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is appointed to an office legaily existing. Such cases apply only to the invalidity, irregularity, or unconstitutionality of the mode by which a party is appointed or elected to a legally existing office. Where an office has been lawfully created, the acts of an incumbent who holds it improperly, will be considered valid, as being the acts of an officer de facto. But there cannot be an officer de facto where no office de jure is provided for. Before one can claim to be a de facto officer of the law, there must be a law creating the office. The office itself must bejone de jure. The officer may then be one de facto. There can be no officer either de jure or de facto, if there be no office to fill."

The most conclusive and compact argument against the existence of a de facto office or a de facto officer without a de jure office is found in the dissenting opinion of Judge Mitchell in Burt v. Winona & St. P. R. Co., 31 Miun. 472, where he is reported as saying: "As suggested in the opinion, the de facto doctrine is founded on reasons of public policy and necessity, but it must have some reasonable limit unless we are ready to recognize practical revolution and legislative right to ignore all constitutional barriers." This is put with all the terseness and vigor which characterize his arguments on the bench. If there can be a de facto office held by a de facto officer, then the Legislature can break down the barriers within which the sovereign people have intrenched themselves and encroach with impunity for a season upon their reserved power, for until the State has unseated the officer by a direct proceeding for that purpose, the person claiming to be officer can according to some decisions and dicta exercise without authority the functions of an office which the people have never created, their agents in assuming to call it into existence having over-passed the bounds of their authority. To recognize even for the "twentieth part of one poor" second, an office which has never been constitutionally created is "practical revolution," not perhaps of very serious kind; but the principle is the same, although the defiance of the will of the people, as embodied in their Constitution, be trival. Vested with authority from the people to keep the law making power within its lawful sphere, it is the duty of the judiciary to prevent "practical revolution," and to write the judgment of its condemnation of such a pretended office whenever and under whatsoever circumstances the question may arise. GUY C. H. CORLISS.

GRAND FORKS, DAKOTA.

CRIMINAL PROCEDURE-JOINDER OF MISDEMEANORS-DISTINCT SALES OF INTOXICATING LIQUORS.

NEW YORK SUPREME COURT, GENERAL TERM, FOURTH DEPARTMENT, NOVEMBER, 1887.

PEOPLE V. O'DONNELL.

An indictment charged separate and distinct sales, to different persons, at different dates, of strong and spirituous liquors, in quantities less than five gallons at a time, to be drunk on the premises. Held bad under Code Crim Proc., $$ 278, 279.

George P. Pudney, for respondent.

John W. Church, for appellant.

MARTIN, J. The question involved in this action arises upon a demurrer to an indictment against the defendant, for selling strong and spirituous liquors in quantities less than five gallons at a time, to be drunk on his premises, without having a license therefor. The

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demurrer was on the ground that more than one crime was charged in the indictment. The indictment alleged sales by the defendant on March 1, 1885, at the town of McDonough, Chenango county, N. Y., to several persons named; also sales at the same place August 26, 1885, to certain other persons named; aud sales made on the 12th day of September aud on the 28th day of July, 1885, at the same place to still other persons named in the indictment.

Before the enactment of the Code of Criminal Procedure, an indictment was not bad because of the joinder of separate and distinct misdemeanors. al. though followed by different penalties, and a general judgment upon it was good where the sentence was single and appropriate to either of the counts, upou which a conviction was had. People v. Dunn, 90 N. Y. 107.

But the Code of Criminal Procedure provides that the indictment must charge but one crime and in one form, except the crime may be charged in separate counts to have been committed in a different manner or by different means, and when the acts complained of may constitute different crimes, such crimes may be charged in separate counts. Code Crim. Proc., S$ 278, 279.

Even since the adoption of the Code, when the act complained of may constitute different offenses, such such offenses may be charged in separate counts of the indictment. People v. Infield, 1 N. Y. Cr. R. 146; People v. Kelly, 3 id. 273. So an indictment, containing varying allegations in different counts as to the manner and means of the commission of the crime, but which shows upon its face that those counts relate to but one and the same transaction, is good. People v. Cole, 2 N. Y. Cr. R. 108. The indictment may also state the acts constituting the crime in different counts, appropriate to meet the evidence which may be presented on the trial. People v. Menkin, 3 N. Y. Cr. R. 283.

