Central Law Journal.

ST. LOUIS, MO., NOVEMBER 22, 1901

Our honored correspondent at Galveston, Mr. E. T. Harris, a prominent attorney of that city, has just sent us a marked copy of his brief in the case of Hildenbrandt v. Ames, now pending in the Court of Civil Appeals of Texas, First Supreme Judicial District. This case is one of many suits which will probably arise out of the late flood disaster at Galveston, in which that very difficult and unsettled question of law will prominently protrude itself,-the proof of survivorship in a common disaster. Perhaps that phase of the question arising under wills and the distribution of estates of decedents will occasion little difficulty, the law being quite well settled on that point. See the leading case of Newell v. Nichols, 75 N. Y. 78. That phase of the question, however, arising under policies of life insurance, is in hopeless confusion and considerably complicated by the further question of the vested interest of the beneficiary peculiar to regular life policies. Mr. Harris' brief canvasses this question, and in the marked copy to which we have alluded we observe that what he expressly considers his most valuable citation is from the CENTRAL LAW JOURNAL. In closing his discussion of the authorities Mr. Harris says: "The ablest article or resume of the law bearing upon the case at bar is found in the 53d CENTRAL LAW JOURNAL, pages 184-189, inclusive. Were it not for wearying this court would embrace the entire language of said article in this argument, and submit it as the fairest presentation of both sides of the questions involved which has reached the eye of counsel for appellee. On page 189 of that article the author states, 'where the policy provides that the beneficiary shall take, "if surviving," no difficulty should arise. in any view of the case, as, in such case, survivorship is clearly a condition precedent to the enjoyment of the fund, and upon the representatives of the beneficiary must be the burden of proving survivorship before they are entitled to take anything under the policy.' The article in question cites many cases, and we doubt not it will have the calm

we

consideration of this Honorable Court.' This is not the only instance in which this particular article has been cited. In a similar case pending in the Supreme Court of Missouri, the attorney for the administrator has sent us acknowledgment of its valuable assistance. We mention this simply as an evidence of the practical aid and assistance which the CENTRAL LAW JOURNAL renders the active practitioner in winning his cases. The JOURNAL is not a legal storybook nor a graveyard of obituaries. It is devoted solely to the law-the announcement of its latest principles, and the solution of its most difficult problems. It is for that reason more often cited in the decisions of the courts than any other law journal in the country. The great mass of digests and reports are, of course, invaluable to the lawyer in ordinary cases. But questions of extreme rarity or peculiarity, or which have been settled unsatisfactorily or contrary to right principles or on which there is great conflict of authority, must be determined by exhaustive and dispassionate analysis and not by the mere partisan citation of authorities, the mind of the court being more inclined toward the former than the latter. The CENTRAL LAW JOURNAL has a staff of paid contributors-practicing lawyers of most exceptional competency who wrestle with these difficulties and boldly announce a solution based on the best considered authorities and the clearest principles of law. Such assistance is of all things most valuable to the court which seeks to be guided by right principle rather than solely by precedents, even if the latter are all "hog cases" and "on all fours."

No subject is more often litigated, apparently, than that of the liability of telegraph companies for negligent delivery of messages. The rule is that in all cases delivery

must be made to the addressee or his authorized agent. The difficulty is not, however, in the rule itself as in its application. In the recent case of Western Union v. Hendricks, 63 S. W. Rep. 341, the Supreme Court of Texas held that where a telegraph message is addressed to a person residing in the country in care of a resident of the town, both of whom are temporarily in another town, and a special price is paid to secure

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its delivery, the delivery to the partner of the latter is insufficient, but it should be delivered at the residence of the addressee. Other recent authorities on this question might be cited as follows: Pearsall v. Western Union, 124 N. Y. 256, 21 Am. St. Rep. 662; Telegraph Co. v. Mitchell, 91 Tex. 454, 44 S. W. Rep. 274, 66 Am. St. Rep. 906; Hendricks v. Western Union, N. Car. 304, 35 S. E. Rep. 543; Western Union v. Mitchell (Tex. 1898), 44 S. W. Rep. 274; Western Union v. Jackson (Tex. App. 1898), 46 S. W. Rep. 279; Martin v. Telegraph Co., 18 Wash. 260, 51 Pac. Rep. 376. In the case of Western Union v. Tressall, 98 Ind. 566, however, it was held that there was an implied authority on the part of a hotel clerk to receive a telegram for a guest, and the company cannot be held responsible for the clerk in failing to deliver it. On the other hand, in the case of Western Union v. Jackson, 46 S. W. Rep. 279, it was held that though a telegram is directed in care of a certain person, the company must use diligence to deliver to the addressee. So also in the case of Telegraph Co. v. Mitchell, 91 Tex. 454, it was held that a charge that, in the absence of the husband, it was the duty of the company, if his wife was at the residence, to deliver to her a message addressed to him, was error, she not being the general agent of her husband.

