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track within any one county has been devised than to erty has its situs at the owner's domicile, and in adoptascertain the value of the whole road, and apportioning the system of taxing it at the place at which it is

the value within the county by its relative length to
the whole." This court has expressly held in two
cases, where the road of a corporation rau through
different States, that a tax upon the income or fran-
chise of the road was properly apportioned by taking
the whole income or value of the franchise, and the
length of the road within each State, as the basis of
taxation. Delaware Railroad Tax, 18 Wall. 206; Rail-
road Co. v. Pennsylvania, 21 id. 492." 92 U. S. 608, 611.
So in Telegraph Co. v. Attorney-General, 125 id. 530,
this court upheld the validity of a tax imposed by the
State of Massachusetts upon the capital stock of a
telegraph company, on account of property owned
and used by it within the State, taking as the basis of
assessment such proportiou of the value of its capital NEGLIGENCE-LANDSLIDE NOT AN “ACT
stock as the length of its lines within the State bore to
their entire length throughout the country.

used and by whose laws it is protected, property em-
ployed in any business requiring continuous and con-
stant movement from one State to another would es-
cape taxation altogether.
Judgment affirmed.

BROWN, J., not having been a member of the court when this case was argued, took no part in its decision.

Even more in point is the case of Marye v. Railroad Co., 127 U. S. 117, in which the question was whether a railroad company incorporated by the State of Maryland, and no part of whose own railroad was within the State of Virginia, was taxable under general laws of Virginia upon rolling stock owned by the company and employed upon connecting railroads leased by it in that State, yet not assigned permanently to those roads, but used interchangeably upon them and upon roads in other States, as the company's necessities required. It was held not to be so taxable, solely because the tax laws of Virginia appeared upon their face to be limited to railroad corporations of that State; and Mr. Justice Matthews, delivering the unanimous judgment of the court, said: "It is not denied, as it cannot be, that the State of Virginia has rightful power to levy and collect a tax upon such property used and found within its territorial limits as this property was used and found, if and whenever it may choose, by apt legislation, to exert its authority over the subject. It is quite true, as the situs of the Baltimore and Ohio Railroad Company is in the State of Maryland, that also upon general principles, is the situs of all its personal property; but for purposes of taxation, as well as for other purposes, that situs may be fixed in whatever locality the property may be brought and used by its owner by the law of the place where it is found. If the Baltimore and Ohio Railroad Company is permitted by the State of Virginia to bring into its territory, and there habitually to use and employ, a portion of its movable personal property, and the railroad company chooses so to do, it would certainly be competent and legitimate for the State to impose upon such property, thus used and employed, its fair share of the burdens of taxation imposed upon similar property used in the like way by its own citizens. And such a tax might be properly assessed and collected in cases like the present, where the specific and individual items of property so used and employed were not continuously the same, but were constantly changing, according to the exigencies of the business. In such cases the tax might be fixed by an appraisement and valuation of the average amount of the property thus habitually used, and collected by distraint upon any portion that might at any time be found. Of course, the lawfulness of a tax upon vehicles of transportation used by common carriers might have to be considered in particular instances with reference to its operation as a regulation of commerce among the States, but the mere fact that they were employed as vehicles of transportation in the interchange of inter-State commerce would not render their taxation invalid." 127

U. S. 123, 124. For these reasons and upon these authorities, the court is of opinion that the tax in question is constitutional and valid. The result of holding otherwise would be, that if all the States should concur in abandoning the legal fiction that personal prop

BRADLEY, J., with whom concurred FIELD and HARLAN, JJ., dissent.

OF GOD."

UNITED STATES SUPREME COURT, MAY 11, 1891.

GLEESON V. VIRGINIA MIDLAND RAILWAY CO.*

A landslide in a railway cut, which results from the loosening of the earth in its sides by a fall of rain which is not of unusual violence, is not such an occurrence as is embraced in the phrase "act of God."

A railroad company which maintains a cut with sides in such a condition that a landslide of this character occurs therein is guilty of negligence, though the immediate cause of the accident was vibration produced by a train passing through the cut.

In an action against a railroad company for injuries to a passenger where an instruction is given for defendant that the burden of proof is on plaintiff to show negligence from which his injury resulted, it is error to refuse to modify the instruction by adding that the injury itself, if plaintiff was in the exercise of ordinary care, is prima facie evidence of negligence.

IN

error to the Supreme Court of the District of Columbia.