In the case at bar the indictment charged the illegal sale of spirituous liquors on at least four different occasions, and upon each occasion to entirely different persons. Each of these charges is made as an inde pendent charge or count in the indictment. The indictment not only does not show upon its face that these separate counts relate to the same transaction, but does show quite conclusively that each was a separate and distinct transaction. This indictment was we think obnoxious to the objection that it charged more than one crime. This view is sustained by the case of the People v. Upton, 4 N. Y. Cr. R. 455. In that case the indictment in separate counts charged the defendant, an officer of a bank, with the offense of overdrawing his account in different amounts and upon different dates. It was there held that the indictment was subject to the objection that it charged more than one offense, and was in violation of the prohibition of section 278, and for that reason was demurrable. It is true it was held in that case, that the defendant had waived the misjoinder by his appearance and plea of not guilty. In this case the plea of not guilty was withdrawn and the objection was raised by demurrer, as provided by section 323, subdevision 3, Code of Criminal Procedure. The indictment in that case was for a misdemeanor. Penal Code, § 100. The crimes charged in the indictment in this case are also misdemeanors.

We are of the opinion that the indictment in this case charged more thau one crime, that it was demurrable on that ground, and that the court erred in overruling such demurrer.

[Omitting a minor question.]

For the error above pointed out the judgment and conviction should be reversed and the prisoner discharged.

NEGOTIABLE INSTRUMENTS-BANK CHECK -WHAT CONSTITUTES-NEGOTIA

BILITY-LACHES.

UNITED STATES SUPREME COURT, OCT. 31, 1887.

BULL V. FIRST NAT. BANK OF KASSON.

An order for money drawn by one bank on another bank is a bank check, and not a bill of exchange.

The addition of the words, "in current funds," in a bank check does not impair its negotiability. Delay upon the part of a bona fide holder for value of a bank check, drawn by a bank in one State upon a bank in another, in presenting it for payment, does not affect the non-availability of set-off as between such holder and the drawer, where the funds upon which the check was drawn were still in the hands of the drawee when payment was demanded.

IN

N error to the Circuit Court of the United States for the District of Minnesota.

This case comes before this court on a certificate of division of opinion between the Circuit and District judges holding the Circuit Court of the United States for the District of Minnesota. The action was upon two drafts, or bills of exchange (as they are termed in the record), each for $500, drawn by the First National Bank of Kasson, in Minnesota, upon the Ninth National Bank, in New York city, and payable to the order of R. La Due, of which the following are copies:

**$500. THE FIRST NATIONAL BANK, KASSON, MINN., October 15, 1881.

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'No. 18,754.

E. E. FAIRCHILD, Cashier.

To Ninth National Bank, New York City. "[Indorsed:] Pay to the order of M. Edison, Esq. "A. LA DUE. "M. EDISON."

The draft or bills of exchange were, immediately after their execution, transferred by indorsement of the payee to one M. Edison, at Kasson, Minnesota. Edison was at the time largely indebted, and on the following day he absconded from Kasson, carrying the drafts with him. These drafts he retained in his possession until March 24, 1882, when at Quincy, in Illinois, he sold and indorsed them for a valuable consideration to the plaintiffs, who had no notice of any set-off to them. The plaintiffs then forwarded them to New York city, where on the 27th of March they were presented for payment to the drawee, the Ninth National Bank of New York, and payment was refused by it. The drafts were then protested for nonpayment, and notice thereof given to the drawer and indorsers. In the meantime the First National Bank of Kasson, the drawer of the drafts, had become the owner of certain demands against Edison, which under the statute of Minnesota could be legally set off against its liability on the drafts in the hands of Edisou, and also in the hands of the plaintiffs, unless they were protected against such set-off as innocent purchasers of the paper before maturity, and without notice of the set-off. At the time the drafts were drawn, and at the time of their presentation for payment, the

Ninth National Bank of New York had in its hands money of the drawer sufficient to pay them.

