Statement of Facts. have previously engaged in such trade or business, the amount of such stock he expects to keep as aforesaid." Secs. 44 to 55, inclusive, prescribed the rate or sum to be paid for such license, graduated according to the sworn statement of the applicant's stock in trade, at the principal season of sale; ranging from $15 if the stock exceeded $1000 and was not more than $1500, to $150 if the stock exceeded $40,000. Sec. 56, as amended, provided that "if the applicant for a license lives out of the country or city wherein he proposes to carry on such business of selling, bartering, or otherwise dis posing of, or offering for sale such goods, chattels, wares, and merchandise; or if the applicant lives out of this state, or is unable to apply in person by reason of sickness or bodily infirmity, his or her agent may apply for license and make the affidavit as herein before provided." The plaintiff in error was indicted for selling by sample to one Kenney, in Baltimore, without first taking out a license therefor as required by the Code. It was alleged in the indictment that the defendant below was a citizen and resident of the city and State of New York; that the thirty packages of tea so sold were the property of the firm of Rosewell, Skeel & Co., residents and citizens of the city and State of New York, and were stored in the warehouse of said firm in the city of New York; that neither he the defendant, nor said Rosewell, Skeel & Co., had any store or place of business, temporary or permanent, or any stock in trade other than samples of tea in the State of Maryland, and neither the defendant nor the said Rosewell, Skeel & Co.. being the growers, makers, or manufacturers of said thirty packages of tea. The indictment further charged that neither the defendant nor the said Rosewell, Skeel & Co. intended to keep any stock in the city of Baltimore, or to be engaged in any trade or business in said city or state, otherwise than by selling by samples as aforesaid; that neither had any principal season of sale in said city or state, but that Rosewell, Skeel & Co. had their only place of business in the city of New York, where their stock in trade was and had since been kept, and where their Opinion of the Court. goods, on being sold, were then and since had been shipped directly to purchasers in the State of Maryland and other parts of the United States. The defendant demurred to the indictment; his demurrer was overruled, and having waived his right to plead over, judgment was entered against him. This judgment was affirmed by the Court of Appeals of Maryland (57 Maryland, 251). The defendant thereupon sued out this writ of error. The cause was argued at last term, on the 5th April, 1886. A reargument was ordered, and the cause was accordingly argued at this term. Mr. S. Teakle Wallis and Mr. Henry D. Loney for plaintiff in error at October term, 1885. Mr. Wallis for same at October term, 1886. Mr. Charles B. Roberts, Attorney General of Maryland, and Mr. Charles J. M. Gwinn, for defendant in error submitted on their brief at each hearing. MR. JUSTICE BRADLEY delivered the opinion of the court. This case does not differ materially from that of Robbins v. Taxing District of Shelby County, just decided. The Code of Maryland, as amended in 1880, provides that "no person or corporation other than the grower, maker, or manufacturer shall barter or sell, or otherwise dispose of, or shall offer for sale any goods, chattels, wares, or merchandise within this state, without first obtaining a license in the manner herein prescribed." A violation of this law was made an indictable offence; and the plaintiff in error, a citizen and resident of New York, was indicted for offering to sell, and for selling by sample, in the city of Baltimore, without license, certain goods for a New York firm, to be shipped from New York directly to the purchaser. The plaintiff in error demurred to the indictment, but it was sustained both by the court of original jurisdiction and by the Court of Appeals of Maryland on writ of error. The constitutionality of the law was duly raised, and the law was sustained. Statement of Facts. The same principles apply to this case which were considered in that of Robbins, and the same result must be declared. The judgment of the Court of Appeals of Maryland is reversed, and the plaintiff in error must be discharged. MR. CHIEF JUSTICE WAITE Concurring. MR. JUSTICE FIELD, MR. JUSTICE GRAY, and myself agree to this judgment, but on different grounds from those stated in the opinion of the court, It is not denied that the statute of Maryland requires a non-resident merchant desiring to sell by sample in that state, to pay for a license to do that business a sum to be ascertained by the amount of his stock in trade in the state where he resides, and in which he has his principal place of business. This differs materially from the statute of Tennessee, which was considered in Robbins v. Taxing District of Shelby County, just decided, and is in its effect, as we think, a tax on commerce among the states. The charge for the privilege to the non-resident is measured by his capacity for doing business all over the United States, and without any reference to the amount done or to be done in Maryland. SCHULER v. ISRAEL. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI. Submitted January 10, 1887.- Decided March 7, 1887. A judgment recovered in one court may be pleaded as a defence to a suit on the same cause of action pending in another when by law the cause of action is merged in the judgment. A garnishee has a right to set up any defence against the attachment process which he could have done against the debtor in the principal action; and if the debtor be insolvent, and owes the garnishee on a note not due for which he has no sufficient security, he is not bound to risk the loss of his debt in answer to the garnishee process. THIS was an action at law, in the nature of assumpsit, commenced in a state court against defendant in error and a gar Opinion of the Court. nishee. Judgment for defendant, and for garnishee. Plaintiff sued out this writ of error. The case is stated in the opinion of the court. Mr. D. P. Dyer for appellant. Mr. J. E. McKeighan for appellees. MR. JUSTICE MILLER delivered the opinion of the court. The plaintiff in error, who was plaintiff below, brought two separate suits in the Circuit Court of the city of St. Louis, Missouri, on the same day, against C. W. Israel and J. N. Israel, as partners in the banking business. One case was brought upon a note for the sum of $10,000, and the other upon a draft made by C. W. Israel & Co., for $11,250 on the Laclede Bank, on which payment was refused when presented at the bank and the draft duly protested. In each of these cases a writ of attachment was issued at the commencement of the suit which was served by way of garnishment on the Laclede Bank, also of St. Louis. An or der of publication was made in the state court against C. W. Israel and J. N. Israel on account of their being non-residents, and the two suits were removed into the Circuit Court of the United States for the Eastern District of Missouri, upon the application of the plaintiff, upon the ground that he was a citizen of the state of Kansas and the two Israels were citizens of the state of Texas. They were there consolidated and heard as one case. J. N. Israel appeared and filed an answer for himself alone in which he made no defence to the suit on the check, but set up as a defence to the suit on the note, that before the institution of the present suit in the Missouri court the plaintiff had commenced an action on the same note in the Circuit Court of the United States for the Northern District of Texas, and had at the time of the plea filed, recovered a judgment against the defendant, J. N. Israel, on said note, whereby he claimed that the note was merged in said judgment, and no judgment could be rendered on it in this action. Judgment was rendered in Opinion of the Court. favor of plaintiff for the amount of the check. The suit was dismissed by plaintiff before hearing as to C. W. Israel. The Laclede Bank in its response to the garnishee process served on it under the attachment, and in answer to interrogatories propounded to it by the plaintiff, admitted that there was, on the 24th day of October, 1885, standing on its books to the credit of the three several banking companies of which J. N. Israel was a partner certain sums of money. The attachment process was served on the Laclede Bank, November 2, 1885, and the bank in its answer says that on the 24th of October the said Israel, being wholly insolvent, made, executed, and delivered a deed of general assignment in conformity with the laws of the state of Texas, where he resided, for the benefit of all his creditors, which assignment is set forth in the answer, and that the bank had notice of this assignment immediately after it was made. It further answered that the said J. N. Israel, individually, and as a member of the several banking houses before referred to, namely, C. W. Israel & Co., the Exchange Bank of Harold, and the Exchange Bank of Wichita Falls, was indebted to the Laclede Bank in an amount exceeding all the sums on deposit with that bank at the date of the service of the attachment. The plaintiff demurred to the answer of the defendant Israel, setting up the judgment recovered in the United States Court for the Northern District of Texas on the note, and he demurred also to the answer of the Laclede Bank as garnishee, and the case was submitted to the court on these demurrers. The court rendered a judgment overruling both demurrers, finding for the defendant Israel in the suit upon the note and rendering judgment against him in the suit on the check. It also discharged the bank as garnishee. The plaintiff brings this case here by writ of error, and the two questions presented are: first, as to the sufficiency of the answer of J. N. Israel setting up the judgment in the action on the same note in Texas. While it is certainly true that the pendency of a suit in one court is not a defence, though it may sometimes be good in abatement, to another suit on the same cause of action in |