NOTES OF IMPORTANT DECISIONS.

ACTION ON FOREIGN JUDGMENT-PROOF OF LAWS ALLOWING INTEREST ON JUDGMENTS IN FOREIGN STATE.-In the recent case of Schroeder v. Boyce, 86 N. W. Rep. 387, the Supreme Court of Michigan reversed the decision of a trial court because of failure to prove that a foreign state allowed interest on judgments. The appellate court held that where the trial court, in a suit on a judgment of another state, allowed interest thereon without proof of the rate of interest in such state, there was reversible error, since the common law was presumed to be in force in the foreign state, and at common law judgments do not carry interest. The court said: "There was no proof given in the case showing what the rate of interest is in the state of Indiana. As the common law is presumed to be in force in other states unless the contrary is shown, and at common law judgments do not carry interest, interest is not recoverable on a judgment rendered by the courts of another state without proof that the

law of such state allows interest on judgments." Judgments at common law do not bear interest, so that in the absence of express legislation which, if of a foreign state, must be proved, a recovery on a judgment would not include interest. Hamer Kirkwood, 25 Miss. 95; Winch v. Ice Co., 86 N. Y. 618; Ex parte Brown, 18 S. Car. 87; Ormsby v. Johnson, 1 B. Mon. (Ky.) 80; Atchison, etc. R. R. v. Gabbert, 34 Kan. 132; Thompson v. Monrow, 2 Cal. 99, 56 Am. Dec. 318; Cavender v. Guild, 4 Cal. 253; Kermott v. Ayer, 11 Mich. 181.

V.

CRIMINAL TRIAL-IMPROPER REMARKS OF TRIAL JUDGE. Some courts seem to have fallen into the very bad practice of commenting on the evidence and insidiously infecting the jury with their own opinion of the facts in the case. As a general rule, however, these remarks do not call for a reversal of the cases unless it is clearly shown that appellant has been injured by them. Thus, in the recent case of Hinzar v. State, 63 S. W. Rep. 329, the Supreme Court of Texas held that a comment of the court in a criminal prosecution on rejected evidence that: "That cuts no ice. The only question is whether defendant assaulted her [the prosecutrix],"—while improper, is not reversible error.

While the court in this case may be correct in its view that such remark did not injure the appellant in this case, it is not difficult to imagine a case in which such a remark could be highly prejudicial. No comment could be more calculated to impress upon the jury the court's opinion that the evidence sought to be introduced was frivolous and in a close case would certainly affect the weight of the evidence and the verdict of the jury. It is the well-settled rule that any improper remarks of the court in the presence and hearing of the jury, liable to influence their action, is misconduct. Wanack v. Macon, 53 Ga. 163; Bowman v. State, 119 Neb. 523; Skelly v. Boland, 78 Ill. 438; Cronkhite v. Dickerson, 51 Mich. 177. Thus where in charging the jury the judge playfully remarked that the jury might give "such damages as would teach the old gentleman not to violate the Sabbath, nor injure his health by riding in the night, nor interfere with the rights of others," it was held that the instructions were erroneous, because the remarks were calculated to make the jury believe that the judge thought the facts justified heavy exemplary damages. Hair v. Little, 28 Ala. 236.