The action was tried by the court without the intervention of a jury by stipulation of parties, and the facts stated above are embodied in its findings. Upon these facts the following questions of law arose, viz. Whether the said drafts, or bills of exchange, were to be regarded as overdue and dishonored paper at the time they were presented by the plaintiffs to the drawee for payment, and payment refused, so as to admit the set-off. Upon this question the judges were divided in opinion, and upon motion of plaintiffs, it was certified to this court for decision. The Circuit judge who presided at the Circuit, being of opinion that the question should be answered in the affirmative, ordered judgment for the defendant. To review this judgment, upon the certificate of division of opinion, the case is brought here on writ of error. William McFadon, for plaintiffs in error.

C. C. Willson, for defendant in error.

FIELD, J. In the record the ins.ruments upon which the action is bronght are designated as " drafts or bills of exchange." In a general sense, they may be thus designated, for they are orders of one party upon another for the payment of money, which is the essential characteristic of drafts or bills of exchange. They are also negotiable, and pass by delivery, and are within the description of instruments of that character in the act of March 3, 1875, prescribing the jurisdiction of Circuit Courts of the United States. But in strictness, they are bank checks. They have all the particulars in which such instruments differ or may differ from regular bills of exchange. They are drawn upon a bank having funds of the drawer for their payment, and they are payable upon demand, although the time of payment is not designated in them. A bill of exchange may be so drawn, but it usually states the time of payment, and days of grace are allowed upon it. There are no days of grace upon checks. The instruments here are also drawn in the briefest form possible in orders for the payment of money, which is the usual characteristic of checks. A bill of exchange is generally drawn with more formality, and payment at sight, or at a specified number of days after date, is requested, and that the amount be charged to the drawer's account. When intended for transmission to another State or country, they are usually drawn fin duplicate or triplicate, and designated as first, second or third of exchange. A regular bill of exchange, it is true, may be in a form similar to a bank check, so that it may sometimes be difficult from their form to distinguish between the two classes of instruments. But when the instrument is drawn upon a bank, or a person engaged in banking business, and simply directs the payment to a party named of a specified sum of money, which is at the time on deposit with the drawee, without designating a future day of payment, the instrument is to be treated as a check rather than as a bill of exchange, and the liability of parties thereto is to be determined accordingly. If the instrument designates a future day for its payment, it is, according to the weight of authorities, to be deemed a bill of exchange, when without such designation it would be treated as a check. Bowen v. Newell, 8 N. Y. 130.

The instruments upon which the action is brought being bank checks, the liability of the parties is determinable by the rules governing such paper. A check implies a contract on the part of the drawer that he has funds in the hands of the drawee for its payment on presentation. If it is dishonored, the drawer is entitled to notice; but unlike the drawer of a bill of exchange, he is not discharged from liability for the want of such notice unless he has sustained

damage, or is prejudiced in the assertion of his rights by the omission.

In Bank v. Bank this court said: "Bank checks are not inland bills of exchange, but have many of the properties of such commercial paper, and many of the rules of the law-merchant are alike applicable to both. Each is for a specific sum payable in money. In both cases there is a drawer, a drawee and a payee. Without acceptauce, no action can be maintained by the holder upon either against the drawee. The chief points of difference are that a check is always drawn on a bank or banker. No days of grace are allowed. The drawer is not discharged by the laches of the holder in presentment for payment, unless he can show that he has sustained some injury by the default. It is not due until payment is demanded, and the statute of limitations runs only from that time. It is by its face the appropriation of so much money of the drawer in the hands of the drawee to the payment of an admitted liability of the drawer. It is not necessary that the drawer of a bill should have funds in the hands of the drawee. A check in such case would be a fraud." 10 Wall. 647.

Similar language is used by Mr. Justice Story with reference to the time when checks are to be regarded as due. In stating the difference in point of law between checks and bills of exchange, he refers to the rule that a bill of exchange taken after the day of payment subjects the holder to all the equities attaching to it in the hands of the party from whom he receives it. "But," he adds, "this rule does not apply to a check; for it is not treated as overdue, although it is taken by the holder some days after its date, and it is payable on demand. On the contrary, the holder in such a case takes it subject to no equities of which he has not at the time notice, for a check is not treated as overdue merely because it has not been presented as early as it might be, or as a bill of exchange is required to be, to charge the drawer or indorser or transferrer. One reason for this seems to be, that strictly speaking, a check is not due until it is demanded." Prom. Notes, § 491. See also In re Brown, 2 Story, 502, 513.

