tion against his citizenship by this prosecution, and that to the extent of upholding the prosecution the statute is constitutional and valid, although beyond that it may not be; that he could not be prosecuted for selling without a license, if he had a license, and that to avoid such a prosecution he should pay for and obtain a license as a resident of the State would. This argument would be better founded if there was any mode provided by which he could obtain such a license. But not only is no such mode provided, but further, his obtaining one is expressly prohibited It is said that it is this prohibition which makes the discrimination, and that the prohibition only is not constitutional. The offense is peddling without a license. Without the provisions requiring a license there could be no wrongful lack of a license, and no offense resting in the want of one. These provisions exclude non-residents, and there can be no wrongful lack of a license as to them. These provisions all stand together to make up the offense, and the part discriminating against the relator cannot be taken away, and leave enough to make him guilty of the offense prosecuted for. The statute says to him that he shall not peddle without a license, and shall not have a license. This is equivalent to saying to him that he shall not peddle at all. It is not even claimed on behalf of the State that such a direct provision could be upheld.

a

In Ward v. Maryland the respondent was prosecuted for selling without a license. The discrimination consisted in requiring a larger license fee of non-residents. If only that part of the statute requiring the larger license fee had been held unconstitutional, he would have been left to obtain license on the same terms as residents, and been found guilty for selling without so obtaining one. Still no attempt was made to so divide the statute and uphold a part of it. After taking out the void part there was not enough left to support the prosecution, and the conviction was held bad. There is no view of the case in which this prosecution, in view of the provisions of the Constitution of the United States, can be upheld, consequently the relator is restrained of his liberty contrary to the Constitution of the United States, and is entitled to be discharged by this court. Relator discharged.

The bank, in answer to the complaint, avers that in April, 1876, the deceased was owing to it a debt previously contracted, greater in amount than the value of the shares of capital stock; that it being necessary to secure the bank from loss, he delivered to it certificates of the shares with other property, as collateral security for the debt; that in October, 1876, the debt being unsatisfied and overdue, the bank sold the shares at their full market value and applied the proceeds as a credit upon it; and that after such application a large amount remained due to the bank which is still unpaid.

The evidence produced at the trial tended to show that the shares of stock were delivered by the deceased to the bank as collateral security for money loaned to him at the time, and continued to be thus held until they were sold.

The court charged the jury that if they found from the evidence that the bank stock was delivered by the deceased to bank as a pledge or collateral security for a loan of money made by him at the time, the plaintiffs were entitled to recover the amount of the proceeds, with interest from the time of sale; as the defendant was prohibited by the currency act from thus receiving its own stock.

To this charge the defendant excepted. The plaintiffs recovered a verdict, and to review the judgment entered thereon the case was brought to this court on writ of error.

FIELD, J. Section 5,201 of the Revised Statutes declares that "no association shall make any loan or discount on the security of the shares of its own capitai stock, nor be the purchaser or holder of any such shares, unless such security or purchase shall be necessary to prevent loss upon a debt previously contracted in good faith, and stock so purchased or acquired shall, within six months from the time of its purchase, be sold or disposed of at public or private sale, or in default thereof a receiver may be appointed to close up the business of the association."

While this section in terms prohibits a banking association from making a loan upon the security of shares of its own stock, it imposes no penalty, either upon the bank or borrower, if a loan upon such security be made. If therefore the prohibition can be urged against the validity of the transaction by any one except the government, it can only be done before

PLEDGE TO A NATIONAL BANK OF ITS OWN the contract is executed, while the security is still sub

SHARES AS SECURITY.

SUPREME COURT OF THE UNITED STATES,
APRIL 30, 1883.

FIRST NATIONAL BANK OF XENIA V. STEWART. Where a National bank made a loan upon the pledge of its own shares and afterward sold the shares to obtain payment of the loan which exceeded the amount realized from the shares, held,that the owner of the shares could not on the ground that the statute forbid a National bank to take its own shares as security recover from the bank the amount realized upon the sale of the shares.

sisting in the hands of the bank. It can then, if at all, be invoked to restrain or defeat the enforcement of the security. When the contract has been executed, the security sold, and the proceeds applied to the payment of the debt, the courts will not interfere with the matter. Both bank and borrower are in such case equally the subjects of legal censure, and they will be left by the courts where they have placed themselves. There is another view of this case. The deceased authorized the bank, in a certain contingency, to sell his shares. Supposing it was unlawful for the bank to take those shares as security for a loan, it was not unlawful to authorize the bank to sell them when the deceased, and the defendant is the First National Bank contingency occurred. The shares being sold pursuof Xenia, Ohio, a corporation formed under the Na-ant to the authority, the proceeds would be in the tional bank act of the United States. The action is brought to recover the sum of $4,200, with interest; the complaint alleging that in October, 1876, the bank was in possession of thirty shares of its capital stock belonging to the deceased; that it then unlawfully converted them to its own use and sold them, receiving therefor the sum mentioned, which it refuses to account for or deliver to the plaintiffs, although a demand for it has been made.

