a recovery could be had, or whether an unlawful conspiracy to defeat the rates published would not as to all participants so far tinge the entire transaction with fraud as to prevent a recovery of the true value; in short, would leave both plaintiff and defendant where it found them. The latter point cannot be gotten into this case upon the pleadings or points raised; so we will leave it till a case comes up with such collusion well lodged therein.

It seems so obvious as to be self-évident, that the mere fact that defendant’s agents knew at the time the rate was made that the actual value of the horse was in excess of the declared value could not so far overthrow the fairness, openness, justness and reasonableness of the contract limiting liability to such declared value as to render such contract void. In fact, the frank knowledge, ordinarily, of the existence of two rates and of a real and a fictional (i. e., the actual and the declared) value of the goods offered for shipment must be mutually known by the shipper and the carrier, so that the privilege of taking the lower or the higher rate may be freely offered to the shipper in the fair and open light of all of the facts. Any other view would have the effect to destroy instantly the entire scheme of a limited-liability shipping contract, and none such could longer exist under the provisions of the Interstate Commerce Act. On the contrary there does not exist, in our view, any valid reason based upon any provision or construction of the Interstate Commerce Act why the shipper and the carrier may not for their mutual advantage contract to share a contingent loss, in.consideration of a present lower rate; a fortiori since the like course and the like rate is open to any and all shippers, so that such a rate can therefore in no view constitute a preferential rate or a rebate. [Pierce Co. v. Wells, Fargo & Co., infra.] Indeed, this identical certain knowledge on the part of the carrier’s agent of the actual value of the article shipped was present in the very late case of George N. Pierce Co. v. Wells Fargo & Co., 236 U. S. 278. There the shipment consisted of a car load of automobiles. These were released by a limited-liability contract at a .valuation of $50 each. The matter of valuation was discussed at length by the shipper with the agent of defendant and the low valuation was explained upon the theory, erroneous as. it subsequently proved, that the automobiles were insured. That case, the very last utterance of the Supreme Court upon this point, is upon the fact as to certain information in the defendant of the actual value of the g'oods, a far stronger case than the instant one. Yet no emphasis was laid upon the fact of such knowledge, as varying the rights or obligations of the parties in any wise, but on the contrary the court, apposite to this very question, said :•

“In the O’Connor case, 232 U. S. 508, and the Robinson case, 233 U. S. 173, above cited, the doctrine of the conclnsiveness of the filed rates was said to have no application to attempted fraudulent acts or false billing. We do not perceive how this doctrine can be applicable to the present case. As the state of facts shows, the transaction was open and above board, the character of the goods was plainly disclosed and known to both parties, and the rate paid was not attempted to be fixed upon actual value alone, but upon a value which the shipper was competent to agree to, in consideration of the lower rate. Indeed, if a recovery for full value was to be permitted in this case, the shipper itself would obtain an undue advantage in recovering such value, when it had .purposely and intentionally taken the risk of less responsibility from the carrier, for a lower rate. Such result would bring about the the very favoritism which it is the purpose of the- Commerce Act to avoid. ’ ’

But we need not pursue this matter further at the expense of space. Whatever of authority may be lacking for the views held herein will be found in the several late cases which we cite. Those interested may read' them there.

It follows that the amount which plaintiff may recover is limited by the declaration of value made in the shipping contract, and therefore that the judgment herein should be reversed and remanded to be retried in accordance with the views expressed herein.

All concur, except Woodson, G. J., and Blair, J., not sitting.


source: Caselaw Access Project

author: "WOODSON, J.

license: Public Domain

text:
    LOUE M. BROWN v. JOHN W. McKOWN, JOEL O. MEANS and MARTHA ANN MEANS, Appellants.
    Division One,
    June 1, 1915.

    1. FRAUDULENT CONVEYANCE: Equity Suit to Set Aside. Suits in equity to set aside alleged fraudulent conveyances can only be maintained by judgment creditors who have exhausted their legal remedies, and after the return of execution,, against the insolvent debtor, not satisfied for want of property upon which to levy it.
    2. -: -: Not Saved by Attachment Against Nonresident Without Bond. A suit in equity to set aside an alleged fraudulent conveyance, brought by a claimant who has not reduced his demand to a judgment against a nonresident, cannot be further maintained under section 2344, Revised Statutes 1909, after the nonresident defendant has entered his appearance to a writ of attachment, previously sued out without bond, in aid of said equity suit, said attachment being thereby dissolved as of course. The amendment of 1907 to section 2298, Revised Statutes 1909, authorizes suits by attachment against nonresidents without bond, but it was not designed to broaden the scope of section 2344, or to otherwise alter the existing law, except to permit certain poor persons, having valid claims and who could not give bond, to compel such nonresident debtors to come into court; and the amendment provided that such purpose having been accomplished, .the attachment, upon the entrance of his appearance by the nonresident defendant, was to be dissolved of course.
    Appeal from Ray Circuit Court. — Eon. Francis E. Trimble, Judge.
    Reversed.

