tract, and claimant's noncompliance therewith, and this being presumed upon the further presumption that they must have reported the failure in performance to the department.

In U. S. v. Ross, 92 U. S. 281, 284, Mr. Justice Strong, speaking for the court, says: "The presumption that public officers have done their duty like the presumption of innocence, is undoubtedly a legal presumption; but it does not supply proof of a substantive fact. Best, in his Treatise on Evidence (section 30) says: "The true principle intended to be asserted by the rule seems to be that there is a general disposition in courts of justice to uphold judicial and other acts, rather than to render them inoperative; and, with this view, where there is general evidence of acts having been legally and regularly done, to dispense with proof of circumstances, strictly speaking, essential to the validity of those acts, and by which they were probably accompanied in most instances, although in others the assumption may rest on grounds of public policy.' Nowhere is the presumption held to be a substitute for proof of an independent and material fact.”

Section 3849, of the Revised Statutes provides that "every postmaster shall promptly report to the postmaster general every delinquency, neglect, or malpractice of the contractors, their agents or carriers, which comes to his knowledge." By none of the findings of fact is it shown that the delinquency in question ever came to the knowledge of the postmasters at the termini of this mail route; but under finding 6 it appears that "on March 22, 1882, Second Assistant Postmaster General addressed a letter to the postmaster at Natividad, and received information from him on April 6, 1882, that the mail was not carried from Gabilan by way of Natividad and Santa Rita, and that such had been the practice since the present contractor had the contract. The postmaster at Santa Rita certified to the Postmaster General that such had been the practice since he became postmaster. The date of the letters as to the continuance of the mode of carrying the mails was May 1, 1882;" and, from finding 3, that the postmaster general instantly repudiated that manner of carrying the mails, and that they were not so carried for the remaining quarter, under the contract. Of course the postmasters at Santa Rita and Natividad knew that the mails did not come back through those places, but it does not follow that they were aware that the contractor was obliged so to carry them. Indeed, as they made no effort to have this state of things remedied, so far as appears, it is rather to be presumed that they were not aware that it was the result of the delinquency of the contractor. The fact of knowledge on the part of the postmasters of the delinquency, from which the inference is drawn that they reported it, was a fact to be proven, and not to be presumed. If they knew of the delinquency, it was undoubtedly their duty to report it, but it is not to be assumed that they did report it, without some evidence of such knowledge; and, upon this record, the irresistible inference is that the delinquency, if reported, would not have been permitted to continue.

2.

The certificate of the Second Assistant Postmaster General is dated October 23, 1878, and states that the mails had been carried "without any failures or delinquencies, so far as shown by returns received, for the quarter ended September 30, 1878." As the contract was a plain one, and was not performed according to its terms, we think this certificate indicates clearly that the "returns received" did not show the nonperformance. So far from strengthening the alleged presumption that the postmasters reported the facts as they existed, its effect is to the contrary. What they did report, in fact, is not shown; and, inasmuch as under finding 6 no other inference can be drawn than that the first information that the postmaster general had that the mail was not carried from Gabilan by way of Natividad and Santa Rita was April 6, 1882, we cannot accept the conclusion that the responsible officers of the department were in possession of information and knowledge of the conduct of the contractor before that time, and acquiesced in the manner in which he carried the mails during the period in question or during the preceding years, in respect to which it is found that he so operated the route under a similar contract.

We can find nothing in the findings to justify us in holding that the department paid this claimant the full measure of his compensation prior to March 31, 1882, with knowledge of the manner in which he was performing the work, or that the department ever put the interpretation upon the contract which is now contended for, or induced the contractor to enter into the contract by reason of any such interpretation on its part. The deduction of $746.25 was properly made, and the conclusion of law on the facts found was erroneous.

The judgment is reversed, and the cause remanded, with directions to enter judgment for the United States.

3. PRESUMPTION AS TO LAW OF ANOTHER STATE OR COUNTRY

FIRST NAT. BANK OF STRONGHURST, ILL., v. KIRBY. (Supreme Court of Missouri, 1915. 175 S. W. 926.)

Appeal from Circuit Court, Knox County; Charles D. Stewart, Judge.

Action by the First National Bank of Stronghurst, Ill., against Charles W. Kirby and wife. From a judgment granting insufficient relief, plaintiff appeals. Reversed and remanded.

BROWN, C.15 This suit was instituted in the Knox county circuit court April 12, 1911, to foreclose a mortgage on 200 acres of land in that county to secure the payment of four promissory notes dated October 15, 1909, for the aggregate amount of $7,500, payable five years

15 A portion of the opinion is omitted.

after date, "with interest thereon at the rate of 512 per cent. per annum from date." The notes were given by the defendants, who are husband and wife, to Elmer E. Taylor, at Stronghurst, Ill., and by him immediately assigned to the plaintiff bank, for whose benefit they were taken, and at which they were payable. They grew out of a transaction by which the bank, for the purpose of securing an indebtedness evidenced by notes of the defendants, had consolidated them in the notes in suit with money advanced to pay off a prior incumbrance, so that this would constitute a first mortgage.

The land was held in fee by the defendants as tenants by the entirety. The mortgage bears even date with the notes, and conveys the land to Taylor, who is described in it "as trustee," and provides that the grantors should pay all taxes against the property and "keep the buildings thereon insured against damage by fire for the benefit of the owner of said debt for the period of this loan." It was conditioned that “if the said grantors or any one for them shall pay the debt and interest expressed in said notes when the same shall become due and payable, according to the tenor of said notes, then this deed shall be void, and the property hereinbefore conveyed shall be released at the cost of the said grantor, but should said grantor fail or refuse to pay said debt, or interest or taxes, or insurance, or any part thereof, when any part thereof shall become due and payable, then the whole shall become due and payable and this deed shall remain in force," and that the said trustee, and in certain contingencies the sheriff of Knox county, might, at the request of the owner, proceed to sell the land in the manner provided.