Accepting these citations as correctly stating the law, the question presented for our decision is readily answered. The drawer was in no way injured or prejudiced in his rights by the delay of Edison to present the checks. The funds against which they were drawn remained undisturbed in the hands of the drawee, and therefore the drawer had no cause of complaint. The instruments in suit were not overdue and dishonored when presented for payment. Until then the plaintiffs, as purchasers for a valuable consideration without notice of any demand against Edison, in the hands of a drawer, were protected against its set-off.

The certificate of division of opinion presents to us only one question, and yet to answer that correctly, we must consider whether the negotiability of the instruments in suit was affected by the fact that they were payable in current funds." Undoubtedly it is the law, that to be negotiable, a bill, promissory note or check must be payable in money, or whatever is current as such by the law of the country where the instrument is drawn or payable. There are numerous cases where a designation of the payment of such instruments in notes of particular banks or associations, or in paper not current as money, has been held to destroy their negotiability. Irvine v. Lowery, 14 Pet. 293; Miller v. Austin, 13 How. 218, 228.

But within a few years, commencing with the first issue in this country of notes declared to have the quality of legal tender, it has been a common practice of drawers of bills of exchange or checks, or makers of promissory notes, to indicate whether the same are

to be paid in gold or silver, or in such notes; and the term "current fund" has been used to designate any of these, all being current, and declared by positive enactment to be legal tender. It was intended to cover whatever was receivable and current by law as money, whether in form of notes or coin. Thus construed, we do not think the negotiability of the paper in question was impaired by the insertion of those words.

It follows from these views that the question certified to us must be answered in the negative. The judgment will therefore be reversed and the cause remanded, with directions to enter judgment for the plaintiffs upon the findings; and it is so ordered.

NEW YORK COURT OF APPEALS ABSTRACT.

APPEAL WHAT REVIEWABLE - RECORD. It appeared from the record that a motion was made before the trial court for a new trial, on the minutes of the court, under Code Civil Proc. N. Y., § 999, providing that a trial judge may, in his discretion, entertain a motion made upon his minutes at the same term, to set aside the verdict and graut a new trial, upon exceptions, or because the verdict is for excessive or insufficient damages, or otherwise contrary to evidence or contrary to law. It also appeared that such motion was denied, and the order of denial was reversed by the General Term, but nothing further appeared to show the grounds of the motion, or of the decision of the General Term. Held, that the Court of Appeals cannot review the decision, as it may have been made on questions of fact. Oct. 18, 1887. Harris v. Gere. Opinion by Earl, J.

JUDGE · DISQUALIFICATION POWER TO SIT IN GENERAL TERM-APPEAL-DISCRETION.-(2) A certain order requiring a person to appear and submit to an examination was made by Judge Van Brunt. Thereafter defendant applied to Judge Patterson at chambers for an order vacating Judge Van Brunt's order, which order was made by Judge Patterson, and from this order plaintiff appealed to the General Term, which reversed Judge Patterson's order, and reinstated that of Judge Van Brunt. The General Term was composed of Judge Van Brunt, Daniels and Bartlett. From this decision defendant appealed. Held, that the order under review was a decision by Judge Patterson, and not by Judge Van Brunt, and the latter was not disqualified to sit in the General Term by reason of Const. N. Y., art. 6, 3 8, which provides that no judge shall sit in the General Term or in the Court of Appeals in review of a decision made by him, or of any court at which he was at the time a sitting member. (2) An examination of a defendant upon order is a matter resting in the discretion of the General Term, and the order will not be reviewed by the Court of Appeals. Oct. 18, 1887. Philips v. Germania Mills. Opinion by Earl, J.