      J. L. Farris, Jr., & Sons for appellants.
    (1) The attachment suit was in aid and ancillary to the main suit, and when this was dissolved there was nothing further to support the present suit which was in aid of the attachment suit. (2) The court erred in not sustaining appellants’ motion to abate and dismiss this proceeding. (3) Plaintiff could not maintain "this suit in equity until he first exhausted his remedies at law. Implement Co. v. Jones, 143 Mo. 278. This is not a suit under Sec. 2344, E. S. 1909, formerly Sec. 571, E. S. 18891, for this suit was brought on December 1, 1909, and was in aid of the attachment suit instituted on October 18, 1909, which attachment suit, in turn, was instituted after the filing of the petition by respondent against Joel 0. Means, one of the defendants, on September 15, 1909. The attachment suit was based on Sec. 2306, E. S. 1909, was-without bond, and was dissolved upon the term following, viz., February term, 1910, upon the entrance of defendant’s personal appearance, as provided by Sec. 2298, E. S. 1909. Consequently, the petition upon which plaintiff now relies for recovery, after the abatement of the attachment suit, was not authorized by Sec. 2344, E. S. 1909, under which respondent claimed the right to institute and maintain the suit here at bar. (4) The judgment for alimony obtained in Kansas by respondent against Joel O. Means, is not such a judgment as contemplated by our laws. A foreign judgment is in no sense of the word, a judgment within the meaning of our law. It refers to domestic judgments. A foreign judgment is merely a cause of action forming the basis of the suit, and does not rise to the dignity of a judgment of the courts of this State.

      George W. Littiek and Lavelock & Kirkpatrick for respondent.
    (1) The attachment suit of respondent against Joel O. Means was legally commenced and pending when this equitable action was instituted by her to set ■ aside the alleged fraudulent conveyance of the attached property by Joel 0. Means to John W. McKown, and, while her attachment suit was pending against Joel 0. Means, she commenced this equitable action to set aside said alleged fraudulent conveyance in aid of her attachment! The statute by express provisions authorized this proceeding, and neither the abatement of the attachment nor the exhaustion thereof would prevent the further prosecution of such equitable remedy. Sees. 2294, 2306, 2344, R. S. 1909; Implement Co. v. Jones, 143 Mo. 278; Davidson v. Dockery, 179 Mo. 694. (2) It is true, according to the general rule, suits in equity to set aside alleged fraudulent conveyances, can only be maintained by judgment creditors who have exhausted their legal remedies, and after the return non est ol execution and against insolvent debtors, but such suits by attaching creditors constitute an exception to this general rule, expressly made so by legislative provision. Sec! '2344, R. S. 1909 ; Implement Co. v. Jones, 143 Mo. 278; Davidson v. Dockery, 179 Mo. 694.

      Note.- — Opinion filed March 2, 1915; opinion modified and motion for rehearing overruled June 1, 1915.

   "WOODSON, J.

This suit was instituted in the circuit court of Ray county, by the plaintiff against the defendants, to set aside and have certain deeds conveying certain lands described therein, declared null and void, because, as charged, they were executed in fraud of creditors, especially this plaintiff.

The trial resulted in a decree in favor of the plaintiff, and after moving unsuccessfully for a new trial the defendants timely and properly appealed the cause to this court.

The facts, while somewhat complicated, yet most of them undisputed, are as follows:

Mrs. Loue M. Brown, the plaintiff, the present wife of Clinton Brown, formerly the wife of Joel 0. Means, of Wyandotte county, Kansas, on September 15, 1909, instituted a suit in the circuit court of Ray county, Missouri, against said Means, to recover about $1,300- and costs due her, on a judgment for that sum, rendered November 21, 1906, by tbe district court of said Wyandotte county, for alimony in a case brought by her against him for divorce and alimony.

Summons was duly issued for said Means by tbe clerk of tbe circuit court of Eay county, and delivered to tbe sheriff of said county for service. Upon tbe return day of tbe summons tbe sheriff made a return not served, because Means was not found in bis county, etc.

Thereafter, upon October 18, 19091, tbe plaintiff therein, under section 2298, Eevised Statutes 1909, without bond, sued out a writ of attachment in said cause, and bad it levied upon' fifty acres of real estate situated in said Eay county, to be hereinafter more particularly described.