This is an action for damages, brought in the Supreme Court of the District of Columbia. It appears from the bill of exceptious that at the trial the evidence introduced by the plaintiff tended to show that in January, 1882, he was a railway postal-clerk, in the service of the United States post-office department; that on Sunday, the 15th of that month, in the discharge of his official duty, he was making the run from Washington to Danville, Virginia, in a postal-car of the defendant, and over its road; that in the course of such run the train was in part derailed by a landslide which occurred in a railway cut, and the postal-car in which the plaintiff was at work was thrown from the track upon the tender, killing the engineer and seriously injuring the fireman; and that the plaintiff, while thus engaged in performing his duty, was thrown violently forward by the force of the collision, striking against a stove and a letter-box, three of his ribs being broken, and his head on the left side contused, which injuries are claimed to have permanently impaired his physical strength, weakened his mind, and led to his dismissal from his office, because of his inability to discharge its duties. Defense was made by the company under these propositions: That the landslide was caused by a rain which had fallen a few hours previous, and therefore was the act of God; that it was a sudden slide, caused by the vibration of the train itself, and which therefore the company was not chargeable with, since it had, two hours before, ascertained that the track was clear; and that the injury resulted from the plaintiff's being thrown against the postal-car s letter-box, for which the company was not responsible, since he took the risk incident to his employment. At the close of the testimony, the court,

*11 Sup. Ct. Rep. 859.

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having given the jury certain instructions in accord-
ance with the requests of the plaintiff, charged the
jury, at defendant's request, as follows: (1) The
burden of proof is on the plaintiff to show that the
defendant was negligent, and that its negligence
caused the injury. (2) The jury are instructed that
the plaintiff, when he took the position of a postal
clerk on the railroad, assumed the risk and hazard at-
tached to the position, and if, in the discharge of his
duties as such, he was injured through the devices in
and about the car in which he was riding, properly
constructed for the purpose of transporting the mails,
the railroad is not liable for such injury unless the
same were caused by the negligent conduct of the com-
pany or its employees. (3) The court instructs the
jury that while a large degree of caution is exacted
generally from railway companies in order to avert
accidents, the cautiou applies only to those accidents
which could be prevented or averted by human care and
foresight, and not to accidents occurring solely from
the act of God. If they believe that the track and
instruments of the defendant were in good order, its
officers sufficient in number and competent, and that
the accident did not result from any deficiency in any
of these requirements, but from a slide of earth caused
by recent rains, and that the agents and servants of
the company had good reason to believe that there
was no such obstruction in its track, and that they
could not, by exercise of great care and diligence,
have discovered it in time to avert the accident, then
they should find for the defendant. (4) If the jury be-
lieve from the evidence that the defendant's instru-
ments, human and physical, were suitable and quali-
fied for the business in which it was engaged; that the
accident complained of was caused by the shaking
down of earth which had been loosened by the recent
rains, and that the earth was shaken down by the
passing of this train-then the accident was not such
an act of negligence for which the defendant would
be responsible, and the jury should find for the de-
fendant." The counsel for the plaintiff objected to
the granting of the first of these prayers, and asked
the court to modify it by adding the words "but that
the injury to the plaintiff upon the car of the defend-
ant, if the plaintiff was in the exercise of ordinary
care, is prima facie evidence of the company's liabil-
ity." But the court refused to modify the said prayer,
and the plaintiff duly and severally excepted to the
granting of each one of said prayers on behalf of the
defendant, and to the refusal of the court to modify
the said first prayer, as requested. The jury, so in-
structed, found for the defendant, and judgment was
rendered accordingly. That judgment having been
affirmed by the court in General Term (5 Mackey, 356),
this writ of error was taken.

I. H. Ford and Guion Miller, for plaintiff in error.
Linden Kent, for defendant in error.

LAMAR, J., after stating the facts as above, delivered the opinion of the court.