error to the Circuit Court of the United States for the Southern District of Ohio. The plaintiffs are administrators of the estate of Daniel McMillan,

bank as his property. The administrators, indeed, affirm the validity of that sale by suing for the proceeds. As against the deceased, however, the money loaned was an off-set to the proceeds. In either view the administrators cannot recover.

The judgment of the court therefore must be reversed and the cause remanded for a new trial; and it is so ordered.

PROXIMATE CAUSE.

MAINE SUPREME JUDICIAL COURT, MARCH 12, 1883.

SPAULDING V. INHABITANTS OF WINSLOW.* There was a hole in a culvert on a highway, which by statute did not cause liability by the town for any accident caused by it. Plaintiff's horse took fright at the hole and ran off into a ditch against which there was no protection by railing or otherwise. Held, that if the fright of the horse at the hole was the proximate cause of the accident plaintiff could not recover, but if the other defect on the highway was the cause he could recover. If he horse became unmanageable by fright the hole in the culvert was a proximate cause; if he did not, it was not.

ACTION for personal injuries from a defect in a

town highway.

The defect complained of was a want of a railing alongside the way, by reason of which the plaintiff's wagon was upset in the ditch, his horse having shied at a hole in a culvert. The accident occurred August 4, 1881.

the shying is not occasioned by any vicious habit of an animal of that kind, but the object is of a character to startle and cause any animal of a reasonably and ordinarily well broken character to shy, then it does not preclude the plaintiff from recovering; that the two points are to be considered together; that the jury are not required to consider a cause which thus operates upon a well broken animal, an ordinarily safe and gentle animal, as a directly, efficiently and immediately contributing cause. They are not compelled so to consider it. I therefore, for the purposes of this trial, give you this rule with reference to the temporary covering placed upon the hole near the easterly end of the culvert by one of the selectmen of the town of Winslow a few hours prior to the alleged accident in this case: if you find that the temporary covering placed upon that hole near the easterly end of the culvert was placed there by one of the selectmen of the town of Winslow, acting in the capacity of a highway surveyor making repairs on the highway, and find that it was not such a condition as would render the way unsafe and inconvenient for travel, regarded as At the trial the presiding justice instructed the jury. four hours' actual notice, as they would not have if it an obstruction, and that the town did not have twentyas follows: "It will be incumbent then upon the plaint-.had not existed longer than a few hours, but find iff, in the first instance, having the burden of proof, to satisfy you that the highway was not safe and convenient at the point where he claims the accident happened; and that it was not safe and convenient for the reasons and in the particulars named and specified in his notice to the town and in his writ which has been read to you. Secondly, it will be incumbent upon him to satisfy you that an accident happened there by reason of which he sustained an injury, and that at that time there was no want of ordinary care on his part which contributed to produce that injury; that the wagon in which he was then riding was reasonably and ordinarily safe and strong and suitable to be used in that manner and for that purpose, and that the horse was a reasonably and ordinarily kind, gentle and safe horse, and reasonably and ordinarily well broken for travel upon the public way. Or if the carriage was not of that character, or the horse was not of that character, then that the actual condition of the wagon or the actual character of the horse did not contribute to produce this injury.

"Then it will be incumbent npon him to show you in the third place that the defect in the highway, if there was one, was the sole cause of the injury to him. In other words that the accident happened through the defect alone; that no want of care on his part, as I have said, and no independent, efficient cause directly and immediately contributed to produce the injury. It will then be incumbent upon him to show that the town had actual notice of the condition of the way as it was at the time of the accident; that he, after the accident, gave the notice within fourteen days. The statute I have read to you. I will not be more specific upon these points because there is no serious controversy in relation to them. I will speak of the plaintiff's notice further on.