On tbe same day an affidavit of nonresidence of said Means was filed in tbe cause by tbe plaintiff and thereupon an order of publication was based, notifying him of tbe institution and pendency of said suit, etc., and requiring him to appear at tbe next February term, 1910, of said court, and to answer, etc.

Upon tbe levy of said writ of attachment upon tbe real estate in controversy and tbe publication of said notice, tbe defendant, Joel 0. Means, entered bis personal appearance in tbe original suit, in aid of which said writ of attachment bad been sued out, and filed answer to tbe merits thereof, and in obedience to tbe mandate of said section 2298, said attachment was, at tbe said February term, 1910, of said court, dissolved. That part of said statute, in so far as is here material, reads as follows:

“Provided that when any writ of attachment has issued against a nonresident and the plaintiff has given no bond, tbe attachment shall be dissolved as of course upon tbe defendant entering bis appearance and filing answer to tbe merits of tbe case.”

On the 16th day of May, 1910, a trial was had of said cause, which resulted in a judgment in favor of the plaintiff and against the defendant for the sum of $1594.02, as her debt, damages and costs. This judgment was never appealed from and is still in full force and effect.

On December 1, 1909, the plaintiff in said cause filed this, a second suit, in said circuit court of Ray county, under authority of section 2344, Revised Statutes 1909‘, which is called the suit in equity, seeking to have the deeds .before mentioned set aside for fraud, etc. Thereafter, by leave of court, the plaintiff filed therein the following amended petition:

“Plaintiff in this her first amended petition,'filed by leave of court, for cause of action and grounds for equitable relief against the defendants, complains and states:

‘ ‘ That on September 17, 1906, the plaintiff, whose name then was Loue M. Means, commenced a suit in the district court of "Wyandotte county, Kansas, against the defendant, Joel 0. Means, by the name of J. O. Means, and who was and is the same person as Joel O. Means, for the purpose of obtaining a judgment and decree of said district court divorcing the plaintiff from the bonds of matrimony theretofore contracted with the defendant, Joel O. Means, to obtain the care, custody and control of the minor children of said plaintiff and defendant, and for alimony and costs of suit.

“That the district court of Wyandotte county, Kansas, then was and now is a court of general jurisdiction, and by reason of the institution of the suit aforesaid the district court of said Wyandotte county had and obtained jurisdiction of the defendant and the subject-matter of said action; that jurisdiction of the person of the defendant, Joel 0. Means, was had and obtained in said action by process regularly issued from said district court and the same being duly and personally served on said Joel 0. Means according to the statutes in such eases made and provided, thereby notifying and summoning said defendant, Joel 0. Means, to be and appeár in said court on a certain day therein named, to-wit, October 7, 1907, and to answer the petition of the plaintiff in said cause; that the defendant, Joel O. Means, although legally and personally served with process in said cause according to and as provided by the statutes of the State of Kansas, failed, neglected and refused to appear before said court in said cause and in obedience to the writ of' summons issued and so directed to and served upon him as aforesaid, but that he made default therein and .left said action wholly undefended; that such proceedings were thereafter had in said cause, that on November 21,1906, a judgment and decree for divorce as prayed for in the petition of the plaintiff was granted and rendered by said district court in favor of the plaintiff and against the defendant, Joel O'. Means, divorcing the plaintiff from the bonds of matrimony theretofore contracted with the defendant, Joel 0. Means, awarding to the plaintiff the care, custody and control of the minor children of the plaintiff and the defendant, and adjudging to the plaintiff and against the defendant alimony in gross in the sum of $1200, and adjudging to the plaintiff the further sum of $100 as and for her attorney’s fee in said cause and for costs of said suit, taxed at the sum of $35, which was paid by the plaintiff, making a judgment in favor of the plaintiff and agent the defendant, Joel O. Means, including the attorney’s fee and cost so paid by plaintiff, amounting in the aggregate to $1325.

“That thereafter, to-wit, on January 2, 1907, and November 22, 1907, the plaintiff caused two several executions to be issued on the judgment and decree aforesaid from the office of the district court of said Wyandotte county, both of which were returned unsatisfied, for the reason no property or effects of the defendant, Joel 0. Means, were found on which to levy the same.

