right to close, no matter in what form the issues for trial may be drawn: Id.

INTEREST.

Usury-Powers of the National Government.-The National Bank Act of Congress of the 3d of June 1864, inter alia, makes the following provisions: (1.) The rate of interest chargeable by each bank is to be that allowed by the law of the state or territory where the bank is situ ated. (2.) When by the laws of the state or territory a different rate is limited for banks of issue organized under the local laws, the rate so limited is allowed for the national banks. (3.) Where no rate of interest is fixed by the laws of the state or territory the national banks may charge at a rate not exceeding seven per cent. per annum. (4.) Knowingly reserving, receiving or charging "a rate of interest greater than aforesaid shall be held and adjudged a forfeiture of the interest which the note, bill or other evidence of debt carries with it, or which has been agreed to be paid thereon." Held, that the phrase “a rate of interest greater than aforesaid" has reference not merely to the preceding sentence, which relates to banks where no rate of interest is fixed by law, but to all the foregoing clauses; and that therefore the consequences of usury where such rate is fixed, is not to be governed wholly by the local law upon the subject: National Bank v. Dearing, S. C. U. S., Oct. Term 1875.

The states can exercise no control over the national banks nor in any wise affect their operation except in so far as Congress may see proper to permit Id.

In the United States the powers of government may be divided into four classes those which belong exclusively to the states; those which belong exclusively to the national government; those which may be exercised concurrently and independently by both; and those which may be exercised by the states, but only with the consent, express or implied, of Congress: Id.

JUDGMENT. See Court.
LIBEL.

Action for Libel-Pleading-Evidence.-On the trial of an action for libel, it appeared that the original writing, the publication of which was the foundation of the suit, was among the records of the navy department at Washington. Held, that secondary evidence of its existence and contents was properly admitted: Carpenter v. Bailey, 56 N. H.

The alleged libel contained charges against the plaintiff as paymaster in the naval service of the United States stationed at Portsmouth, and requested his removal. Held, that a letter from Vice-admiral Porter, while in charge of the department, to the plaintiff, making the removal, and stating the reasons for it, was admissible, as an act of the department: Id.

The plaintiff was permitted to testify that he sold his furniture at a loss, upon his transfer from the naval station at Portsmouth. Held, no cause for setting aside the verdict in his favor: Id.

The allegations of a special plea of justification in such case must be

proved substantially as laid. Hence, where such plea set up specific facts, going to show that the charges were true, and other facts showing that the occasion was lawful and the end justifiable, and alleged that such was the fact, Held, that the court properly refused to charge the jury that if the alleged charges are true the plaintiff cannot recover; also, that the jury were properly instructed, among other things, that, if the occasion was lawful and the alleged libel true, the verdict should be for the defendant: Id.

Whether an alleged libel is a privileged communication, is a question for the jury under proper instructions from the court: Id.

NATIONAL BANKS. See Bailment; Interest.

Taxation of by States.-The provision of the Act of Congress of Feb. ruary 10th 1868, that taxation on national bank stock shall not be at a greater rate than is assessed upon other moneyed capital in the states, relates only to the rate, and does not prohibit the states from exempting any subjects from taxation. Per Graham, P. J.; adopted by the Supreme Court Gorgas's Appeal, 79 Penna.

Stock of National Banks liable to School-tax in addition to Statetax. A school tax was assessed on national bank stock in 1870, which was unpaid. On the 19th of January 1871, the bank paid the state tax of one per cent., being the tax of 1871, under Act of April 12th 1867, sect. 5. Held, that the holder of stock was not exempt from the school tax of 1870: Carlisle School District v. Hepburn, 79 Penna.

The state assessor assessed the stock at $150, the par value being $100, the return was duly made and there was no appeal. Held, that a tax imposed by the school directors on that valuation was not void; if the assessment was wrong the remedy was by appeal to the auditorgeneral under the Act of April 2d 1868: Id.

NEGLIGENCE. See Bailment.

Escape of Fire from Locomotive-Circumstantial Evidence-Remote Injury-Questions of fact for Jury.-Negligence on the part of a railroad company in permitting fire to escape from its engines may be shown wholly by circumstantial evidence, and it is not necessary in such a case that any direct proof of any particular act of negligence should be introduced: Railroad Co. v. Bales, 16 Kans.

Where circumstantial evidence, tending to show negligence on the part of a railroad company in permitting fire to escape from its engines, is introduced by the plaintiff, and the defendant company afterwards introduces direct and positive evidence tending to show the contrary; Held, that it is a question for the jury to determine which evidence is entitled to the greatest credit: Id.

Where fire, which is negligently permitted to escape from an engine of a railroad company, does not fall upon the plaintiff's property, but falls upon the property of another, setting it on fire, and then spreads by means of dry grass, stubble and other combustible materials, and passes over the lands of several different persons before it reaches the property of the plaintiff, and finally reaching the property of the plaintiff, at a great distance from where the fire was first kindled, sets it on

fire and consumes it: Held, that the negligence of a railroad company, in such a case, is not too remote from the injury to the plaintiff's property to constitute the basis of a cause of action against the company:

Id

The proper questions to be considered in such a case are as follows: (1.) Was the railroad company negligent in permitting the fire to escape? (2.) Would the plaintiff's property have been destroyed by fire as it was destroyed, except for the fire permitted to escape from the company's engine? (3.) Could the railroad company, by exercise of reasonable diligence, at or before the time of permitting said fire to escape, have anticipated the burning of the plaintiff's property as likely to occur and as the natural and probable consequence of permitting said fire to escape? And these are all questions of fact entirely for the jury to consider and determine under proper instructions from the court: Id.

