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is appointed to an office legaily existing. Such cases demurrer was on the ground that more than one crime apply only to the invalidity, irregularity, or uncon- was charged in the indictment. The iudictment alstitutionality of the mode by which a party is appoin. | leged sales by the defendant ou March 1, 1885, at the ted or elected to a legally existing office. Where an town of McDonough, Chenango county, N. Y., to office has been lawfully created, the acts of an incum- several persons named; also sales at the same place bent who holds it improperly, will be cousidered valid, August 26, 1885, to certaiu other persons named; aud as being the aots of au officer de facto. But there can- sales made on the 12th day of September and on the not be an officer de facto where no office de jure is provi- 28th day of July, 1885, at the same place to still other ded for. Before one can claim to be a de facto officer of persons named in the iudictment. the law, there must be a law creating the office. The Before the enactment of the Code of Criminal Prooffice itself must befone de jure. The officer may then cedure, an indictment was not bad because of the be one de facto. There can be no officer either de jure joinder of separate and distinct misdemeanors. al. or de facto, if there be no office to fill."

though followed by different penalties, and a general The most conclusive and compact argument against judgmeut upon it was good where the sentence was the existence of a de facto office or a de facto officer single and appropriate to either of the counts, upon without a de jure office is found in the dissenting which a courictiou was had. People v. Dunn, 90 N. opiniou of Judge Mitchell in Burt v. Winona & St. P. Y. 107. R. Co., 31 Miun. 472, where he is reported as But the Code of Criminal Procedure provides that saying: " As suggested in the opinion, the de the indictment must charge but one crime and in one facto doctrine is founded on reasons of public policy form, except the crime may be charged in separate and uecessity, but it must have some reasonable limit counts to have been committed in a different manner unless we are ready to recognize practical revolution or by different means, and when the acts complained and legislative right to ignore all constitutional bar. of may constitute different crimes, such crimes may riers." This is put with all the terseness and vigor be charged in separate counts. Code Crim. Proc., which characterize his arguments on the bench. If $ 278, 279. there can be a de facto office held by a de facto officer, Even since the adoption of the Code, wben the act then the Legislature can break down the barriers complained of may constitute differeut offeuses, such within which the sovereign people have intrenched such offenses may be charged in separate counts of themselves and encroach with impunity for a season the indictment. People v. Infield, 1 N. Y. Cr. R. 146; upon their reserved power, for until the State has un- People v. Kelly, 3 id. 273. So an indictment, containseated the officer by a direct proceeding for that pur- | ing varying allegations in different counts as to the pose, the person claiming to be officer can according manner and means of the commission of the crime, to some decisions and dicta exercise without author- but which shows upon its face that those counts relate ity the functions of an office which the people have to but one and the same transaction, is good. People never created, their agents in assuming to call it into v. Cole, 2 N. Y. Cr. R. 108. The iudictment may also existence having over-passed the bounds of their state the acts constituting the crime in different authority. To recognize even for the “twentieth part counts, appropriate to meet the evidence which may of one poor” second, an office which has never been be presented ou the trial. People v. Menkin, 3 N. Y. constitutionally created is " practical revolution,” not Cr. R. 283. perhaps of very serious kind; but the principle is the In the case at ba: the indictment charged the illegal same, although the defiance of the will of the people, as sale of spirituous liquors on at least four different ocembodied in their Constitution, be trival. Vested with casions, and upon each occasion to entirely different authority from the people to keep the law making persons. Each of these charges is made as an inde. power within its lawful sphere, it is the duty of the pendent charge or count in the indictment. The injudiciary to prevent ‘practical revolution," and to dictment not only does not show upou its face that write the judgment of its condemnation of such a pre- these separate counts relate to the same transaction, tended office whenever and under whatsoever circum. į but does show quite conclusively that each was a stances the question may arise.

separate and distinct transaction. This indictment GUY C. H. CORLISS.

we think obnoxious to the objection that it GRAND FORKS, DAKOTA.