It will be most convenient in the decision of this case to consider the third instruction first. The objections made to it are three: (1) “It assumes that the accident was caused by an act of God, in the sense in which that term is technically used." It appears that the accident was caused by a landslide, which occurred in a cut some fifteen or twenty feet deep. The defendant gave evidence tending to prove that rain had fallen ou the afternoon of Friday and on the Saturday morning previous; and the claim is that the slide was produced by the loosening of the earth by the rain. We do not think such an ordinary occurrence is embraced by the technical phrase an act of God." There was no evidence that the rain was of extraordinary character, or that any extraordinary re

sults followed it. It was a common, natural event; such as not only might have been foreseen as probable, but also must have been foreknown as certain to come. Against such an event it was the duty of the company to have guarded. Extraordinary floods, storms of unusual violence, sudden tempests, severe frosts, great droughts, lightnings, earthquakes, sudden deaths and illnesses, have been held to be "acts of God; " but we know of no instance in which a rain of not unusual violence, and the probable results thereof in softening the superficial earth, have been so considered. In Dorman v. Ames, 12 Miun. 451 (Gil. 347), it was held that a man is negligent if he fail to make precautions against such rises of high waters as are usual and ordinary, and reasonably to be anticipated at certain seasons of the year, and we think the same principle applies to this case. Ewart v. Street, 2 Bailey, 157, 162; Moffat v. Strong, 10 Johns. 11; Steamboat Co. v. Tiers, 24 N. J. Law, 697; Railway Co. v. Braid, 1 Moore P. C. (N. S.) 101. (2) The instruction does not hold the defendant "responsible for the condition of the sides of the cut made by it in the construction of the road, the giving way of which caused the accident." We think this objection is also well taken. The railroad cut is as much a part of the railroad structure as is the fill. They are both necessary, and both are intended for one result, which is the production of a level track over which the trains may be propelled. The cut is made by the company no less than the fill; and the banks are not the results of natural causes, but of the direct intervention of the company's work. If it be the duty of the company (as it unquestionably is) in the erection of the fills and the necessary bridges to so construct them that they shall be reasonably safe, and to maintain them in a reasonably safe condition, no reason can be assigned why the same duty should not exist in regard to the cuts. Just as surely as the laws of gravity will cause a heavy train to fall through a defective or rotten bridge to the destruction of life, just so surely will those same laws cause landslides and consequent dangerous obstructions to the track itself from ill-constructed railway cuts. To all intents and purposes a railroad track, which runs through a cut where the banks are so near and so steep that the usual laws of gravity will bring upon the track the debris created by the common processes of nature, is overhung by those banks. Ordinary skill would enable the engineers to foresee the result, and ordinary prudence should lead the company to guard against it. To hold any other view would be to overbalance the priceless lives of the travelling public by a mere item of increased expense in the construction of railroads; and after all an item, in the great number of cases, of no great moment.

In a late case in the Queen's Bench Division-Tarry v. Ashton, 1 Q. B. Div. 314-two out of three judges declared in substance that a man who, for his own benefit, suspends an object, or permits it to be suspended, over the highway, and puts the public safety in peril thereby, is under an absolute duty to keep it in such a state as not to be dangerous. The facts of the case were these: The defendant became the lessee and occupier of a house from the front of which a heavy lamp projected several feet over the public foot pavement. As the plaintiff was walking along in November, the lamp fell on her and injured her. It appeared that in the previous August the defendant employed an experienced gasfitter to put the lamp repair. At the time of the accident a person employed by defendant was blowing the water out of the gas-pipes of the lamp, and in doing this a ladder was raised against the lamp-iron, or bracket from which the lamp hung; and on the man mounting the ladder, owing to the wind and wet, the ladder slipped, and he, to save himself, clung to the lamp-iron, and the shaking caused the lamp to fall. On examination it was