Speed of Steam-cars in City-May be regulated by Ordinance-Contributory Negligence by Child—And Parents.-A child about nine years old was sent by his mother, who resided in Harrisburg, near defendants' railroad, on an errand across the road; whilst on the track he was killed by an engine going westward; there were iron-works and houses for the hands on the opposite side of the road at that point, which was in the outskirts of the city; and the hands of the works and other persons were frequently crossing the track about the place. East of where the boy was struck was a curve, which prevented the engineer from seeing him till within too short a distance to stop the train after he was seen. There was no ordinance of the city limiting the rate of running trains at that point. There was evidence that the train was running at a high rate of speed. Held, that whether the train was running at a rate of speed which was safe and prudent under the circumstances, was for the jury Pennsylvania Railroad Company v. Lewis et ux., 79 Penna.

It is not common prudence or ordinary care for trains to enter the outskirts of a city at a dangerous rate of speed, although the people have no right to go on the railroad track: Id.

Although persons on a railroad track are trespassers, regard must be had to the habits, character, condition and circumstances of a people living in a city and immediately on the line of a railroad: Id.

The Commonwealth by its police power may regulate positive rights when for the safety, protection and welfare of the people; and the speed of trains through towns and cities may be regulated by ordinance: Id.

When it is determined by the jury on the facts submitted to them that the rate of speed of a train is incompatible with public safety under the circumstances of the place, the rights of a company even on its own track are qualified by the law of the public good: Id.

The court charged: "If the boy (being on the track) had sufficient judgment and discretion to know his danger, and did not exercise the ordinary care that one of his age and maturity should, he was guilty of such negligence as would prevent him from recovering," &c. Held not to be error: Id.

There was evidence in this case of contributory negligence by the parents as to exposing their son to danger, and submitted with proper instructions: Id.

PARTNERSHIP.

Right of liquidating Partner to give Firm-notes.-A firm dissolved in May, giving notice by publication and authorizing one as the liquidating partner to use the firm name for that purpose; in August, without the knowledge of his fellows, he drew notes payable to the firm, endorsed them with the firm name, had them discounted by bankers with whom the firm had never had dealings; the proceeds of the notes passed to the individual credit of the partner making them; there was evidence that the proceeds were applied to the firm debts. Held, that if the notes were bona fide for liquidation and the proceeds applied to payment of firm debts, the other partners would be liable: Lloyd et al. v. Thomas et al., 79 Penna.

RAILROAD. See Negligence.

SALE.

When Contract Complete-Delivery most Significant Fact, but not Conclusive. The plaintiff sold defendant certain logs lying in Bad River, and received $50 on account of the price. He (plaintiff) was subsequently to run the logs down stream as far as the limits of the Bad River Booming Company, where they were to be measured. The price was to be $8 per M. The logs were delivered to the Booming Company, but defendant never received them: Held, That where under a contract for sale of personalty something remains to be done, as to identify the property, or to fix the price to be paid, &c., the presumption is that title is not to pass until such act has been accomplished, but such presumption is not conclusive. The question is one of mutual assent, whether the minds of the parties have met, and by their understanding the purchaser has now become owner: Wilkinson v. Holiday, S. C. Mich., April Term 1876.

Delivery is the most significant fact to prove transfer of title, but it is not conclusive; parties may agree that title shall not pass until the measurement be made to determine the amount of the price to be paid: Id.

As to the delivery in this case, the real question was, for whom was the Booming company bailee after they received the logs? And while the fact that the defendant was to pay the company's charges raised the presumption that the logs were held for him, on the other hand, the fact that the logs were to be scaled, to determine how much was to be paid, and no credit having been agreed on, raised the inference that payment was to be made before the purchaser was to be at liberty to remove the logs: Id.

The question of delivery was one of fact to be submitted to the jury, and not to be decided for them by the court: Id.

TRUST. See Amendment.

WAY.

Way of Necessity-Implied Reservation.—A party having conveyed a portion of his land over which was the only means of access to the remaining land-Held, that a right of way by necessity to the remaining land was reserved: Pingree v. McDuffie, 56 N. H.

WILL. See Evidence.

THE

AMERICAN LAW REGISTER.

NOVEMBER 1876.

LIMITATIONS IMPOSED BY THE CONSTITUTION OF THE UNITED STATES ON THE TAXING POWERS OF THE STATES.'

I. Impairing the Obligation of Contracts.-The provision. prohibiting the states from passing "any law impairing the obligation of contracts," is found in the same paragraph with the prohibition against passing any bills of attainder, ex post facto laws, and laws granting titles of nobility: Const. U. S., art. 1, § 10, par. 1. The questions affecting the taxing power of the states, arising under this provision, relate almost exclusively to the charters of corporations which contain clauses exempting them from taxation, and the effect of subsequent laws repealing these clauses and imposing taxes upon them. Whether the charter of a private corporation, or of a corporation not municipal, is a contract within the meaning of the Constitution, was first settled by the Supreme Court of the United States in the celebrated Dartmouth College Case: Trustees of Dartmouth College v. Wood

From a forthcoming treatise on Taxation, by Hon. W. H. BURROUGHS, of Norfolk, Va. It may be proper to state that some specific restrictions on taxation, such as Import and Tonnage Duties, Regulation of Commerce, &c., are discussed in a separate chapter-ED. A. L. R.

VOL. XXIV.—79

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