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 CRIMINAL PROCEDURE - JOINDER OF MIS- overdrawing his account in different amounts and

the defendant, an officer of a bauk, with the offense of DEMEANORS DISTINCT SALES OF

upon different dates. It was there held that the inINTOXICATING LIQUORS.

dictment was subject to the objection that it charged

more than one offense, and was in violation of the NEW YORK SUPREME COURT, GENERAL TERM,

prohibition of section 278, and for that reason was deFOURTH DEPARTMENT, NOVEMBER, 1887.

murrable. It is true it was held in that case, that the

defeudant had waived the misjoinder by his appearPEOPLE V. O'DONNELL.

auce and plea of not guilty. In this case the plea of An indictment charged separate and distinct sales, to differ

wot guilty was withdrawn and the objection was ent persons, at different dates, of strong and spirituous

raised by demurrer, as provided by section 323, subliquors, in quantities less than five gallons at a time, to be

devision 3, Code of Criminal Procedure. The indictdrunk on the premises. Held bad under Code Crim Proc.,

ment in that case was for a misdemeanor. Penal $$ 278, 279.

Code, $ 100. The crimes charged in the indictment

in this case are also misdemeanors. George P. Pudney, for respondent.

We are of the opinion that the indictment in this John W. Church, for appellant.

case charged more than one crime, that it was demur.

rable on that ground, and that the court erred in MARTIN, J. The questiou involved in this action overruling such demurrer. arises upon a demurrer to an indictment against the [Omitting a minor question.] defendant, for selling strong and spirituous liquors in For the error above pointed out the judgment and quantities less than five gallons at a time, to be drunk conviction should be reversed and the prisoner dison his premises, without having a license therefor. The charged.


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NEGOTIABLE INSTRUMENTS-BANK CHECK 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. UNITED STATES SUPREME COURT, OCT. 31, 1887.

Upon these facts the following questions of law arose,

viz.: Whether the said drafts, or bills of exchange, BULL V. FIRST NAT. BANK OF KASSON.

were to be regarded as overdue and dishonored paper An order for money drawn by one bank on another bank is a at the time they were presented by the plaintiffs to bank check, and not a bill of exchange.

the drawee for payment, and payment refused, so as The addition of the words, “in current funds," in a bank to admit the set-off. Upon this question the judges check does not impair its negotiability.

were divided in opinion, and upon motion of plainDelay upon the part of a bona fide holder for value of a bank

tiffs, it was certified to this court for decision. The check, drawn by a bank in one State upon a bank in an- Circuit judge who presided at the Circuit, being of other, in presenting it for payment, does not affect the

opinion that the question should be answered in the non-availability of set-off as between such holder and the

affirmative, ordered judgment for the defendant. To drawer, where the funds upon which the check was drawn

review this judgment, upon the certificate of division were still in the hands of the drawee when payment was of opinion, the case is brought here on writ of error. demanded.

William McFadon, for plaintiffs in error.
N error to the Circuit Court of the United States

C. C. Willson, for defendant in error.
for the District of Minnesota.
This case comes before this court on a certificate of FIELD, J. In the record the insuruments upon
division of opinion between the Circuit aud District which the action is bronght are designated as “ drafts
judges holding the Circuit Court of the United States or bills of exchange.” In a general sense, they may
for the District of Minnesota. The action was upon be tbus designated, for they are orders of one party
two drafts, or bills of exchange (as they are termed in upon another for the payment of money, which is the
the record), each for $500, drawn by the First National essential characteristic of drafts or bills of exchange.
Bank of Kasson, in Minnesota, upon the Ninth Na- They are also negotiable, and pass by delivery, and
tional Bank, in New York city, and payable to the are within the description of instruments of that
order of R. La Due, of which the following are cop- character in the act of March 3, 1875, prescribing the
jes :

jurisdiction of Circuit Courts of the United States. * $500. THE FIRST NATIONAL BANK, KASSON, Mixn.,

But in strictness, they are bank checks. They have October 15, 1881.

all the particulars in which such instruments differ or Pay to the order of Mr. A. La Due five hundred

may differ from regular bills of excbange. They are dollars in current funds:

drawu upon a bauk having funds of the drawer for No. 18,956. E: E. FAIRCHILD, Cashier.

their payment, and they are payable upon demand, To Ninth National Bank, New York City.