“That thereafter, to-wit, on September 15, 1909, the plaintiff, who after the institution of the aforementioned suit intermarried with one Clinton Brown, commenced a civil action in the circuit court of Ray county, Missouri, on the judgment rendered in her favor by the district court of Wyandotte county, Kansas, against the defendant Joel 0. Means, on November 21, 1906, for the said sum of $1325, to enforce the collection of the same, no part thereof having been paid, by filing in the office of the clerk of the circuit court of said Ray county her petition and causing process to be issued thereohreturnable to the October term, 1909, of the circuit court of said Ray county; that thereafter, to-wit, on October 18,1909, in aid of said civil suit commenced by the plaintiff against the defendant, Joel O. Means, in the circuit court of said Ray county, on September 15,1909, the plaintiff filed in said court her affidavit for attachment against the property of the defendant, Joel O. Means, and thereupon a writ of attachment was ordered and issued from said circuit court in said cause directed and delivered to the sheriff of .said Ray county, commanding him to attach in said cause the lands, tenements, goods, chattels and evidences of debt of the defendant, Joel 0. Means, found in said Ray county, or so much thereof, as would be sufficient to satisfy the claims and demands of the plaintiff against the defendant, Joel 0. Means, together with interest thereon and costs of suit; and, thereafter, on the same day, the sheriff of said Ray county seized, levied upon and attachedasthepropertyof said defendant, Joel 0. Means, the following described real estate, lying and being in said Ray county, to-wit, fifty acres off of the north end of the east half of the northeast quarter of section eleven, in township fifty three of range twenty nine, which was and is the property and estate of the defendant, Joel 0. Means; and on the same day the said sheriff filed in the office of the recorder of deeds within and for said Ray county an abstract of said attachment, showing the names of the parties to said suit, the amount of the debt sued for, the date of the levy and the description of the land attached as required by the statutes in such cases made and provided.

“That on October 16,19091, after the institution of said suit by the plaintiff against the defendant, Joel 0. Means, in the circuit court of said Ray county, on September 15, 1909, on said judgment rendered in the district court of Wyandotte county, Kansas, on November 21, 1906, in favor of the plaintiff and against the defendant; and, after the issuance of process by the clerk of the circuit court of said Ray county on said suit therein filed, the defendant, Joel 0. Means, with full knowledge of the pendency of said suit and the indebtedness therein evidenced, and with the full purpose and intention of hindering, delaying and defrauding his creditors, especially this plaintiff, pretended to sell and convey the above described real estate to his codefendant, John W. McKown, and did on said October 16, 1909, make, execute and deliver to his said codefendant, John W. McKown, a deed in common form containing the usual covenants of warranty, describing and purporting to convey the real estate above described for the pretended and recited consideration of $2500, but in truth and in fact said pretended conveyance was so made without any consideration whatever being actually paid therefor; that neither the sum of $2500, so recited as the consideration aforesaid in said deed, nor any other consideration whatever was actually paid therefor; that said defendant, John W. McKown, at the time, and prior to the execution of said deed to him by his codefendant, Joel O. Means, knew of the pendency of said suit in the circuit court of said Ray county on the judgment rendered in favor of the plaintiff in the district court of Wyandotte county, Kansas, against the defendant, Joel O. Means, and to prevent and defeat the collection thereof by the plaintiff, the defendant, John W. McKown, then and there participated in, conspired and confederated with his codefendant, Joel 0. Means, for the purpose and with the intention of aiding and assisting and abetting him, in hindering, delaying and defeating this plaintiff in the collection of her said judgment by the fraudulent means and methods aforesaid; that the defendant, John W. McKown, entered into and participated in the negotiation aforesaid and received said deed with the full knowledge of the fraudulent purpose of his codefendant, Joel 0. Means, and for the purpose of aiding, abetting and assisting him by the fraudulent means and methods aforesaid in hindering, delaying and defrauding the creditors of said Joel O'. Means, and especially this plaintiff.

“That the deed of October 16, 1909, whereby said Joel O. Means pretended to convey the real .estate aforesaid to the defendant John W. McKown, for the recited consideration of $2500, was and is a voluntary conveyance made without any valuable consideration whatever moving or passing from the grantee therein named to said grantor, and without anything of value being actually paid thereror, and the same having been made and entered into by and between said defendants for the fraudulent purpose aforesaid, and the said John W. McKown then and there being an active participant in the fraudulent purposes and intentions of his codefendant, Joel O. Means, acquired no title or interest whatever in or to said lands as against this plaintiff; that the defendant, John W. McKown, was not and is not a purchaser of said real estate for value and in good faith, or such purchaser of any right, title or interest whatever therein; and the plaintiff avers and charges the fact to be that said transaction was and is a cheat and fraud on the rights of the plaintiff, and was done and made for the purpose and with the intention of defrauding and depriving, her of her just rights in the premises, and that the defendant, John W. Mc-Kown, acquired no rights in said premises which he may hold for himself or another under or by virtue of said deed against or prejudicial to the rights of this plaintiff.

“That on October 18,1909, the defendant, John W. McKown, filed or caused to be filed said deed for record in the recorder’s office of said Eay county, and the same is now of record therein in Book 116 at page 512 of the deed records of said office, a copy of which deed is filed with the original petition in .this cause, marked exhibit ‘ A’ and made a part of said petition, and is here referred to and made a part hereof.