"Now, you will perceive that the court here [the judge had read from opinion of Gray, C. J., in Stone v. Hubbardston, 100 Mass. 49,] have made a distinction which the courts in this State have not thus far made. That is, that while they uniformly adhere to the general rule, as in this State, that if any independent, efficient cause directly and immediately contributes to produce the injury, the plaintiff cannot recover; yet you are to consider that in connection with the fact of a cause produced by or through the character of an animal that is reasonably and ordinarily gentle and safe, and reasonably and ordinarily well broken for use upon the public way; so that if * Appearing in 74 Maine Reports,

nevertheless that it was a condition, an object or a material calculated and likely to frighten a horse ordinarily and reasonably safe and gentle and well broken for use upon the public way, and that the plaintiff's horse was a reasonably safe, gentle and well broken horse for travel upon the public way, and that the horse shied by reason of this temporary covering upon the culvert near the easterly end, and not by reason of any vicious habit of shying, and at the moment the carriage went into the ditch on the westerly side of the highway the horse had not passed entirely beyond the control of the driver, so that if there had been no defect in the way he would immediately have recovered control of the horse, then I instruct you that the other conditions to which your attention has been called or will be called, being fulfilled, the plaintiff may recover in this action for any damages he has sustained by reason of the injury received at that point. But if on the other hand, the object was not of a character calculated to frighten a horse of this gentle nature which I have repeatedly named, and you find that the horse shied by reasonof his own vicious habits, then you would be authorized to find that that was a directly and immediately contributing cause which would prevent the right of the plaintiff to recover, providing it did so contribute to produce the injury."

To this instruction the defendants excepted, and also moved to set aside the verdict, which was for the plaintiff in the sum of two hundred and twenty-five dollars.

The opinion states other material facts.

S. S. Brown, for plaintiff, cited Macintosh v. Bartlett, 67 Me. 130; Bacheller v. Pinkham, 68 id. 253; Lyman v. Amherst, 107 Mass. 343; Hilliard, New Trials, 284; 97 Mass. 258; 101 id. 93; 100 id. 49; 114 id. 507; 111 id. 357; 64 Me. 57; 66 id. 348; 18 id. 286. L. C. Cornish & Orville D. Baker, for defendants, referred to Stone v. Hubbardston, 100 Mass. 49; Hunt v. Pownal, 9 Vt. 411; Palmer v. Andover, 2 Cush. 600; Rowell v. Lowell, 7 Gray, 100; Titus v. Northbridge, 97 Mass. 264; Moore v. Abbott, 32 Me. 46; Coombs v. Topsham, 38 id. 204; Moulton v. Sandford, 51 id. 127; Perkins v. Fayette, 68 id. 154; Anderson v. Bath, 42 id. 346; Clark v. Lebanon, 63 id. 393; Cushing v. Bedford, 125 Mass. 526; Palmer v. Andover, 2 Cush. 600; Bemis v. Arlington, 114 Mass. 507.

PETERS, J. The plaintiff was travelling with horse and wagon upon a road in the town of Winslow, when his horse took fright at a hole, or at the fresh covering of a hole, in a culvert crossing the road, and by the

3, 1875 (chap. 178, 18 Stat. at Large, 512), his retired
general, that being the actual rank held by him when
rank and pay were changed to those of a brigadier-
the rank of a major-general did not confer on him the
he was wounded. Held, that his being retired with
office of a major-general, and that Congress had power
to change his retired rank and pay. The pay of retired
gress, and so is their rank.
officers is a matter entirely within the control of Con-
Wood v. United States.
Opinion by Blatchford, J.
[Decided April 16, 1883.]

The plaintiff testified: "It (wagon) dropped off before July 28, 1866 (ch. 299, 14 U. S. Stat. at Large, 337), a it got to the crossway. It was not the want of a rail-colonel of cavalry in the army was retired in June, ing to the crossway of which I complained. I com- 1868, with the rank and retired pay of a major-general, plain of the want of a railing where I went into the ditch. That was six feet south of the crossway." The because that was the rank of the command held by him when he was wounded. culvert was of an ordinary character. The opening Under the act of March of the culvert was only about two feet wide and seven inches in height, covered by a thickness of nineteen inches of earth, plank and ties. The road on both sides of the culvert was a level, smooth country road, twenty-three feet between its ditches. There was nothing to prevent travelers using that width of road. The plaintiff's vehicle required less than six feet of this space. The ditch on the southerly side is the only defect complained of. This was but twenty-seven inches deep at the most. The plaintiff contends that there should have been a railing between the ditch and the travelled way. There are many thousands of such places within this State. If railings were required for them, towns would have extraordinary burdens to maintain their roads. The plaintiff had twenty-three feet of width of road for his team about five feet wide, to pass over in the light of day. We feel well assured that some cause other than a defective way, for which the town was auswerable, produced the accident.

Motion sustained.

UNITED STATES SUPREME COURT

ABSTRACT.