LIFE INSURANCE-MISREPRESENTATIONS AND WARRANTIES.-One of the most often litigated questions in the law of life insurance is the effect of misrepresentations in the application. The whole question lies wrapped up in the further question whether such representations are to be given the legal effect of warranties or of mere representations only. In the former case the statements in the application unless literally true will avoid the policy, however immaterial such misrepresentations may be; in the latter case mis

statements in the application, sufficient to work an avoidance of the policy, must be of facts substantially material to the risk. In the recent case of Kansas Mutual Life Insurance Co. v. Pinson, 63 S. W. Rep. 531, the Supreme Court of Texas held that an application for life insurance recited that the applicant agreed that his statements to the medical examiner were true, and were offered to the company as a consideration of the contract. The policy stipulated that the insurance was granted in consideration of the statements and agreements in the application, "which are made a part of the contract." The applicant

stated to the medical examiner that he had five sisters, aged, respectively, 52, 50, 47, 45, and 36 years, but their ages were in fact, respectively, 49, 46, 44, 36, and 33 years. The court held that the provisions of the policy constituted a warranty of the truth of the statements in the application, and that the discrepancy forfeited the contract. The court makes this peculiar statement of the law: "There is nothing in the facts stated in connection with the question which will take this case out of the general rule that the breach of a warranty in an insurance policy works a forfeiture of the contract. The rule that a substantial performance of a warranty is sufficient does not apply in this case, and we are not called upon to say what would be the effect if the variance between the actual ages and the ages warranted was very slight. Lest this opinion might be misunderstood, we will state that we do not intend to assert that a literal compliance with such a warranty would be necessary, but, in our opinion, the facts do not justify the court in assuming that the discrepancy in the ages is so irrelevant as to avoid the effect of the warranty. To the question, we answer that the provisions of the policy constitute a warranty of the truth of the statements made in the application, and that the discrepancy between the ages of the sisters as stated and their actual ages caused a forfeiture of the contract of insurance." The court's reference to a rule of law stating that a substantial performance of a warranty is sufficient, fails to find support from the authorities. The latter are all agreed that if the statements in the application, have by express agreement been made a part of the policy, and given the effect of warranties, they must be literally complied with. Hartford Insurance Co. v. Gray, 91 Ill. 159; Connecticut Mutual Life Insurance Co. v. Pyle, 44 Ohio St. 19; Alabama Insurance Co. v. Garner, 77 Ala. 210; Blooming Grove Insurance Co. v. McAnerney, 102 Pa. St. 335. It is only when the statements have simply the effect of representations and are not made a part of the contrac. that a substantial performance or accuracy will suffice. Horn v. Insurance Co., 64 Barb. (N. Y.) 81; Monlor v. Insurance Co., 101 U. S. 708; Lamb v. Insurance Co., 70 Iowa, 238.

VENUE IN FORECLOSURE SUITS.

The General Rule as to Venue in Chancery. -As the foreclosure proceeding, in the form we are here considering, is essentially a suit in chancery1 the rules which govern its venue have their source in that forum. The prevailing doctrine is that all equity suits were once transitory.2 Hence, chancery would entertain a bill for specific performance3 or for redemption where the defendant was served within the realm, though the suit involved land in a foreign jurisdiction. There are, indeed, decisions in which a contrary opinion is expressed," but the above is the doctrine prevalent in England when the law as to venue originated, and is also the one most in harmony with the maxim that "equity acts in personam."

Strict Foreclosure a Transitory Proceeding. -The original foreclosure proceeding shared this characteristic of the other remedies of chancery, for it was a proceeding in personam.6 But the proceeding of which this was true was not the modern foreclosure and sale; it

1 Price v. State Bank, 14 Ark 50.

2 Georgia: Clements v. Tillman, 79 Ga. 451, 11 Am. St. Rep. 441. Maryland: Carroll v. Lee, 3 G. & J. (Md.) 504, 22 Am. Rep. 350; Keyser v. Rice, 47 Md. 203, 28 Am. Rep. 448. Tennessee: Newman v. Stuart, Cooke, 339. Virginia: Dickinson v. Hoomes, 8 Gratt. (Va.) 410. Canada: "The foreclosure suit has come down from the chancery practice, and in that prac. tice there never was any fixed locality of venue applying to certain actions as in the common law prac tice." Seymour v. De Marsh, 11 Ont. Prac. Rep. 472. 3 Penn v. Lord Baltimore, 1 Ves. 444 (1750).

4 Kanawha Coal Co. v. Kanawha, etc. Coal Co., 7 Blatchf. (U. S.) 415; Cf. Cholmondeley v. Lord Clinton, 2 Jac. & W. 134.

Dunn v. McMillen, 1 Bibb (Ky.), 409, the court saying: "Analogous to this distinction at law between actions local and transitory, it has been held in chancery, that where the decree is to affect the land directly, as in the case of a suit brought for partition, or for dower, then the court cannot entertain jurisdiction only where the land lies." Cf. Parker v. McAllister, 14 Ind. 12; Gill v. Bradley, 21 Minn. 15; Collins v. Park (Ky.), 18 S. E. Rep. 1013; Chapin v. Circuit Judge (Mich.), 62 N. W. Rep. 351; Neal v. Reynolds, 38 Kan. 432.