gence in guarding their road against such obstructions." See also McElroy v. Railroad Corp., 4 Cush. 400; Hutch. Carr., p. 524; Bennett v. Railroad Co., 102 U. S. 577. This view of the obligation of the company of course makes it immaterial that the slide was suddenly caused by the vibration of the train itself. It is not a question of negligence in failing to remove the obstruction, but the negligence in allowing it to get there. We are also of the opinion that it was error to refuse to modify the first instruction for the defendant as requested by the plaintiff. Since the decisions in Stokes v. Saltonstall, 13 Pet. 181, and Railroad Co. v. Pollard, 22 Wall. 341, it has been settled law in this court that the happening of an injurious accident is, in passenger cases, prima facie evidence of negligence on the part of the carrier, and that (the passenger being himself in the exercise of due care) the burden then rests upon the carrier to show that its whole duty was performed, and that the injury was unavoidable by human foresight. The rule announced in those cases has received general acceptance, aud was followed at the present term in Coasting Co. v. Tolson, 139 U. S. -; 11 Sup. Ct. Rep. 653. The defendant seeks to uphold the action of the court in refusing the modification prayed for, by distinguishing the case at bar. It attempts to make two distinctions: (1) That the operation of the rule is confined to cases "where the accident results from any defective arrangement, mismanagement or misconstruction of things over which the defendant has immediate control, and for the management, service and construction of which it is responsible, or where the accident results from any omission or commission on the part of the railroad company with respect to these matters entirely under its control." (2) That the injury from an act of God is established as a fact, wherefore the presumption of negligence from the occurrence of the accident cannot arise. Neither of these attempted distinctions is sound, since, as has been shown, the defect was in the construction of that over which the defendant did have control, and for which it was responsible, and since the slide was not caused by the act of God, in any admissible sense of that phrase. Moreover if these distinctions were sound, still as a matter of correct practice, the modification should have been made. The law is that the plaintiff must show negligence in the defendant. This is done prima facie by showing, if the plaintiff be a passenger, that the accident occurred. If that accident was in fact the result of causes beyond the defendant's responsibility, or of the act of God, it is still none the less true that the plaintiff has made out his prima facie case. When he proves the occurrence of the accident the defendant must answer that case from all the circumstances of exculpation, whether disclosed by the one party or the other. They are its matter of defense. And it is for the jury to say, in the light of all the testimony, and under the instructions of the court, whether the relation of cause and effect did exist, as claimed by the defense, between the accident and the alleged exonerating circumstances. But when the court refuses to so frame the instructions as to present the rule in respect to the prima facie case, and so refuse on either of the grounds by which the refusal is sought to be supported herein, it leaves the jury without instructions to which they are entitled to aid them in determining what were the facts and causes of the accident, and how far those facts were or were not within the control of the defendant. This is error.

discovered that the fastening by which the lamp was attached to the lamp-iron was in a decayed state. The jury found that there had been negligence on the part of the defendant personally; that the lamp was out of repair through general decay, but not to the knowledge of the defendant; that the immediate cause of the fall of the lamp was the slipping of the ladder; but that if the lamp had been in good repair, the slipping of the ladder would not have caused the fall. Upon this it was held by Lush and Quain, JJ., that the plaintiff was entitled to a verdict on the ground that if a person maintains a lamp projecting over the highway for his own purposes, it is his duty to maintain it so as not to be dangerous to persons passing by: and if it causes injuries, owing to a want of repair, it is no answer on his part that he had employed a competent man to repair it. 1 Thomp. Neg. 346, 347. The case of Kearney v. Railroad Co., L. R., 6 Q. B. Div. 759, 762 (in the Exchequer Chamber), cited in the brief of counsel for plaintiff in error, is directly in point. In that case the plaintiff had been injured while walking along a public highway, by a brick which [fell from a pier of the defendant's bridge. A train had just passed, and the counsel for the defendant submitted that there was no evidence of negligence. The court (Kelly, Chief Baron) says: "There can be no doubt that it was the duty of the defendants, who had built this bridge over the highway, to take such care, that where danger can be reasonably avoided, the safety of the public using the highway should be provided for. The question therefore is whether there was any evidence of negligence on the part of the defendants; and by that we all understand such an amount of evidence as to fairly and reasonably support the finding of the jury. The lord chief justice, in his judgment in the court below, said res ipsa loquitur, and I cannot do better than to refer to that judgment. It appears without contradiction that a brick fell out of a pier of the bridge without any assignable cause except the slight vibration caused by a passing train. This we think, is not only evidence, but conclusive evidence, that it was loose; for otherwise so slight a vibration could not have struck it out of its place. * * * The bridge had been built two or three years, and it was the duty of the defendants from time to time to inspect the bridge, and ascertain that the brick-work was in good order, and all the bricks well secured." The principle of these decisions seems to us to be applicable to this case. If such be the law as to persons who, for their own purposes, cause projections to overhang the highway not constructed by them, a fortiori must it be the law as to those who, for their own purposes of profit, undertake to construct the highway itself, and to keep it serviceable and safe, yet who allow it to be practically overhung, from considerations of economy or through negligence. We think the case of Railroad Co. v. Sanger, 15 Gratt. 237, to which we are referred by counsel for plaintiff in error, is strongly illustrative of the principle in this case, to which it bears a close resemblance. Some rocks had been piled up alongside of the track for the purpose of ballast, and some of them got upon the track, causing the injury. In rendering its opinion the court says: Combining in themselves the ownership as well of the road as of the cars and locomotives, they are bound to the most exact care and diligence, not only in the management of the trains and cars, but also in the structure and care of the track, and all the subsidiary arrangements necessary to the safety of the passengers. And as accidents as frequently arise from obstructions on the track as perhaps from any other cause whatever, it would seem to follow, obviously, that there is no one of the duties of a railroad company more clearly embraced within its warranty to carry their passengers safely, as far as human care and foresight will go, than the duty of employing the utmost care and dili

46

Judgment reversed and cause remanded, with direction to order a new trial, and to take further proceedings not inconsistent with this opinion.