JURY

- RIGHT TO TRIAL BY-EQUITY.- Plaintiff had brought an action at law against a life insurance company. The company paid the money into court, and set up that defendant's intestate also claimed the money. The court required the plaintiff to substitute the defendant's intestate as defendant in order to determine the conflicting claims to the fund in court. Held, that this was an equity case triable by the court, and that the judge could impanel a jury to try a question of fact, and that he could disregard the finding of the jury, and find the fact the contrary way. Oct. 11, 1887. Clark v. Mosher. Opinion by Rapallo, J. MORTGAGE - -FORECLOSURE-SURPLUS PARTIES- PLEADING AND PROOFS STATUTE OF LIMITATION -NEW APPEAL- PRESUMPTIONS. (1) A

TRIAL

purchaser at a foreclosure sale sought to recover the surplus which had been deposited with the clerk nine years before he brought the suit. The mortgagor had made no claim to the surplus. Held, that the real party in interest - the mortgagor was not before the court. (2) The evidence showed that there was a surplus of $2,497.18 arising from the sale, which was deposited by the referee with the clerk of Kings county, and the collector of taxes of the defendant town received therefrom the sum of $2,197.82, under a warrant issued to him by the supervisors of Kings county, and applied it upon a warrant held by him for the collection of an assessment for grading Atlantic avenue, which was subsequently adjudged to be illegal and void. Subsequently plaintiff paid a valid assessment for grading Atlantic avenue amounting to $1,000. Held, that such surplus money belonged to the mortgagor, or the owner of the equity of redemption, and not to the purchaser at the mortgage sale. (3) On these facts plaintiff alleged in his complaint that $1,499.93 of the sum received by the collector belonged to him. The theory of the court below was that the decree of foreclosure required all assessments on the property to be paid out of the purchase-money, and that a valid assessment of $1,499.93 remained, until paid by plaintiff; that the defendant had taken money which was devoted to the payment of valid assessments by the judgment decree; that it became equitably liable to avoid circuity to repay the plaintiff what he had paid to redeem his land. Held, that this cause of action was not presented by the pleadings nor tried or determined by the trial court. (4) That the action was barred by the statute of limitations. (5) In the trial court defendant had a verdict. An appeal was taken, and the General Term reversed the judgment and ordered a new trial. The order of reversal did not state that it was made on questions of fact. Held, that it must be assumed that it was made upon questions of law only which could be sustained by some valid exception taken only upon the trial. (6) No exceptions having been taken upon the trial, the judgment rendered by the trial court was unassailable upon any legal ground. (7) The judgment-roll in the foreclosure case was neither set forth in the pleadings in this case not proved nor produced on the trial, and did not appear in the record of the case. was produced on the argument before the court below, where the judgment of the trial court was reversed. Held, that a record can be produced upon the argument in an appellate court only for the purpose of sustaining a judgment. (8) The judgment-roll was inadmissible under the pleadings, and yet it was a material fact in the view taken by the General Term, when they reversed the judgment of the trial court. Held, that it is the duty of an appellate court to indulge all reasonable presumptions in support of the judgment of trial courts, and to assume that they considered the roll if it was in evidence. Oct. 11, 1887. Day v. Town of New Lots. Opinion by Ruger, C. J. VENDOR'S LIEN -BURDEN OF SHOWING FRAUD. As between an assignee of a mortgage, taken by the original mortgagee with notice of an outstanding vendor's lien, and the unpaid vendor in possession at the date of the assignment, seeking to enforce his lien, and charging fraud on the part of the vendee in putting the deed on record, the burden of alleging and proving innocence and good faith is upon the assignee, and in the absence of such pleading and proof his mortgage will be postponed to the lien. The defendant Sabey moves for a reargument. It appeared in the case before us that McKinstry had from the beginning, and before the execution of the mortgage, full notice of the plaintiff's rights, and was so affected by it that in his hands the mortgage would be