6 Federal Cases: Pennoyer v. Neff, 95 U. S. 714; Armdt v. Griggs, 134 U. S. 316, 326; Deck v. Whitman, 96 Fed. Rep. 873, 889. California: Fallon v. Butler, 21 Cal. 24, 33. Florida: Judge v. Forsyth, 11 Fla. 257, 262. Iowa: McConnell v. Hutchinson, 71 Iowa, 512. 516. But see Cole v. Conner, 10 Iowa, 299. Kentucky: Downing v. Palmater, 1 T. B. Mon. (Ky.) 164. Nebraska: Hurley v. Estes, 6 Neb. 386; Peters v. Dunnels, 5 Neb. 465. New Jersey: White v. Williams, 8 N. J. Eq. 876. New York: Kershaw v. Thompson, 4 Johns. Ch. (N. Y.) 609, 616. South Carolina: Trapier v. Waldo, 16 S. Car. 276, 283.

7 See Lansing v. Goelet, 9 Cow. (N. Y.) 346.

"Originally it was regarded as transitory. In so far as it is local it is so made by statute." Ladd, J., in McDonald v. Second National Bank, 106 Iowa, 517523.

9 England: Toller v. Carteret, 2 Vern. 494 (1705); Paget v. Ede, 18 Eq. Cas. 118. Connecticut: Palmer v. Mead, 7 Conn. 149, 157; Broom v. Beers, 6 Conn. 198 In the latter case it is observed: "The plaintiff in error has taken several exceptions to the decree in question. The first is, that the suit was not brought in the proper county. The title of land is not in question; and such suits have always been considered transitory. 2 Swift's Dig. 197; How. Mort. 1043; Anon. 2 Chan. Cas 244; Owen v. Granger, cited. Arguendo, 2 Day, 477; Owen v. Hather, Superior Court, Hartford County, 1818; Stat. 34, tit. 6, cl. 1, sec. 6 (Ed. 1808)." Iowa: McDonald v. Second Nat. Bauk, 106 Iowa, 517, 523. Kentucky: Caufman v. Sayre, 2 B. Mon. (Ky.) 202; Owings v. Beall, 3 Litt. (Ky.) 103. New York: House v. Lockwood, 40 Hun (N. Y.), 532; Union Trust Co. v. Olmstead, 62 N. Y. 729. South Carolina: Trapier v. Waldo, 16 S. Car. 276, 283. Tennessee: Grace v. Hunt, Cooke (Tenn.), 341; Avery v. Holland, 2 Overt (Tenn.), 71.

10 aufman v. Sayre, 2 B. Mon. (Ky.) 202; Owings v. Beall, 3 Litt (Ky.) 103; Broome v. Beers, 8 Conn. 198; Palmer v. Mead, 7 Conn. 157. Cf. Trapier v. Waldo, 16 S. Car. 276, 383.

11 House v. Lockwood, 40 Hun (N. Y.), 532. This was a suit brought in New York for the strict foreclosure of a mortgage on land in Illinois. The court said: "The subject matter of this controversy is capable of being wholly and completely disposed of by a decree between those parties. They were personally within the jurisdiction of the court when its process was served upon them, and the defendants have appeared and served their answers contesting the right of the plaintiff to maintain the action. They are personally, therefore, subject to the jurisdiction of the court. And where that is the fact, and such jurisdiction has been acquired, there it bas been the practice of courts of equity to decree relief, disposing of the controversy, although the subject matter itself may be situated in another state or county." See also Union Trust Co. v. Olmstead, 62 N. Y. 729.

18 Bills are often filed (in England) upon mortgages in the West Indies." Story, Equity Jurisprudence, sec. 1293. Thus Paget v. Ede, 18 Eq. Cas. 118, involved the foreclosure of a mortgage of an estate in Nevis, one of the Leeward islands.