BREWER, J., dissented from the opinion and judgment in this case on the ground that it is in contravention of the long-established rules as to what may be considered on an incomplete record.

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AGENCY -SALES LETTER-PRESUMPTION.

MAILING

(1) Defendants' general agent, after being instructed not to add to defendants' stock by purchasing more goods, agreed with plaintiffs, who had knowledge of such instructions, to purchase a quantity of goods from them for defendants, and surreptitiously put them among the stock and sell them, and procure payment from defendants, as he might be able to do, without their knowledge. The goods were so furnished and sold, the proceeds going to defendants. Held, that plaintiffs cannot sue for goods sold and delivered, as there was no valid sale. (2) In an action for goods sold and delivered, where the defense is that the sale was made to defendants' agent, who had no authority to purchase, by collusion between him and plaintiffs, the burden is on the plaintiffs to show both the sale and the authority of the agent, and not on defendants to establish their defense. (3) Where it is usual for the agent, and not the principal, to receive letters containing invoices of goods purchased, the mailing of an invoice, addressed to the principal, of goods sold by collusion with the agent, who had been instructed not to purchase, raises no presumption that the principal knew of the sale. No special instructions were asked by the defendants in respect to this; but the court, of its own motion, charged the jury as follows: "The fact that plaintiffs mailed such letters, whether the defendants received them or not, bears upon the question as to the conduct of the plaintiffs and their good faith in this transaction. It does not affect the defendants unless they received the letters. The fact that a letter is mailed does not, in court, establish the fact that the person it is mailed to received it. That is not proof of that fact. In certain transactions about protesting notes and charging indorsers of commercial paper and things of that sort, the mere fact of mailing a letter answers; but when a party is to be affected with knowledge of what is in the letter, and the contents of it, and what goes with it, they must go further, and prove not only that it was mailed, but that the party to whom it was addressed got it." Of this plaintiffs now complain. Doubtless this instruction is open to criticism. In Rosenthal v. Walker, 111 U. S. 185, 193, it was said: "The rule is well settled that if a letter properly directed is proved to have been either put into the post-office or delivered to the postman, it is presumed, from the known course of business in the post-office department, that it reached its destination at the regular time, and was received by the person to whom it was addressed. Saunderson v. Judge, 2 H. Bl. 510; Woodcock v. Houldsworth, 16 Mees. & W. 124; Dunlop v. Higgins, 1 H. L. Cas. 381; Callan v. Gaylord, 3 Watts, 321; Starr v. Torrey, 22 N. J. Law, 190; Tanner v. Hughes, 53 Penn. St. 289; Howard v. Daly, 61 N. Y. 362; Huntley v. Whittier, 105 Mass. 391.' See also Henderson v. Coke Co., 140 U. S.---. And yet under the circumstances of this case, we cannot think that the jury were misled, or that the instruction was erroneous. Ordinarily where the evidence shows that goods passed into the store of defendants, and were received by their agents, it would be held that a purchase was established; but when, as here, the direct testimony shows that the goods were thus passed into the store of defendants surreptitiously, by collusion with one of their employees, the presumption otherwise existing is overthrown, and by special instructions to divert their attention from the positive testimony as to the circumstances under which the goods were thus placed in the store, to the inference which would arise from the unexplained receipt of the goods, would be very apt to mislead a jury. The attention of