“That the defendant Joel 0. Means is a nonresident of the State of Missouri; that the issuance of an execution on the judgment rendered by the circuit court of said Eay county in favor of the plaintiff and against the defendant, Joel 0. Means, on May 16,1910, would be useless, as said defendant, Joel 0. Means, has no property or estate subject to execution and nothing would or could be realized thereby or thereon-; that the plaintiff will be unable to collect or realize on said indebtedness and judgment, or any part thereof, unless the deed aforesaid from the defendant, Joel 0. Means, to his codefendant, John W. McKown, be set aside and the real estate therein described and heretofore attached, is subject to said indebtedness and. judgment; that the rights of the plaintiff would be prejudiced or defeated by the delay incident .thereto caused by the time necessarily consumed for the issuance and return of an execution on said judgment, and the rights of the plaintiff in the premises and to said property would be further complicated and endangered by and on account of such delay; that the plaintiff has no adequate remedy at law, and in truth and in fact, is remediless in the premises without the interposition of a court of equity to set aside the deed aforesaid and subject said real estate to her claim and judgment, because said Means has no other property, and by reason of the premises aforesaid and the alleged acts and doings of the defendants, a right of action hath accrued to her and exists in her behalf for relief to invoke the aid of a court of equity in setting aside the deed aforesaid and subjecting the property therein described to the indebtedness and judgment of the plaintiff.

“Wherefore, the plaintiff prays the court that the deed dated October 16, 1909, from Joel 0. Means and wife, to John W. McKown, filed for record in the recorder’s office of Ray county on October 18, 1909,- and recorded in Book 116-, page 512, of the deed records of said county, describing and purporting to convey fifty acres off of the north end of the east half of^ the northeast quarter of section eleven, in township fifty three of range twenty nine in said Ray county, be by this court adjudged and declared fraudulent and void as to this plaintiff, and that the same be set aside and for naught held, and that it be adjudged and declared that neither the said John W. McKown nor Martha Ann Means shall take or hold any right, title or interest in or to said real estate by reason of said deed-o'r otherwise, and that they be precluded and barred from setting up any claim to said premises under or by said deed, and that the said John W. McKown be divested of any and all claim to said real estate under said-deed, and that said real estate be subjected to and sold by order of court to satisfy and pay the indebtedness- and judgment of the plaintiff, and for all proper relief in the premises.”

The defendant McKown filed a separate answer, alleging in substance that he had no personal interest in the subject-matter of the suit, but was acting in all the matters mentioned in the pleading and evidence as trustee for his sister, Martha Ann Means, who had entered her appearance in the cause as a party defendant in the amended petition mentioned.

The separate answer of Martha Ann Means (with formal parts omitted) was as follows:

“Now comes the defendant Martha Ann Means, and for her separate answer to the amended petition of plaintiff says that on the - day of -, 1909, the plaintiff here instituted a suit against defendant Joel 0. Means in the circuit court of Ray county, Missouri, by ordinary summons, returnable to the October term, 1909, of the said court: That afterwards, at the October term, 1909, of said court, said plaintiff sued out a writ of attachment, returnable to the February term, 1910, of said court, against said Joel O. Means, in aid of said original suit, and under the same did cause the land in controversy to be attached and levied upon by the shériff of Ray county, Missouri, under said attachment proceedings as the property of said Joel O. Means; that thereafterwards, on the-day of-, 1909, .said plaintiff did institute this suit against John W. McKown .and Joel O. Means, to set aside the deed mentioned in the petition therein, returnable to the February term, 1910, of said court, alleging that the same had been made for the purpose of hindering, delaying and defrauding plaintiff in the collection of her alleged indebtedness sued on in said original suit; that in the petition therein plaintiff sued only as an attaching creditor by reason of the attachment herein-before referred to; that at the February term, 1910, of said circuit court said attachment suit so instituted by the plaintiff herein was, by the court, quashed, dissolved and abated. This defendant, Martha Ann Means, therefore says that by reason of the premises the plaintiff ceased to be an attaching creditor, and thereafter had and has no right to further prosecute this action, and said facts are hereby pleaded as a bar to the further prosecution of this suit.

