3i8
THE GREEN BAG
the burden of proof is upon the party who asserts the change;" citing Caldwell v. Pollak, 91 Ala. 353, 8 So. 546; Dupuy v. Wurtz, 53 N. Y. 556; Ennis v. Smith, 14 How. 400, 423, 14 L. Ed. 472; Isham v. Gibbons, 1 Bradf. (N. Y. Sur.) 69; Aikman v. Aikman, 3 Macq. 852, 877; Wanzer Lamp Co. v. Woods, 13 Ont. Pr. R. 511. EVIDENCE. (Best and Secondary.) Pa. — In Cole v. Elwood Power Co., 65 Atl. Rep. 678, a question was raised as to the admissibility of a carbon copy made on a typewriter at the same time as the original. The offer of the copy was refused on the ground that it was secondary evidence and that the testimony did not disclose any effort to secure the original. It appeared that the instrument was an exact carbon copy made on a typewriter at the same time as the original, signed by the same officers, executed in the same manner, and in every respect was an exact dupli cate. It was contended that as both the instru ments were contemporary writings and counter parts of each other, they might both be considered as originals. The court sustains the contention and holds that where an original paper and a carbon copy are made on a typewriter in the manner stated both may be considered as originals, and that either is admissible in evidence without notice to produce the other. EXECUTION. (Poor Debtor's Oath.) R. I. — In Mowry v. Bliss, 65 Atl. Rep. 616, a writ of pro hibition was sought against the justice of the district court to prohibit him from proceeding to administer the oath for the relief of poor debtors to the husband of the petitioner on his request to be admitted to take the same, based on his com plaint that he had no estate real or personal where with to support himself in jail or to pay the jail charges. The petition'.was under Gen. Laws, 1896, c. 260, Sec. 1, as amended by Court and Practice Act, 1905, p. 354, Sec. 1153, providing that any person who shall be imprisoned" for debt, whether on original writ, mesne process or execution, etc., may complain to the justice of any district court in the county where he shall be incarcerated that he has no estate whereof to support himself in jail or to pay jail charges, and may request to be per mitted to take the poor debtor's oath. It appeared from the petition that in a suit for divorce by the petitioner against her husband, the court granted an allowance for her support, and ordered the husband to pay such amount at fixed times; that he failed to comply with the order of the court, whereupon petitioner took out an execution for the amount of such sums accrued, and for the want of goods and chattels, the husband was
committed to jail under the execution. He applied to a justice of the district court of the county for the benefit of the poor debtor's oath. The court holds that where a defendant in a divorce proceeding is incarcerated for failure to satisfy an execution for alimony and suit money, he is not simply imprisoned for debt, but also for contempt for failing to comply with the court's decree, and concludes that the district court had no jurisdiction to permit him to take the poor debtor's oath, and obtain his discharge. EXECUTION. (Wrongful Levy.) Mo. App. — The question of the right of an officer to take under execution money in the hands of a debtor arises in Richards v. Heger, 99 S. W. Rep. 802. It appeared that plaintiff had just received a sum of money, and was engaged in counting it when the officer, approaching from behind, grabbed the package, stating: "I levy on this," and then offered to read the execution to plaintiff. In dis cussing the question that the officer was guilty of trespass against the person of plaintiff in seizing money in his hands, the court refers to Green v. Palmer, 15 Cal. 411, 76 Am. Dec. 492, where it appeared that a bag of gold held in the hands of plaintiff was seized and levied on by the sheriff after a scuffle between him and the plaintiff for its possession, and quotes from the opinion by Field, C. J.: "The coin was contained in a bag, which was held by plaintiff in his hand, and from its seizure thus situated the plaintiff could not claim any execution as he might, perhaps, do in reference to money on his person. Thus situated, it is like a horse held by its bridle subject to seizure under execution against its owner." After approving such holding, the court stated that the seizure of property attached to the person of a defendant would be a trespass against his person, as it would tend to provoke a breach of the peace, but to seize his property found in his possession not pertaining to his wearing apparel, nor worn or carried on his person for use, nor as an ornament, would not be an indignity against his person nor under ordinary circumstances a trespass. It asserts that the circumstances of the seizure in question were no more likely to provoke a breach of peace and possessed no more of the elements of a trespass than an entry by the officer on the premises of the defendant in the execution and seizure there, in his presence, of his personal effects against his will and over his protest. It concludes that an officer commits a trespass when he seizes and levies on defendant's property exempt from execution, or when to make a levy he commits unlawful violence against his person; but to take a package of currency from