the jury should rather be directed to the direct testimony as to the circumstances under which the goods were passed into the store of the defendants, and to the actual knowledge on the part of the defendants of the receipt of the goods. So while the mailing of a letter creates an inference-raises a presumption-that the party to whom it was addressed received it in due course of mail, and thus acquired knowledge of the matters stated therein, yet such presumption is one of fact, not of law. It is not conclusive, but subject to control and limitation by other facts. The undisputed testimony was that the letters (of which hundreds were received daily) were not taken and examined by the defendants personally, but received and distribuced by their corresponding clerk: that statements of goods purchased for the "cloak department" would, by the custom of business, pass into the hands of Hewes, the party who was engaged in these transactions; and that they should have passed from him, O. K.'d, to the book-keeper; but that none ever did reach the latter. Under those circumstances, to instruct that the mailing of these statements creates a presumption that the defendants personally received them, and were thus notified of the purchases being made by Hewes, would probably have misled the jury, When a letter is duly mailed, a presumption arises that it is delivered; but that presumption is that it is delivered in the usual course of business; and when the usual course of business is for an agent of a party to receive his mail, the presumption is that the agent received it, rather than the principal. Here the testimony shows that the usual course of business sent the letters containing these statements into the hands of Hewes, the wrong-doer; and he testifies that he turned no statements over to his principals, and gave them no information until after the close of these transactions. There is surely no presumption that the ordinary course of business in the establishment of defendants was departed from in the present case. There is no presumption that the defendants themselves received the mail, or distributed it, or that the corresponding clerk in these instances departed from the usual course of business, and handed these special letters to his principals; and an instruction which would lead the jury to suppose that from the fact of mailing all the other presumptions arising from the ordinary course of business in the establishment of defendants were to be ignored, would be incorrect in law, as well as misleading. May 25, 1891. Schutz v. Jordan. Opinion by Brewer, J.

CONSTITUTIONAL LAW - EXCLUSIVE FRANCHISE OBLIGATION OF CONTRACTS.- Where an act of the Legislature has granted to an individual and his assigns the exclusive right of supplying water for a period of years to the inhabitants of a city, from a stream known as "Three-Mile creek," the obligation of the contract thus made is not impaired by the subsequent grant to another of the right to supply the same city with water from streams other than Three-Mile creek. May 11, 1891. Stein v. Bienville Water Supply Co. Opinion by Harlan, J. Affirming 34 Fed. Rep. 145.

FEDERAL COURTS-JURISDICTION-NEGOTIABLE INSTRUMENTS-WAIVER EFFECT OF STATE STATUTE.Under 25 Statutes of United States, 433, chapter 866, section 1, providing that no Federal court shall have cognizance of any suit to recover on a note in the hands of an assignee, unless such suit might have been prosecuted in such court if no assignment or transfer had been made, a Circuit Court has no jurisdiction of an action by an assignee of a note payable to the payee's order, where the record fails to show the citizenship of the original payee. It was settled by many decisions

under the act of 1789, that a Circuit Court of the United States had no jurisdiction of a suit brought

against the maker by the assignee of a promissory note payable to order, unless it appeared affirmatively that it could have been maintained in that court in the name of the original payee. Turner v. Bank, 4 Dall. 8, 11; Montalet v. Murray, 4 Cranch, 46; Gibson v. Chew, 16 Pet. 315, 316; Coffee v. Bank, 13 How. 183, 187; Morgan's Ex'r v. Gay, 19 Wall. 81, 82. There were these recognized exceptions to that general rule in its application to promissory notes: (1) That an indorsee could sue the indorser in the Circuit Court, if they were citizens of different States, whether a suit could have been brought or not by the payee against the maker; for the indorsee would not claim through an assignment, but by virtue of a new contract between himself and the indorser. Youug v. Bryan, 6 Wheat. 146, 151; Mollan v. Torrance, 9 id. 537, 538. (2) The holder of a negotiable instrument payable to bearer or to a named person or bearer could sue the maker in a court of the United States, without reference to the citizenship of the original payee or original holder, because his title did not come to him by assignment, but by delivery merely. Bank v. Wister, 2 Pet. 318, 326; Thompson v. Perrine, 106 U. S. 589, 592, and authorities there cited. There can be no claim that the present case is within either of those exceptions. The authorities we have cited are conclusive against the right of the plaintiff to maintain this suit in the court below, unless it appeared that the original payee, Lamb, could have maintained a suit in that court upon the note and coupons. Consequently it was necessary that the record should, as it does not, disclose his citizenship. Metcalf v. Watertown, 128 U. S. 586; Stevens v. Nichols, 130 id. 230; Chehore v. Railway Co., 131 id. 240, 243; Rollins v. Chaffee Co., 34 Fed. Rep. 91. If it be true, as stated in an affidavit filed below, that Lamb was, at the commencement of the suit, a citizen of Nebraska, clearly the court below was without jurisdiction, for all the defendants are alleged to be citizens of that State. May 25, 1891. Parker v. Ormsby. Opinion by Harlan, J.