The petition pleaded these provisions of the mortgage, and then alleged the breach of the condition as follows: "Plaintiff further states that on the 15th day of October, 1910, there was due, on the four notes above described, the sum of $412.50 annual interest on the debt of $7,500 represented by said notes and secured by said deed of trust or mortgage deed, and that the defendants have entirely failed and refused and are now failing and refusing to pay the same, but have only paid, on said installment of interest, the sum of $70 on November 21, 1910, the sum of $75 on January 9, 1910, and the sum of $37.50 on January 14, 1911, in all the sum of $182.50 so paid by defendants on said installment of interest, due as aforesaid, on October 15, 1910, and leaving the balance still due and unpaid, on said installment, of $230.

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* ""

It also pleaded that, under the laws of Illinois, the interest was payable annually. The prayer was for the foreclosure of the mortgage and sale of the premises for the payment of the debt, interest, costs, and attorney fees agreed in the notes to be paid for their collection, and for general relief.

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The plaintiff also introduced, without objection, the opinion of one of the Appellate Courts of Illinois (Kurz v. Suppiger, as reported in

18 Ill. App. 630), in which it was held that the interest clause in a note, reading, "With 8 per cent. annual interest from date until paid," amounted to a promise to pay the interest annually.

The effect of the nonpayment of interest depends entirely upon the question whether, at the time the suit was brought, any interest was due, and this, in turn, upon the question whether, by the terms of the . notes, the interest was payable annually, or at their maturity. For the purpose of considering this, we will assume that it is pleaded in the petition that there is a statute or other law in force in Illinois by which the terms of this note constitute an agreement to pay the interest annually, and that the rule of construction established by such law is applicable in this case, and go directly to the evidence. The presumption is, of course, in favor of the common-law rule prevailing in this state, and the burden is upon the plaintiff to show that the law is otherwise in Illinois. For this purpose he has introduced an opinion construing the words "with 8 per cent. annual interest from date until paid," as used in a promissory note in that state. It decides simply that the words "annual interest" mean interest payable annually, and cites, in support of the conclusion, Walker v. Kimball, 22 Ill. 537, in which the Supreme Court of that state construed the words "with interest annually at 10 per cent."

Referring to the word "annually," as used, for the purpose of fixing the rate of interest, Caton, C. J., says: "But it does not

*

follow that that word was used for that purpose only. That word may well be used, and indeed it is the proper word to use, for the purpose of fixing the time when the interest shall be paid, and we are inclined to think that such is its proper office here." He further says that the rate of interest is the same whether the word “annual" is used or not, because the words "per annum" will always be implied for the purpose of fixing the rate of interest. We see from the above that the law of Illinois is the same in that respect as the law of Missouri. The words "per annum" are used exclusively to designate rate of interest, while the word "annually," in that connection, is an appropriate word to indicate the time of payment. Thus the words "monthly interest at the rate of 10 per cent. per annum" would, as held in Illinois, be a proper expression to indicate interest at 10 per cent. per annum, payable monthly, while "annual interest at 10 per cent. per annum" would be a proper form in which to express interest at 10 per cent. per annum, payable yearly.

The Illinois court in both these cases sensibly adds that it is not necessary to use the word "per annum" to express the rate of interest, because they are always understood-so well understood in fact that we seldom use them in common conversation or in informal writing. We simply say "interest at 10 per cent." If we say annual interest at 10 per cent. it means annual interest at 10 per cent. per annum. We see no difference between the law of Illinois and the law of Missouri on

this question, and, for an extensive review of the authorities on the question of the latter, we can do no better than to refer to the recent case of Frye v. Shepherd, 173 Mo. App. 200, 158 S. W. 717. * * PER CURIAM. The foregoing opinion of BROWN, C., is adopted as the opinion of the court. All concur.

a.

4. PRESUMPTION OF INNOCENCE

CULPEPPER v. STATE.

(Criminal Court of Appeals of Oklahoma, 1910. 4 Okl. Cr. 103, 111 Pac. 679, 31 L. R. A. [N. S.] 1166, 140 Am. St. Rep. 668.)

J. W. Culpepper was convicted of manslaughter in the first degree, and appeals.

RICHARDSON, J.18 The first contention in this case is that the verdict was contrary to the evidence. An examination of the evidence discloses that the commission of the homicide by plaintiff in error was proved on the one hand and admitted on the other. His plea was self-defense, and upon this issue the evidence, though conflicting, was amply sufficient to sustain the verdict.

The next assignment of error is predicated upon the action of the court in giving the jury the following instruction: "You are instructed that the defendant in this case is presumed to be innocent of the crime charged in the indictment, and this is a presumption of law that remains with him and is thrown around him for his protection up to the moment when the killing is proved or admitted. When the killing is proved or admitted by defendant and the plea of self-defense is interposed, as in this case, it then devolves upon defendant to show any circumstances of mitigation to excuse or justify it by some proof hot strong enough to create in the minds of the jury a reasonable doubt of his guilt of the offense charged, unless the proof on the part of the state shows that the defendant was justified in doing the act."

It is contended that this instruction was erroneous because it deprived plaintiff in error of the application of the presumption of innocence to his plea of self-defense. It is also contended that the presumption of innocence is evidence in behalf of the accused, and that it remains with him throughout the whole of the trial under any and all circumstances until the jury have reached a verdict of conviction; and plaintiff in error requested the court to so instruct the jury, and assigns his refusal to do so as error. The two assignments are treated together in plaintiff in error's brief, and we shall so consider them here.