“For a further and additional defense herein this defendant, Martha Ann Means, says that on the-day of-, 19 — , she was single and unmarried; that on said date said Joel O'. Means did ask this defendant to become his wife and did promise her the snm of two thousand dollars in money; that in consideration of and in reliance upon said promise of marriage, and in reliance on said promise to pay said money as aforesaid, this defendant did on the - day of -, 19 — , marry said Joel 0. Means and from said date up to the present she has been and now is the wife of said Joel 0. Means; that pursuant to said promise said Joel O. Means did pay and deliver to this defendant the sum of two thousand dollars; that thereafter without the written assent of this defendant, her husband, the said Joel 0. Means, did take said money and the proceeds thereof and invest the same in the real estate in controversy, with the understanding and agreement that the title thereto should be taken in her name; that she supposed the title to said property had been taken in her name and did not learn to the contrary until the - day of-, 1909; that she requested the said Joel O. Means to transfer the title to said lands to her and he frequently promised to so do, but did not do so until the day of execution of the deed to John W. McKown at the time mentioned in plaintiff’s petition; that said Joel 0. Means and this defendant, made, executed and delivered to said John W. McKown the deed in question for the sole purpose of conveying the title of said land through said McKown to this defendant, Martha Ann Means, with the agreement and understanding that said McKown should thereafter convey said land to this defendant; that pursuant to said arrangement and understanding this defendant and her husband did make, execute and deliver to said McKown the deed mentioned in plaintiff’s petition as being recorded in Book 116 at page 512 in the recorder’s office of Ray county, Missouri; that said John W. McKown accepted said deed for said purpose only and pursuant thereto did thereafter, to-wit, on the-day of --, 191 — , make, execute and deliver to this defendant a deed conveying the same lands described in the deed aforesaid.

“This defendant says that she entered into the marriage relation with the defendant, Joel 0. Means, in good faith; that at the time of the promise of the marriage, as aforesaid, and of the promise to pay said money in consideration of said marriage as aforesaid she entered into said arrangement and agreement in good faith, without knowing that said Joel 0. Means was indebted to plaintiff in any sum whatever, or that he was indebted to any one in any sum whatever; that at the time of the marriage, aforesaid, she was not aware that said Joel 0. Means was indebted in any sum whatever; that at the time said Joel 0. Means paid her the money aforesaid in consideration of said marriage, this defendant did not know that said Joel O. Means was indebted to anyone in any sum whatever, nor did she at any of said.times have reason to believe he was. indebted to any one.

‘ ‘ This defendant denies that the deed made by said Joel 0. Means to John W. McKown, as set forth in plaintiff’s petition, was made for the purpose of hindering, delaying or defrauding the creditors of said Joel 0. Means, or any of them, in the collection of their debts, and denies that said John W. McKown participated therein for any fraudulent purpose, but that all that said John W. McKown did in the premises was in the utmost good fáith, and for the purpose herein-' before mentioned; that the deed made from said John W. McKown to this defendant, Martha Ann Means, was not made for the purpose of hindering, delaying or defrauding any of the creditors of the said'Joel 0. Means in the collection of their debts, or any parts thereof.

“This defendant, therefore, says that said Joel 0. Means, prior to his conveyance to said John W. Mc-Kown, as aforesaid, only held said property in trust for this defendant; that after the making of said deed to said John W. McKown he then held said land, in trust for this defendant, and that in the making of both of said deeds the said grantors therein were not conveying the same in fraud of anyone, hut they were only doing what, in law, equity and good conscience they ought to do, and the same were made solely for the purpose of executing the trust resulting as aforesaid in favor of this defendant.”

The reply was a general denial.

Counsel for appellants also filed the following motion to dismiss the cause, the formal parts omitted:

“Now comes the defendant John W. McKown and represents and shows to the court that on the-day of -, 1909, the plaintiff herein instituted a suit against one Joel 0. Means, in the circuit court of Ray county, Missouri, by ordinary summons, returnable to the October term of said court; that afterwards, at the October term, 1909, of said court, said plaintiff sued out a writ of attachment, returnable to the February term, 1910, against said Joel 0. Means, in aid of said original suit, and under the same did cause the land in controversy to he attached and levied upon by the sheriff of Ray county, Missouri, under said attachment proceedings, as the property of said Joel 0. Means; that thereafter, on the - day of -, 1909, said plaintiff did institute this suit against Joel 0. Means and John W. McKown, to set aside the deed mentioned in the petition herein, returnable- to the February term, 1910, of said court, alleging that the same had been made for the purpose of hindering, delaying and defrauding plaintiff in the collection of her alleged indebtedness, sued on in said original suit; that in the petition herein, plaintiff sues only as an attaching creditor by reason of the attachment hereinbefore referred to.

“The defendant John "W. McKown further represents and shows to the court that at the February term, 1910, of said circuit court of Ray county, Missouri, said attachment suit, so instituted by plaintiff herein, was quashed, dissolved and abated.

“Wherefore, this defendant, John W. McKown, says that thereupon upon the dissolution of said attachment, plaintiff ceased to be an attaching creditor, and therefore had and has no right to further prosecute this action, and defendant prays that this suit may be dismissed and abated. ’ ’

This motion, after being duly considered by the court, was duly overruled, and appellants excepted.