although the time of payment is not designated in “[Indorsed :) Pay to the order of M. Edison, Esq.

them. A bill of exchange may be so drawn), but it * A. LA DUE.

usually states the time of payment, and days of grace ‘M. EDISON."

are allowed upon it. There are no days of grace upon

checks. The instruments here are also drawn in the < $500. THE FIRST NATIONAL BANK, KASSON, MINN.,

briefest form possible in orders for the payment of October 15, 1881.

money, which is the usual characteristic of checks. A • Pay to the order of Mr. A. La Due five hundred

bill of exchange is generally drawn with more formaldollars iu current funds.

ity, and payment at sight, or at a specified number of “No. 18,754. E. E. FAIRCHILD, Cashier.

days after date, is requested, and that the amount be “To Ninth National Bank, New York City.

charged to the drawer's account. When intended for “[Indorsed :} Pay to the order of M. Edison, Esq.

transmission to another State or country, they are "A. LA DUE.

usually drawn lin duplicate or triplicate, and desig"M. Edison."

pated as first, second or third of exchange. A regular The draft or bills of exchange were, immediately bill of exchange, it is true, may be in a form similar after their execution, transferred by indorsement of to a bank check, so that it may sometimes be difficult the payee to one M. Edison, at Kasson, Minnesota. from their form to distinguish between the two Edison was at the time largely indebted, and on the classes of instruments. But when the instrument is following day he absconded from Kasson, carrying drawn upon a ban or a person engaged in banking the drafts with him. These drafts he retained in his business, and simply directs the payment to a party possession until March 24, 1882, when at Quincy, in named of a specified sum of money, which is at the Illinois, he sold and indorsed them for a valuable con. time on deposit with the drawee, without designating bideration to the plaintiffs, who had no notice of any a future day of payment, the instrument is to be set-off to them. The plaintiffs then forwarded them treated as a check rather than as a bill of exchange, to New York city, where on the 27th of March they and the liability of parties thereto is to be determined were presented for payment to the drawee, the Ninth accordingly. If the instrument designates a future National Bank of New York, and payment was re- day for its payment, it is, according to the weight of fused by it. The drafts were then protested for non- authorities, to be deemed a bill of exchange, when payment, and notice thereof given to the drawer and without such designation it would be treated as a indorsers. In the meantime the First National Bank check. Bowen y. Newell, 8 N. Y. 130. of Kasson, the drawer of the drafts, had become the The instruments upon which the action is brought owner of certain demands against Elison, which un- being bank checks, the liability of the parties is deder the statute of Minnesota could be legally get off terminable by the rules governing such paper. against its liability on the drafts in the hands of Edi- check implies a contract on the part of the drawer son, and also in the hands of the plaintiffs, unless they that he has funds in the bands of the drawee for its were protected against such set-off as innocent pur- payment on presentation. If it is dishonored, the chasers of the paper before maturity, and without no- drawer is entitled to notice; but unlike the drawer of tice of the set-off. At the time the drafts were drawn, a bill of exchange, he is not discharged from liability and at the time of their presentation for payment, the for the want of such notice unless he has sustained

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damage, or is prejudiced in the assertion of his rights to be paid in gold or silver, or in such notes; and the by the omission.

term "current fund" has been used to designate any In Bank v. Bank this court said: “ Bank checks are of these, all being current, and declared by positive not inland bills of exchange, but have many of the enactment to be legal tender. It was intended to properties of such commercial paper, and many of the cover whatever was receivable and current by law as rules of the law-merchant are alike applicable to both. money, whether in form of notes or coin. Thus conEach is for a specific sum payable in money. In both strued, we do not think the pegotiability of the paper cases there is a drawer, a drawee and a payee. With: in question was impaired by the insertion of those out acceptauce, no action can be maintained by the words. holder upon either against the drawee. The chief It follows from these views that the question certipoints of difference are that a check is always drawn fied to us must be answered in the negative. The on a bank or banker. No days of grace are allowed. judgment will therefore be reversed and the cause reThe drawer is not discharged by the laches of the manded, with directions to enter judgment for the holder in presentment for payment, unless he can plaiutiffs upon the fiudings; and it is so ordered. 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 NEW YORK COURT OF APPEALS ABSTRACT. is by its face the appropriation of so much money of the drawer in the hands of the drawee to the payment APPEAL - WHAT REVIEWABLE - RECORD.— It apof an admitted liability of the drawer. It is not neces- peared from the record that a motion was made besary that the drawer of a bill should have funds in fore the trial court for a new trial, on the minutes of the hands of the drawee. A check in such case would the court, under Code Civil Proc. N. Y., S 999, providbe a fraud.” 10 Wall. 647.