18 Teller v. Carteret, 2 Vern. 494 (1705). This was a suit to foreclose the defendant's equity of redemp tion in Sark, one of the Channel isles, the whole of which was subject to the mortgage. Neither the

system, was wholly immaterial, so far as the locus of the suit was concerned. And conversely the fact that the land itself might be within the jurisdiction of the court would not authorize the court to entertain the bill if the parties could not be served there.14 Such was the ancient law of venue in this proceeding, and such is still the rule where strict foreclosure alone is sought.15

Change Necessitated by Introduction of Equitable Foreclosure-Proceeding Becomes Either Local or Transitory.-With the introduction of the sale as a substitute for strict foreclosure came a necessary change in the law as to the venue of the suit. For in order to effect a sale the court must have jurisdiction of the res; title to land cannot be affected by a foreign tribunal, and hence a decree of foreclosure and sale in one state is without validity as to land in another. 16 Again, the mere fact that the land is within the jurisdiction enables a court to take cognizance of a bill praying for a sale." Hence

jurisdiction of the high court, nor the English mortgage laws extended to the island, but chancery entertained the bill by virtue of the service in England.

14 Grace v. Hunt, Cooke (Tenn.), 341. Cf. Avery v. Holland. 2 Overt (Tenn.), 71; Owings v. Beall, 3 Litt. (Ky) 103.

15 House v. Lockwood, 40 Hun (N. Y.), 532.

16 England: Grey v. Manitoba & N. W. R. Co., App. Cas. (Privy Council, 1897) 254, 66 L. J. P. C. (N. S.) 66, where Lord Hobhouse observes: "As regards the question of sale, the decisions, both English and transatlantic, which bear on the jurisdiction of courts of justice to deal with foreign land, have been very carefully discussed in the courts below. It is hardly necessary to go into that discussion again here. The thing asked for by the bill is a judicial sale of land partly within and partly out of the jurisdiction, as an entire thing, and with specific directions by the court. It is impossible to do that." "The courts of our state will not recognize the right of courts in other states to affect directly the title to real estate in the former. The most that can be done is to allow foreign courts having jurisdiction of the parties to compel conveyances by the owner, and recognize as valid titles so acquired. We are aware of no case that has gone so far as to recognize the validity of a deed given by a referee or other officer of court by authority of law in another jurisdiction. The rule seems to be that the courts of each state have exclusive jurisdiction to settle the title to lands within its own limits." Farmers' Loan & Trust Co. v. Postal Tel. Co., 55 Conn. 324. Indiana: Eaton, etc. R. Co. v. Hunt, 20 Ind. 457, 465. Kansas: Lichty v. Martin, 11 Kan. 565; Union Trust Co. v. Olmstead, 62 N. Y. 729.

17 "As a sale of mortgaged land operates in rem, cognizance over a bill for a sale may be exercised by the court of equity of the county in which the land lies, and would, upon common law principles, be restricted to that local court, if the prayer for a sale

arose the rule that a suit for both foreclosure and sale might be brought either in the county where the defendant resided or in that in which the land was situated.18

The Same Continued-Rule Made Statutory. This doctrine which gave a dual venue to the foreclosure suit has been enacted into statutes in several of the states, 19 and in these the mortgagee may elect to institute proceedings in the county either of the mortgagor's residence or of the situs of the land. The same rule has been applied in the foreclosure of a vendor's lien20 which has been treated as an equitable mortgage.2 21 In Texas the district court of the county where the note, secured by the mortgage, is payable, has jurisdiction of the foreclosure suit,22 and such was formerly the law in Iowa.28

But

were the only grounds of jurisdiction." Caufman v. Sayre, 2 B. Mon. (Ky.) 202. Cf. Owings v. Beall, 3 Litt. (Ky) 103, 107.

18 Caufman v. Sayre, 2 B. Mon. (Ky.) 202, the court saying: "A bill for ascertaining and settling the amount due, and for both for closure and sale, is personal as well as local; and, therefore, in our opinion, either the person of a necessary defendant or the locality of the mortgaged premises may give jurisdic tion in such a suit. It cannot be known until the final decree, whether the suit may not produce the debt without a sale of the mortgaged estate."

