the first, or to the drawer, will inure to the benefit of all intermediate parties. In Bailey on Bills, 557, however, the doctrine is limited to cases where the party giving the notice is himself liable to pay the bill or note. Judge Story, in citing Mr. Bailey with approval (Story on Prom. Notes, § 303), objects to the breadth of statement employed in most of the cases, as intimating that notice by parties would be sufficient, regardless of the fact that they might not themselves be liable to pay the same, or entitled to re-imbursement. Says the learned author: "Suppose, for example, a second indorser should give notice to a first or third indorser, having received none himself, and therefore not being bound to pay the note, and the holder has not given any notice whatsoever to any of the indorsers, the question in such a case would arise, whether the notice was available in favor of the holder. Suppose the last indorser has received no notice from the holder, and is therefore discharged, would notice by him to the prior indorsers be available for the holder?" The main difficulty in answering this question, is to get an accurate conception of the state of case supposed. When he says that the second indorser who gives notice to one of the others has "received none himself, and therefore not being bound to pay the note,” it is difficult to understand whether it is meant that the prior indorser is discharged by the lapse of time without notice, or whether he has not yet received notice from subsequent parties, but has given it at once, without awaiting the notice which may still come to hand in time to fix his liability. In the case of the last indorser who is discharged for the want of notice, there could be no difficulty in answering the question in the negative without disturbing the doctrine laid down by the cases cited above, or in the note to the section above quoted, where the statements are regarded as too broad. If the last indorser has been discharged, he has, to all intents and purposes, ceased to be a party to the note. When he is discharged, it is not only because no notice has been given him by the holder, but because the time has expired within which the holder could give notice effectually; and it would be difficult to imagine how the antecedent indorsers could be held, when their subsequent indorsers were discharged by the expiration of the time without notice, unless there were circumstances to excuse notice to such antecedent parties. Where, however, the party giving the notice is one who is still liable to receive notice by which he will be bound, there could be no doubt that, under the authorities, a notice from him would not only bind antecedent parties, but that such notice would inure to the benefit of any other party to the bill who sought to avail himself of it, in an action against such antecedent party. But when any party has been discharged by the laches of another, the right of action against him is gone, and he becomes a stranger to the bill. 2 Daniel, 42.

The reasons given why notice from a stranger to the bill should not operate effectually, are hardly

satisfactory, in view of some of the later cases. Lord Ellenborough, in Stewart v. Kennett, (2 Camp. 177,) says that "the notice must come from some person who can give the drawer or indorser his immediate remedy on the bill; otherwise it is merely a historical fact." The earlier authorities, both English and American, are generally in accord with this view, though some of them maintain the doctrine that the notice may come from the acceptor, which was held to be the law by Lord Ellenborough himself in the case of Rosher v. Kiernan, (4 Camp. 87,) although it was said in Hopes v. Alden, (6 East. 16,) that such notice from the drawer would not be sufficient. In Stanton v. Blossom, (14 Mass. 116,) notice from the drawer, who had refused acceptance, was held not to charge prior parties with notice of such non-acceptance, as it did not come from the proper party. This case is in conflict with Rosher v. Kiernan, supra, as there could be no material difference between a notice of non-acceptance from the drawee and a notice of non-payment from the acceptor. However, Mr. Daniel, in his late treatise on Negotiable Instruments, p. 44, regards the law as settled, that the acceptor may give notice of nonpayment.

There can be no doubt that a notice from the agent of the holder or indorser will be sufficient. This has been repeatedly declared as the doctrine governing cases where notes or bills were left with a bank, and the cashier gave the notice, as well as in other instances of agency. And such a notice may be given by the agent to the principal, where the note has been deposited in the customary way, with the same effect, and subject to the same formalities, as if the bank were a holder for value. Coperthwaite v. Sheffield, 1 Sanf., (N.Y.) 416; Hazlett v. Poultney, 1 Nott & M. (S. C.) 466; Turner v. Lague, 2 Johns. 179; Bank of Cape Fear v. Seawell, 2 Hawks, (N. C.) 569; Mead v. Enge, 5 Cow. 303; Payne v. Patrick, 21 Tex. 680; Green v, Farley, 2 Ala. 322; Bk. of State v. Vaughan, 36 Mo. 90.