INSURANCE-RE-INSURANCE ON EXCESS CONTRACT -LOCAL CUSTOM.-(1) Plaintiff issued to defendant an open policy of re-insurance indorsed, "To apply to the excess which the said company may have in all their various policies over $50,000, and to apply pro rata with all re-insurance policies on same excess, but not to exceed $10,000." Held, that defendant, having reinsured with plaintiff the excess of its risks over $50,000, had the right to re-insure the $50,000 with other companies. It was not bound itself to carry $50,000. (2) A local usage cannot affect a contract made elsewhere. May 25, 1891. Insurance Company of North America v. Hibernia Insurance Company of New Orleans. Opinion by Gray, J.

NATIONAL BANKS-LIABILITY OF DIRECTORS-NEGLIGENCE-RESIGNATION.—(1) Revised Statutes of the United States, section 5145, providing that directors of National banks shall hold office for one year, and until their successors have been elected and qualified, does not prohibit resignations within the year. (2) Since the National Banking Law is silent as to the time when and method by which a director may resign, the common law governs, and where a director verbally resigns to the president, to whom he at the same time sells his stock, giving a power of attorney to transfer it on the books of the bank, which is done, the resignation is effective to release the director from responsibility for the subsequent conduct of the bank's affairs. (3) The president and director of a National bank, who is absent on account of ill-health under a leave of absence granted by the board of directors, cannot be held liable for the negligent management of the bank during his absence. (4) Where the affairs of a bank are managed by its president, who has the

reputation of being trustworthy and efficient, and who owns the greater part of the stock, and the bank is generally considered to be in a prosperous condition, directors cannot be held liable for losses through mismanagement on the ground of negligence, in that they did not, within ninety days after they became directors, compel the board of directors to make a thorough investigation of the books and condition of the bank. May 25, 1891. Briggs v. Spaulding. Opinion by Fuller, C. J. Harlan, Gray, Brewer and Brown, JJ., dissenting.

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TELEGRAPH COMPANIES -- CONSTITUTIONAL LAW MONEY PAID INTO COURT- APPLICA

TION-INTEREST.-(1) The fact that the Western Union Telegraph Company, a corporation organized under the laws of New York, acquired from the United States (R. S., § 5263) the right to construct and operate lines over any portion of the public domain, along any railway or post-road, and across the navigable waters of the United States, does not prevent its being liable to taxation under Public Statutes of Massachusetts, chapter 13, section 40, providing that every telegraph company owning a line in the State shall be taxed on such proportion of the whole value of its capital stock as the length of its line in the State bears to the whole length of its line everywhere, after deducting the value of any property owned by it subject to local taxation in the cities and towns of the State. (2) Such tax is not in violation of the inter-State commerce clause of the Constitution. (3) Said statute provides that such tax may be recovered, with twelve per cent interest until paid. Held, that where the company admitted its liability for a certain amount, and paid such amount with twelve per cent interest and costs into court, it should on the rendering of a judgment for a greater amount be applied to that part of the principal and interest admitted to be due, and interest at twelve per cent should then be computed to the time of the decree on the balance of the principal, and thereafter interest should be at the legal rate. May 11, 1891. Attorney-General of Commonwealth of Massachusetts v. Western Union Telegraph Co. Opinion by Gray, J. Field and Harlan, JJ., dissenting.

NEW YORK COURT OF APPEALS ABSTRACTS.

EVIDENCE-EXPERT TESTIMONY AS TO DATE OF RECEIPT.-The testimony of an expert is admissible to show whether a certain receipt is dated "Jany" or "July." The principle involved is whether it may be shown what the word in a written instrument is. To a person or a juror, if we may suppose the latter case, who can neither read nor write, it is indispensable that some one who can should be allowed to testify what the words are. This course would be necessary in such case however plainly written or printed the word might be. Upon the same principle it is allowable for the jurymen, who are perhaps only moderately skilled in letters and words, to determine what the letters and characters are and what word they make. The jurors may do this from the knowledge they already possess, and such as they gain during the trial by the reading and comparison they make with other writings already introduced in evidence. Indeed the court held in the opinion in this case at General Term that the jury might compare the receipt in question with the dates and letters in the note and the other writings to determine the date of the receipt. If such comparison may be made by unskilled jurymen, why should they not be aided and enlightened, as they may be in analogous cases of the genuineness of handwriting, alterations and simulations, by men who have made the subject

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