19 Alabama: Code, sec. 3421, construed in Reeves v. Brown, 103 Ala. 35 South. Rep. 824, where the court says: "When a bill is filed for the foreclosure of a mortgage on real estate, which is situated in one county, and the mortgagor resides in another, under section 3431 of the Code, the chancery court of either district or county,-the one where the mortgagor resides, or the one where the real estate or a material portion thereof is situated,-has jurisdiction, and the complainant may elect, at his pleasure in which of the two districts or counties he will file his bill. Asburst v. Gibson, 57 Ala. 586; Harwell v. Lehman, 72 Ala. 345." Iowa: Cole v. Conner, 10 Iowa, 399; Finnagan v. Manchester, 12 Iowa, 521. The statutes has been changed since these cases were decided so that the action is now purely local. See post, p. Tennessee: Code (1884), sec. 3515. This section permits the action to be brought in the county where the land lies, but it does not repeal the chancery rule which authorized the proceeding where the mortgagor could be found. Texas: Sayles' Civil Stat. vol. 1, sec. 1198, subdiv. 11; Kinney v. McLeod, 9 Tex. 78. It seems that in Texas foreclosure may also be brought in the county where the note is payable. Brigham v. Thompson, 12 Tex. Civ. App. 562, 34 S. W. Rep. 358.

20 Joiner v. Perkins, 5 Tex. 300.

21 See, however, Edminster v. Higgins, 6 Neb. 365, distinguishing this from an equitable mortgage. 22 Brigham v. Thompson, 12 Tex. Civ. App. 562, 34 S. W. Rep. 358.

23 Iowa, L. & T. Co. v. Day, 63 Iowa, 459; Equitable Life Ins. Co. v. Gleason, 56 Iowa, 47. Cf. Brecken ridge v. Brown, 9 Iowa, 396. A statute authorizing the action to be brought where the note is payable

where the mortgagor was not joined and the defendant, who was an assuming purchaser, resided in another county than that in which the land lay, it was held that the action could not be brought in the latter county," and the same was decided where the mortgaged property included both real estate and chattels.25 On the other hand, where the service was by publication only, the suit was required to be instituted in the county which was the situs of the mortgaged premises.26 In Kentucky the statute making the venue local excepts decedents' mortgages, but this will not permit the institution of the suit in another county than that in which the land lies, unless there is also an administration suit pending there.27

The Same Continued-Venue made Local, but not Jurisdictional.-In some states the effect of legislation has been to render the foreclosure suit nominally local but also to permit the venue to be changed,28 or the suit to proceed in another county than that of the res, unless such change is applied for.29 Under statutes of this class the venue is not, governs though when the mortgage was executed the venue was local only; since the change does not substantially affect the rights of parties. Equitable Life Ins. Co. v. Gleason, 56 Iowa, 47. 24 Higgins v. Frederick, 32 Tex. 283. 25 Ashurst v. Gibson, 57 Ala. 584.

26 Iowa L. & T Co. v. Day, 63 Iowa, 459.

27 Shield v. Yellman, 100 Ky. 655, the court saying: "It is manifest that if an action was pending to settle the estate of a deceased person, and mortgage liens were set up, the court, where the personal representative was qualified, alone having jurisdiction of such action, must also have jurisdiction to decree a sale of the mortgaged property, although it may be situated in another county. Hence the necessity for an exception to the general rule. In this case there was no personal representative and no suit to settle the estate. Moreover, it was a suit to sell the busband's interest as well as that of his wife's, and for his debt, and we do not see how in a suit in Fayette county his interest could have been sold, the action as to him being clearly local."

28 Colorado: Fletcher v. Stowell, 17 Colo. 94, construing Colorado Code, secs. 25, 29. Missouri: Chouteau v. Allen, 70 Mo. 290, 354. New Hampshire: Tucker v. Lake (N. H.), 29 Atl. Rep. 406. New York: Code Civil Procedure, sec. 987.

29 Colorado: Fletcher v. Stowell, 17 Colo. 94. New York: March v. Lowry, 26 Barb. (N. Y.) 197, 16 How. Pr. 41, construing Old New York Code, sec. 126. North Carolina: Falls of Neuse Mfg. Co. v. Brower, 105 N. Car. 440, construing Code, secs. 190 and 195. North Dakota: Code, sec. 5244. So in old Dakota territory. See Territory v. Judge, 5 Dak. 875. South Carolina: Trapier v. Waldo, 16 S. Car. 276, construing Code, sec. 149. Wisconsin: Pereles v. Albert, 12 Wis. 666. The foreclosure suit is now purely local in Wisconsin.