JURISDICTION-OF FEDERAL COURT-CITIZENSHIP OF PARTIES.-If a promissory note, negotiable by the law merchant, is made by a citizen of one State to a citizen of the same State, and secured by a mortgage from the maker to the payee,an indorsee of the note can since the act of March 3, 1875, ch. 137 (1 Sup. R. S. 173), sue in the courts of the United States to foreclose the mortgage, and obtain a sale of the mortgaged property. It was held in Sheldon v. Sill, 8 How. 441, that such a suit could not be maintained under the eleventh section of the judiciary act of 1789, because in equity the mortgage was but an incident of the debt, and as the indorsee could not sue on the note, he could not sue to enforce the mortgage. The language of the court is this (p. 450): "The complainant in this case is the purchaser and assignee of a sum of money, a debt, a chose in action, not of a tract of land. He seeks to recover by this action a debt assigned to him. He is therefore the 'assignee of a chose in action,' within the letter and spirit of the act of Congress under consideration, and cannot support this action in the Circuit Court of the United States, where his assignor could not. This clearly implies that if a suit could be brought on the note, it could for the foreclosure of the mortgage, should there be no other objection to the jurisdiction than the citizenship of the payee and maker. In the judiciary act of 1789 it was expressly provided that the Circuit Courts could not take cognizance of a suit to recover the contents of any promissory note or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover the contents, if no assignment had been made, except in cases of foreign bills of exchange. The act of 1875 however removes this re

APPEAL BOND ON-CONSTRUCTION AND EFFECT OF. -(1) An appeal bond in an ordinary foreclosure suit in the courts of the United States, does not operate as security for the amount of the original decree; nor for the interest accruing thereon pending the appeal; nor for the balance due after applying the proceeds of the mortgaged premises; nor for the rents and profits, or use and detention of the property pending the appeal; but only for the costs of the appeal, and the deterioration or waste of the property, and perhaps burdens accruing upon it by non-payment of taxes, and loss by fire if not properly insured. It is very doubtful whether mere depreciation in market value is any cause of recovery on the bond. The practice of the English courts and Federal courts as to bonds on appeal reviewed. Cases cited: Catlett v. Brodie, 9 Wheat. 553; Stafford v. Union Bank, 16 How. 135; Providence Rubber Co. v. Goodyear, 6 Wall 153; French v. Shoemaker, 12 id. 86; Jerome v. McCarter, 21 id. 17; Ex parte French, 100 U. S. 1; Bailey v. Bax-striction in suits on "promissory notes negotiable by ter, 1 Mass. 156; Respublica v. Nicholson, 2 Dall. 256; Supervisors of Wayne v. Kennicott, 103 U. S. 554. (2) Where an appeal bond, instead of following the words of the statute "that the plaintiff in error or appellant shall prosecute his writ or appeal to effect, and if he fails to make his plea good, shall answer all damages and costs," superadds that he shall also "pay for the use and detention of the property covered by the mortgage in controversy during the pendency of the appeal, these words will be rejected, and the bond will be construed as having its ordinary and proper legal effect; the judge taking the bond having no right to require such an addition to the condition of an appeal and supersedeas. Sanders v. Rives, 3 Stew. (Ala.) 109; Gardner v. Woodyear, 1 Ohio, 170. This case distinguished from those in which official bonds and bonds given to the government for the purpose of enjoying some office or privilege have been sustained as contracts at common law. Omaha Hotel Co. v. Kountze. Opinion by Bradley, J. [Decided May 7, 1883.]

ARMY-PAY OF RETIRED OFFICERS SUBJECT TO LEGISLATION.-Under section 32 of the act of Congress of

the law merchant; " and now the jurisdiction in such suits is made to depend on the citizenship of the parties as in other cases. Tredway v. Sanger. Opinion by Waite, C. J.

[Decided April 23, 1883.]

NATIONAL BANK-CRIMINAL ACT BY OFFICERS OFU. S. R. S., §§ 5209 AND 5239-REQUISITES OF INDICTMENT.-(1) Section 5209, U.S. R.S. is as follows: "Every president, director, cashier, teller, clerk, or agent of abstracts, or willfully misapplies any of the moneys, any" National banking "association who embezzles, funds, or credits of the association, or who without authority from the directors issues or puts in circulation any of the notes of the association, or who without such authority issues or puts forth any certificate of deposit, draws any order or bill of exchange, makes any acceptance, or assigns any note, bond, draft, bill of exchange, mortgage, judgment, or decree, or who makes any false entry in any book, report, or statement of the association, with intent in either case to injure or defraud the association or any other company, body politic or corporate, or any individual person, or to deceive any officer of the association or any