ing that a trial judge may, in his discretion, enterSimilar language is used by Mr. Justice Story with tain a motion made upon his minutes at the same term, reference to the time when checks are to be regarded to set aside the verdict and grant a new trial, upon as due. In stating the difference in point of law be

exoeptions, or because the verdict is for excessive or tween checks and bills of exchange, he refers to the insufficient damages, or otherwise contrary to evirule that a bill of exchange taken after the day of dence or contrary to law. It also appeared that such payment subjects the bolder to all the equities attach- motion was denied, and the order of denial was reing to it in the hands of the party from whom he re- versed by the General Term, but nothing further apceives it. “But," he adds, “this rule does not apply peared to show the grounds of the motion, or of the to a check; for it is not treated as overdue, although decision of the General Term. Held, that the Court it is taken by the holder some days after its date, and

of Appeals cannot review the decision, as it may have it is payable on demand. On the contrary, the holder

been made ou questions of fact. Oct. 18, 1887. Harris in such a case takes it subject to no equities of which

v. Gere. Opinion by Earl, J. he has not at the time notice, for a check is not

JUDGE DISQUALIFICATION - POWER TO SIT IN treated as overdue merely because it has not heen pre

GENERAL TERM-APPEAL-DISCRETION.—(2) A certain sented as early as it might be, or as a bill of ex

order requiring a person to appear and submit to an change is required to be, to charge the drawer or

examination was made by Judge Van Brunt. Thereiudorser or transferrer. One reason for this seems to be, that strictly speaking, a check is not due until it

after defendant applied to Judge Patterson at cham

bers for an order vacating Judge Van Brunt's order, is demanded.” Prom. Notes, 491. See also In re

which order was made by Judge Patturson, and from Brown, 2 Story, 502, 513.

this order plaintiff appealed to the General Term, Accepting these citations as correctly stating the

which reversed Judge Patterson's order, and reinlaw, the question presented for our decision is read

stated that of Judge Van Brunt. The General Term ily answered. The drawer was in no way injured or prejudiced in his rights by the delay of Edison to pre

was composed of Judge Van Brunt, Daniels and Bart.


lett. From this decision defendant appealed. sent the checks. The funds against which they

that the order under review was a decision by Judge were drawn remained undisturbed in the hands

Patterson), and not by Judge Van Brunt, and the latter of the drawee, and therefore the drawer had

was not disqualified to sit in the General Term by no cause of complaint. The instruments in suit were not overdue and dishonored when presented for pay

reason of Const. N. Y., art. 6, 8, which provides that

no judge shall sit in the General Term or in the Court ment. Until then the plaintiffs, as purchasers for a

of Appeals in review of a decision made by him, or of valuable consideration without notice of any demand

any court at which he was at the time a sitting agaiust Edison, in the hands of a drawer, were pro

member. (2) An examination of a defendant upon tected against its set-off.

order is a natter resting in the discretion of the The certificate of division of opinion presents to us

General Term, and the order will not be reviewed by only one question, and yet to answer that correctly,

the Court of Appeals. Oct. 18, 1887. Philips v. Gerwe must consider whether the negotiability of the in

munia Mills. Opinion by Earl, J. struments in suit was affected by the fact that they

JURY were payable " in current funds." Undoubtedly it is

- RIGHT TO TRIAL BY- EQUITY.- Plaintiff the law, that to be negotiable, a bill, promissory note

had brought an action at law against a life insurance or check must be payable in money, or whatever is

company. The company paid the money into court, current as such by the law of the country where the

and set up that defendant's intestate also claimed the instrument is drawn or payable. There are numer

money. The court required the plaintiff to substitute ous cases where a designation of the payment of such

the defendant's intestate as defendant in order to instruments in notes of particular banks or associa

determine the conflicting claims to the fund in court. tions, or in paper not current as money, has been held