LIEN

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invalid as against the vendor's lien. As assignee, Sabey is no better off than, and is affected by all the equities which affect McKinstry. Decker v. Boice, 83 N. Y. 215; De Lancey v. Stearns, 66 id. 157; Schafer v. Reilly, 50 id. 61; Bush v. Lathrop, 22 id. 535; Davis v. Bechstein, 69 id. 440. As a purchaser his case, under the recording act, if that act applies, might be better than that of McKinstry. If so, it would be because his assignment was not only recorded, but his legal title to the mortgage is based upon an actual pecuniary consideration, and upon the absence of notice. Decker v. Boice, supra; 1 Rev. Stat. 756, § 7. But the character of "purchaser" under the statute is an independent one, something different from that of assignee, and to avail the defendant it was necessary to plead and prove not only that he was a purchaser" of record, but that he was a purchaser in good faith and for a valuable consideration. He was bound therefore to deny by his answer notice, although notice had not been charged, and to prove it. These matters were new and in defense. The duty of setting them up and the burden of proving them were therefore upon him, and because he did not so plead and had not proved those things, the judgment of the court below was sustained. No new rule was applied, but a very old one, which requires a defendant, who would avail himself of new matter as a defense, to aver and prove it, and which has been illustrated to the present day and through various systems of equitable procedure. Grimstone v. Carter, 3 Paige, 421, 436, 437; Jewett v. Palmer, 7 Johns. Ch. 65; Tuttle v. Jackson, 6 Wend. 213, 227, 228; Jackson v. McChesney, 7 Cow. 360, 362; Weaver v. Barden,49 N. Y. 286, motion denied. Oct. 11, 1887. Seymour v. McKinstry. Opinion by Danforth, J. MUNICIPAL CORPORATIONS CLAIMS AGAINST PRESENTATION OF.- A claim for damages against a municipal corporation on account of negligence is not governed by the provisions of section 3245, Code Civil Proc., which provides that "costs cannot be awarded to the plaintiff in an action against a municipal corporation in which the complaint demands a judgment for a sum of money only, unless the claim upon which the action is founded was before the commencement of the action presented for payment to the chief fiscal officer of the corporation." The section above referred to applies only to actions arising ex contractu. In Gage v. Village of Hornellsville, 106 N. Y. 667, decided in this court July 1, 1887, it was held that there was no substantial distinction between section 2 of chapter 262 of the Laws of 1859, and section 3245 of the Code of Civil Procedure. It has been frequently held in this court, in cases arising under the statute of 1859, that it does not apply to actions ex delicto, and that the notice therein referred to was not required as the condition of a right to recover costs by the plaintiff in such actions. The precise question involved in this case came before us in Gage v. Hornellsville, and we there held that section 3245 of the Code of Civil Procedure applied only to actions arising ex contractu. While this result was strongly intimated in Taylor v. Cohoes, 105 N. Y. 54; 11 N. E. Rep. 282, it was not expressly so decided, and thus left room for misapprehension upon the question here involved. Gage v. Village of Hornellsville was decided July 1, the same day that this case was determined by the General Term, and they could not have been informed of our decision, otherwise we are bound to presume their judgment would have been the reverse of that rendered by them. Oct. 18, 1887. Hunt v. City of Oswego. Opinion by Ruger, C. J.

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agement of a bridge between New York and Brooklyn, for the appointment of trustees by the two cities to complete and manage the bridge, and that it, with its appurtenances and revenues, should belong to the two cities jointly. Plaintiff, being on a highway in New York, was injured by a plank dropped by a workman engaged in the erection of the bridge. Held, that the trustees and their employees were the agents and servants of both cities, which were liable for their careless and negligent acts. People v. Kelly, 76 N. Y. 475, and Walsh v. Trustees, 96 id. 437. Oct. 18, 1887. Walsh v. Mayor of New York. Opinion by Earl, J.

UNITED STATES SUPREME COURT ABSTRACT.

BANK TAXATION CONSTITUTIONALITY. The fact that under the act of Congress the capital of national banks can be taxed by the States in no other way than by an assessment upon the shares of that capital held by individuals, does not render unconstitutional the Iowa statute which taxes savings banks in that State on the amount of their paid-up capital, and does not tax the shares of those banks held by individual shareholders, the same rate per cent being assessed upon the capital of the saving banks as upon the shares of the national banks, and it not appearing that the tax upon the former is not as great as that upon the latter. It is strongly urged that in no other mode than by taxing the stockholders of each and all the banks can a perfect equality of taxation be obtained. The argument is not conclusive, if the proposition were sound; for the act of Congress does not require a perfect equality of taxation between State and national banks, but only that the shares of the national banks shall not be taxed at a higher rate than other moneyed capital in the hands of individuals. That this does not mean entire equality is evident from the fact that if the capital of the national banks were taxed at a much lower rate than other moneyed capital in the State, the banks would have no right to complain, and the law in that respect would not violate the provisions of the act of Congress for the protection of national banks. It has never been held by this court that the State should abandon systems of taxation of their own banks, or of money in the hands of their other corporations, which they may think the most wise and efficient modes of taxing their own corporate organization, in order to make that taxation conform to the system of taxing the national banks upon the shares of their stock in the hands of their owners. All that has ever been held to be necessary is that the system of State taxation of its own citizens, of its own banks, and of its own corporations shall not work a discrimination unfavorable to the holders of the shares of the national banks. Nor does the act of Congress require any thing more than this; neither its language nor its purpose can be construed to go any further. Within these limits, the manner of assessing and collecting all taxes by the State is uncontrolled by the act of Congress. If neither the necessary, usual, or probable effect of the system of assessment discriminates in favor of the savings banks against the national banks upon the face of the statute, nor any evidence is given of the intention of the Legislature to make such a discrimination, nor any proof that it works an actual and material discrimination, it is not a case for this court to hold the statute unconstitutional. The whole subject has been recently considered by this court in the case of Bank v. New York, 121 U. S. 138. In that opinion it was held that while the deposits in the savings banks of New York constituted moneyed capital in the hands of individuals, yet it was clear that they were not within the meaning of the act of Congress in such a