If I correctly understand the effect of this motion to dismiss the suit, it is that suits in equity to set aside alleged fraudulent conveyances can only be maintained by judgment creditors who have exhausted their legal remedies, and after the return of execution not satisfied for want of property upon which to levy, and against insolvent debtors.

The existence of this general rule is not questioned "by counsel for respondent, but they rely upon an exception thereto which they express in the following 'language: “Such suits by attaching creditors constitute an exception to this general rule, expressly made .so by legislative provision.”

Their contention is that the lien plaintiff obtained upon the land in controversy by the attachment, procured without bond, previously mentioned, issued in pursuance to said section 2298, was sufficient to bring the case within both the letter and the spirit of section 2344, Revised Statutes 1909r, which provides as follows :

“Any attaching creditor may maintain an action for the purpose of setting aside any fraudulent conveyance, assignment, charge, lien or encumbrance of ■or upon any property attached in any action instituted by him; and where several attachments in favor of different plaintiffs are levied on the same property, all or any number of such plaintiffs may join in the same action for that purpose.”

In support of this contention we are cited to the cases of Implement Co. v. Jones, 143 Mo. 253, l. c. 278, and Davidson v. Dockery, 179 Mo. 687, l. c. 694.

While it is true this statute authorizes an attaching creditor to institute and maintain a creditor’s bill to set aside a fraudulent deed, that statute was never designed to apply to attachments issued without bond, as authorized by said section 2298, as I will now undertake to show.

While an attachment issued without bond, as was done in this case, under an amendment of 1907, may, under the strict letter thereof, be sufficient to authorize the institution and prosecution of a bill in equity, under section 2344, Revised Statutes 1909', to set aside a deed executed in fraud of creditors, such as this case is, yet when we consider the history of that amendment and the evil it was designed to remedy, it will be clearly seen that the Legislature did not intend thereby to authorize an equitable proceeding to set aside and cancel a deed executed in fraud of creditors, when the only claim the plaintiff has to support the proceeding was an attachment issued under said section 2298, without bond. 'If that is true, then anyone, claiming to have a demand against another for one cent, one dime or one dollar, or for any other sum, founded upon contract, or tort, could, in the first instance, institute and maintain a bill in equity to set aside a deed executed by the supposed debtor or tortfeasor before the complainant had established his claim, in any manner, save by the bold charge of indebtedness made in the bill.

The last section mentioned has been on the statute books of this State, with slight changes, almost from the organization of the State government, and has been carried through the various revisions, down to the year-1907, the year the amendment mentioned was made, which, as amended, is now section 2298; and said section 2344, authorizing proceedings of this character, was first enacted in I860 (Laws 1860, p. 3, sec. 2), and has. been brought forward without change through the various revisions from that time to the present, and is now section 2344, R. S. 1909'.

Prior to the amendment of 1907 no proceeding of any kind, either at law or in equity, could be maintained in the courts of this State, against an individual nonresident, except by a proceeding in rem or in a proceeding in the nature of rem, or by an attachment based upon affidavit and accompanied by bond as provided for by said section 2298, prior to its amendment. (In all of which, of course, notice was required to be given to the nonresident by publication.) This completed the jurisdiction of the court, it already having jurisdiction of the subject-matter of the suit, by virtue of the levy of the attachment.

And under that state of the law, even a proceeding to set aside a deed for having been executed in fraud of creditors, had to be based upon a judgment rendered by a court of competent jurisdiction of this State, or upon an attachment lien, based upon an affidavit and secured by an attachment bond.

Perhaps it may be useless to state that prior to and subsequent to the amendment of 1907, there were many individual nonresidents doing business in this State, who could not be sued on an ordinary claim, without attaching the property or by proceeding in equity, as in cases of rem.

From this it is seen that as the law then stood, no ordinary creditor, nor one who had a demand against an individual nonresident, growing out of tort, could sue him in a law case, except by attachment, issued upon affidavit and bond.

That condition of affairs leads to great injustice, and many hardships. For instance, I recall the facts which called forth and prompted the enactment of said amendment of 1907, which are substantially as' follows : Prior to that year, one of the great packing houses of St. Joseph, Missouri, the Hammond Packing Company, I believe was the name of it, was a copartnership, formed and existing between gentlemen residing in the States of Ohio, Illinois and Indiana, and was and had been, for years doing a general packing business at St. Joseph, under the style and firm name of the Hammond Packing Company. This company employed many men — a thousand perhaps, or more; and in the prosecution of that great business many of these employees, from time to time, sustained personal injuries.