Held, that this was an equity case triable by the court, to destroy their negotiability. Irvine v. Lowery, 14

and that the judge could impanel a jury to try a quesPet. 293; Miller v. dustin, 13 How. 218, 228.

tion of fact, and that he could disregard the finding But within a few years, commencing with the first

of the jury, and find the fact the contrary way. Oct. issue in this country of notes declared to have the 11, 1887. Clark v. Mosher. Opinion by Rapallo, J. quality of legal tender, it has been a common practice MORTGAGE -FORECLOSURE-SURPLUS - PARTIESof drawers of bills of exchange or checks, or makers

PLEADING AND PROOFS STATUTE OF LIMITATION of promissory notes, to indicate whether the same are

- NEW TRIAL APPEAL PRESUMPTIONS. - (1) A purchaser at a foreclosure sale sought to recover the invalid as against the vendor's lien. As assignee, surplus which had been deposited with the clerk nine Sabey is no better off than, and is affected by all the years before he brought the suit. The mortgagor had equities which affect McKinstry. Decker v. Boice, 83 made no claim to the surplus. Held, that the real N. Y. 215; De Lancey v. Stearus, 66 id. 157; Schafer party iu interest – the mortgagor — was not before the v. Reilly, 50 id. 61; Bush v. Lathrop, 22 id. 535; Davis court. (2) The evideuce showed that there was a sur- v. Bechstein, 69 id. 440. As a purchaser his case, under plus of $2,497.18 arising from the sale, which was de- the recording act, if that act applies, might be better posited by the referee with the clerk of Kings county, than that of McKinstry. If so, it would be because and the collector of taxes of the defendant town re- his assignment was not only recorded, but his legal ceived therefrom the sum of $2,197.82, under a war

title to the mortgage is based upon an actual pecunirant issued to him by the supervisors of Kings county,

ary consideration, and upon the absence of notice. and applied it upon a warrant held by him for the col. Decker v. Boice, supra; 1 Rev. Stat. 756, $ 7. But the lection of an assessment for grading Atlantic avenue,

character of “purchaser" under the statute is an inwhich was subsequently adjudged to be illegal and dependent one, something different from that of asvoid. Subsequently plaintiff paid a valid assessment signee, and to avail the defendant it was necessary to for grading Atlantic avenue amounting to $1,000. plead and prove not only that he was a

purchaser" Held, that such surplus money belonged to the mort- of record, but that he was a purchaser in good faith gagor, or the owner of the equity of redemption, and and for a valuable consideration. He was bound not to the purchaser at the mortgage sale. (3) On

therefore to deny by his answer notice, although notice these facts plaintiff alleged in his complaint that had not been charged, and to prove it. These matters $1,499.93 of the sum received by the collector belonged

were new and in defense. The duty of setting them to him. The theory of the court below was that the up and the burden of proving them were therefore decree of foreclosure required all assessments on the upon him, and because he did not so plead and had not property to be paid out of the purchase-money, and

proved those things, the judgment of the court below that a valid assessment of $1,499.93 remained, until was sustained. No new rule was applied, but a very paid by plaintiff; that the defendant had taken money

old one, which requires a defendant, who would avail which was devoted to the payment of valid assess

himself of new matter as a defense, to aver and prove ments by the judgment decree; that it became equi

it, and which has been illustrated to the present day tably liable to avoid circuity to repay the plaintiff

and through various systems of equitable procedure. what he had paid to redeem his land. Held, that this

Grimstone v. Carter, 3 Paige, 421, 436, 437; Jewett v. cause of action was not presented by the pleadings nor Palmer, ñ Johns. Ch. 65; Tuttle v. Jackson, 6 Wend. tried or determined by the trial court. (4) That the

213, 227, 228; Jackson v. McChesney, 7 Cow. 360, 362; action was barred by the statute of limitations. (5)