sense as to require that because they were exempted from taxation the shares of stock in national banks must also be exempted. The reason given for this is that the institutions generally established under that name are intended for the deposits of the small savings and accumulations of the industrious and thrifty; that to promote their growth and progress is the obvious interest and manifest policy of the State; and as was said in Hepburn v. School District, 23 Wall. 480, it could not have been the intention of Congress to exempt bank shares from taxation because some moneyed capital was exempt. It is unnecessary to inquire whether the savings banks of Iowa are based upon principles similar to those of New York, which were the subject of the opinion in Bank v. New York. for while in that case the savings banks were exempt from taxation, the Iowa statute imposes a tax upon them equal to that imposed upon the shares of the national banks. The whole subject is so fully reviewed and reconsidered in that opinion, delivered less than a year ago, that it would be but a useless repetition to go further into the question. Oct. 31, 1887. Davenport Nat. Bank v. Board of Equalization. Opinion by Miller, J.

INSURANCE-STEAM-BOATS-PERILS OF NAVIGATION -NEGLIGENCE OF CAPTAIN-DEFECTIVE MACHINERY

TOTAL LOSS.- (1) Upon the arrival of the insured steam-boat at Louisville, Kentucky, it was found that the joint of the mud-valve was out of order. Steam was blown off to make repairs, and upon the return of the captain, who knew that repairs were going on, there was not sufficient steam to propel the vessel, The captain, without inquiring as to the condition of the steam, according to the custom of the river, gave the signal to let go. This was done, and the boat was carried by the current down the river, and over the falls, and striking a pier, was sunk, and abandoned as a total loss. At the time of the accident the vessel was in a position to be carried over the falls if she was let go without steam on. Held, that the proximate cause of the loss being a peril of the river against which the vessel was insured, the misconduct of the master was no defense to an action on the policy, in the absence of proof that it was affected by fraud or design. In Insurance Co. v. Lawrence, 10 Pet. 517, which was a case of insurance against fire on land, the court said that "a loss by fire, occasioned by the mere fault or negligence of the assured, or his servants or agents, and without fraud or design, is a loss within the policy, upon the general ground that the fire is the proximate cause of the loss, and also upon the general ground that the express exceptions in policies against fire leave this within the scope of the general terms of such policies." In the subsequent case of Waters v. Insurance Co., 11 Pet. 224, it was said in reference to the case of Insurance Co. v. Lawrence, that "the court then thought that in marine policies, whether containing the risk of barratry or not, a loss whose proximate cause was a peril insured against, 18 within the protection of the policy, notwithstanding it might have been occasioned remotely by the negligence of the master and mariners." To the same effect are Insurance Co. v. Coulter, 3 Pet. 237: Insurance Co. v. Sherwood, 14 How. 352, and Insurance Co. v. Transportation Co., 117 U. S. 325. But it is insisted that the court should have granted the request of the company, to the effect that it was not liable if the accident and loss were caused by the "misconduct" of the master. Had that request been granted, in the form asked, the jury might have supposed that the company was relieved from liability if the master was chargeable with what is sometimes described as gross negligence, as distinguished from simple negligence. Hence the court properly said, in effect, that the misconduct of the master, unless affected by fraud or de

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