The owners of the plant being nonresidents, the ordinary process of law could not be served upon them, and there being no other way of procuring service, except by attachment, the courts of justice were practically closed against all persons so injured, for the reason that they were laboring men, and as a rule, were without means and ability to give attachment bonds, under the law as it then existed.

So, I repeat, that under the law and the facts, as they then existed, justice was absolutely denied to practically all of those who were injured in that plant.

This injustice became so outrageous and burning, that Judge Charles H. Mayer, then in the Senate from St. Joseph, introduced the bill amending section 370, Revised Statutes 1899, authorizing suits to be brought by attachment against nonresident defendants without bond, with the proviso that the attachment should be dismissed upon the defendant entering his appearance. That bill was duly enacted into a law, and as before stated is now section 2298'.

This brief history of that amendment shows that it was the design of the Legislature to enable the poor and crippled to have their day in court, and to have their grievances heard and determined in a court of justice, which otherwise could not have been done, for the reasons stated. While this amendment was enacted for the benefit of the poor mentioned, yet it is sufficiently comprehensive to embrace all persons and classes who may have such grievances against a nonresident.

But the history of this piece of legislation not only discloses the purpose of its enactment, but also that it was not intended to broaden the scope of said section 2344, which was not in the mind of the Legislature, as before stated, and which was first enacted in 1860, and •remains upon the statute books to this day, without change. The purpose of this amendment is also made plain by the proviso attached to the end of said section 2298, which is to the effect that upon the entrance of the appearance of the nonresident, and the filing of an answer to the merits of the case, the attachment shall, as a matter of course, be dissolved.

If it was the design of the Legislature to broaden the scope of section 2344, so as to embrace this class of cases, which is in the nature of a proceeding in rem, . as is contended for by plaintiff, then why did the Legislature require the attachment to be dissolved as a matter of course upon the nonresident defendant entering his appearance and filing answer?

In this class of cases the ordinary process of law— by publication — could at all times have been served upon a nonresident, but not so in personal or transitory actions, such as suits on accounts or for damages, etc.

No necessity exists in that class of cases for such a statute, while in the class of cases which leads to this amendment, no service at all could be had, because of the nonresidence of defendant and of the inability of the plaintiff to give the bond required by said statute,

If this is not the meaning of section 2298', then why bring an action at law in any such case, and why not in the first instance, in any and all such cases, file a bill in equity, accompanied by an affidavit for an attachment, without bond ?

Clearly, according to the contention of learned counsel' for the plaintiff, if sound, there would be no necessity whatever for suing out an attachment under the original provisions of said section 2298, which have not been changed and which require and have at all times from its original enactment required the giving of a good and sufficient bond for double the amount sued for.

To make myself clear: If counsel for plaintiff are correct in their contention, then there is no necessity whatever for any person who wishes to avail himself of the provisions of said section 2344, regarding suits in equity, based upon attachments, to first bring an action at law and reduce his claim to judgment, against a nonresident, and sue out an attachment with bond as contemplated by said section 2298, both before and after its amendment in the year 1907, for the reason that in each and all such cases the plaintiff could in the first instance, as before stated, file his suit in equity, and at the same time file an affidavit of nonresidence, and sue out an attachment without bond.

Such a construction placed upon section 2298 would clearly shelve all of its own provisions except the amendment itself, which was enacted in 1907.

That clearly was not the intention of the Legislature in enacting said amendment, for had it been, the old section would have been repealed and the amendment enacted as a new section, thereby stripping it of all dead and useless matter.

There is no „ escape from the conclusion that the Legislature intended by the amendment to enable persons in this State to obtain jurisdiction over nonresidents doing business in this State, as before mentioned.

The proviso of the statute requiring the attachment to be dissolved upon the entrance of the appearance of the nonresident defendant, was designed to remove the statute from the constitutional inhibition of class legislation, which otherwise it would clearly have been.

By reading the cases of Implement Co. v. Jones, supra, and Davidson v. Dockery, supra, it will be seen that they were based upon the old section 2, page 3, of the Laws of 1860 (Sec. 51, chap. 141, Gr. S'. 1865, now Sec. 2298, R. S. 1909), which was originally enacted forty-odd years prior to the amendment thereof in the year 1907, as previously mentioned.

It is therefore perfectly apparent that these two cases have no application whatever to the case at bar.

We are, therefore, of the opinion, for the reason stated, that at the time of filing the original petition, notwithstanding an allegation in the petition to the contrary, the plaintiff had no judgment or statutory lien as contemplated by section 2344, Revised Statutes 1909; that the action of the court in overruling defendant’s motion to dismiss the cause was erroneous; and for that reason the judgment is reversed and the bill is dismissed.

All concur.