Weaver v. Barden,49 N. Y. 286, motion denied. Oct. 11, In the trial court defendant had a verdict. An ap- 1887. Seymour v. McKinstry. Opinion by Danforth, J. peal was taken, and the General Term reversed the MUNICIPAL CORPORATIONS CLAIMS AGAINST judgment and ordered a new trial. The order of re- PRESENTATION OF.- A claim for damages against a versal did not state that it was made on questions of municipal corporation on account of negligence is not fact. Held, that it must be assumed that it was made governed by the provisions of section 3245, Code Civil upon questions of law only which could be sustained

Proc., which provides that “costs cannot be awarded by some valid exception taken only upon the trial. to the plaintiff in an action against a municipal cor(6) No exceptions having been taken upon the trial, the poration in which the complaint demands a judgment judgment rendered by the trial court was unassail- for a sum of money only, unless the claim upon which able upon any legal ground. (7) The judgment-roll in the action is founded was before the commencement the foreclosure case was neither set forth in the plead- of the action presented for payment to the chief fiscal ings in this case not proved nor produced on the trial, officer of the corporation.” The section above referred and did not appear in the record of the case. A copy to applies only to actions arising ex contractu. In Gage was produced on the argument before the court below, v. Village of Hornellsville, 106 N. Y. 667, decided in where the judgment of the trial court was reversed. this court July 1, 1887, it was held that there was no Held, that a record can be produced upon the argu- substantial distinction between section 2 of chapter ment in an appellate court only for the purpose of 262 of the Laws of 1859, and section 3245 of the Code of Bustaining a judgment. (8) The judgment-roll was in- Civil Procedure. It has been frequently held in this admissible under the pleadings, and yet it was a court, in cases arising under the statute of 1859, that material fact in the view taken by the General Term, it does not apply to actions ex delicto, and that the when they reversed the judgment of the trial court. notice therein referred to was not required as the conHeld, that it is the duty of an appellate court to in- dition of a right to recover costs by the plaintiff in dulge all reasonable presumptions in support of the such actions. The precise question involved in this judgment of trial courts, and to assume that they con- case came before us in Gage v. Hornellsville, and we sidered the roll if it was in evidence. Oct. 11, 1887. there held that section 3245 of the Code of Civil ProDay v. Town of New Lots. Opinion by Ruger, C. J. cedure applied only to actions arising ex contractu. VENDOR'S LIEN

While this result was strongly intimated in Taylor v. ING FRAUD.- As between an assignee of a mort

Cohoes, 105 N. Y. 54; 11 N. E. Rep. 282, it was not ex. gage, taken by the original mortgagee with notice of pressly so decided, and thus left room for misapprean outstanding vendor's lien, and the unpaid vendor

hension upon the question here involved. Gage v. in possession at the date of the assigument, seeking to

Village of Hornellsville was decided July 1, the same enforce his lien, and charging fraud on the part of the

day that this case was determined by the General vendee in putting the deed on record, the burden of

Term, and they could not have been informed of our alleging and proving innocence and good faith is upon

decision, otherwise we are bound to presume their the assignee, and in the absence of such pleading and

judgment would have been the reverse of that renproof his mortgage will be postponed to the lien. The dered by them. Oct. 18, 1887. Hunt v. City of Oswego. defendant Sabey moves for a reargument. It ap

Opinion by Ruger, C. J. peared in the case before us that McKinstry had from

LIABILITY FOR NEGLIGENCE-BRIDGE the beginning, and before the execution of the mort- TWEEN TWO CITIES.-Laws N. Y. 1867, chap. 399, gage, full notice of the plaintiff's rights, and was so Laws N. Y. 1874, chap. 601, and Laws N. Y. affected by it that in his hands the mortgage would be 1875, chap. 300, provide for the erection and man




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 bighway in New York, was injured by a plank dropped by a workmau 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.



BANK TAXATION CONSTITUTIONALITY. - The fact that under the act of Congress the capital of national banks can be taxed by the States iu vo 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 upor the capital of the saving banks as upon the sbares 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 mucb 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 bauks. 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 inten. tion 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 bands 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 accumnlations of the iudustrious 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 MACHINERYTOTAL 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 po 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, wbich was a case of insurance against fire on laud, 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. 5. 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, is 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. 8. 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 beeu 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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