In such case, however, no special formalities are required in order to constitute the bank the agent of the holder. A mere delivery of the note is sufficient to establish the relation, with all its attendant responsibilities and immunities. In the case of Mt. Pleasant Bank v. McLeran, (26 Ia. 306.) it was held that notice from the drawee was sufficient, when he was acting as the agent of the holder. And in one of the earlier English cases (Lysaght v. Bryant, 2 Carrington & Kirwan, 1016), it was decided that, where the party giving the notice was a stranger to the bill, but represented that he was the holder, and gave the notice in that capacity, and the real holder subsequently adopted and ratified his acts, the notice was as valid as though it had come from the real holder or his antecedently appointed agent. If the rules laid down in these two cases may be considered as a fair presentation of the law governing similar cases, there is nothing to hinder a holder or indorser from availing himself of the notice given by an acceptor, drawee, or even an entire stranger

to the bill. The agent's authority may arise from subsequent notification, as well as from prior appointment, and when notice is given by the drawee, the acceptor or the stranger, the holder or indorser has but to adopt the act as his own to give it all the force and effect of a notice from himself. As the law seems to have been gradually approaching a recognition of the right of any party to a bill to avail himself of notice by any one, such will probably be the recognized rule, sooner or later. In Glasgow v. Pratte, 8 Mo, 336, it is held that the maker of a note may give the notice, and this case is cited with evident approval by the court in First Nat. Bk.v. Ryerson, (23 Ia. 508.) In Konig v. Bayard, (1 Pet. 250,) an opinion by Chief Justice Marshall recognizes the validity of a notice from an acceptor, supra protest.

It does not seem at all essential that the party giving the notice of dishonor should have any antecedent knowledge or information upon the subject, provided the fact of dishonor be subsequently established. In the case of Jennings v. Roberts, (29 Eng. L. & E. 118,) the defendant had indorsed a bill to plaintiff, which was accepted and payable in London. Plaintiff indorsed it to a country bank. On the day it fell due the plaintiff saw the manager of the bank (his indorsee), by whom he was informed that the bill would be back from London in the morning, This information was communicated the same day to defendant by plaintiff, with a request for the money to meet it. It subsequently appeared that the manager, at the time he gave the above information, did not know that the bill was dishonored; but such proved to be the case, and it was returned, as he anticipated, on the following day. It was held that this want of knowledge did not vitiate the notice, so long as the fact communicated proved to be true.

In Harrison v. Ruscoe, 15 M. & W. 231, it was decided that misrepresentation as to the name of the person giving the notice would not entirely vitiate the same. The circumstances of the case may be stated thus: The attorney of C gave notice of dishonor in due time to A, but stated therein, by mistake, that he was directed to do so by B, from whom he had no authority to demand payment of the bill, or give notice of dishonor. Although it was held that this mistake would not totally avoid the bill, it effected a change in the status of the party giving the notice, to the extent that he was regarded as occupying the same position towards the party notified as would have been occupied by B, from whom the notice purported to come, had he authorized it, and any defense which A would have had against B would be available against C. So also in the case of Rogerson v. Hare, (W. W. & D. 63,) plaintiff, the holder of the bill, told his attorney to give notice to defendant in the name of plaintiff's indorser. He did so, and the court held that, as the person from whom he had authority was a party to the bill, and the person in whose name the notice was given was also a party, the case came within the principle laid down in Chapman v. Keane, supra, and that the notice was valid and binding.

In case of the death of the holder or party from whom the notice should emanate, it should be given by his executor or administrator, within a reasonable time after his appointment. Story on Prom. Notes, § 304. And in case of the death of one of several joint owners, the notice should be by the survivor. Evans v. Evans, 9 Paige, 178; Story on Prom. Notes, § 304. In case of the bankruptcy of the holder, the notice should be given by the assignee. If it falls due after the selection or appointment of the assignee, he is governed by the same rules as to time as other parties holding in their own right; but if it becomes due prior to the appointment, then the assignee should give notice within a reasonable time after such appointment. As the bankrupt holder stands in privity with the assignee, has an interest in the note or bill, and represents the interests of his estate, until the selection or appointment of his assignee, a notice from him before the assignment would be valid. At all events would this be so, if the assignee subsequently ratified the acts of the bankrupt. Story on Prom. Notes, § 305. If the holder be an infant or person under guardianship, notice from either the guardian or the ward would be equally good. And if the holder be a feme sole, and she marries before the maturity of the note, notice of dishonor should be given by her husband, or by her with his consent, but would probably be available without direct proof of such consent, even where the common-law disabilities of married women prevail. See Chitty on Bills, 23, 24, 26; Burrough v. Moss, 10 B. & C. 558; McNeilage v. Holloway, 1 B. & Ald. 218. And where the note is given to a married woman, probably the rule would be the same as to notice. Philliskirk v. Pluckwell, 2 M. & S. 393.

Where the bill of exchange was made payable at a time certain, and presentment for acceptance was thereby rendered unnecessary, it was held, in Union National Bank v. Marr's, Administrator, (6 Bush, 614,) that, if the bill was presented for acceptance before the day of maturity, and acceptance refused, it would be necessary for the holder to give notice of such refusal to all the parties to the bill upon whom he wished to rely for pay

THE office of the black rod, the incumbent of which came into prominent notice at the recent opening of the British parliament, is so old that its origin is all but lost in obscurity. The holder was originally a servant about the court, his emblem denoting that he was to keep order, and see that people behaved with decorum in the House of Lords. From time to time his status improved and the emoluments increased. His duties are now mostly confined to summoning the House of Commons, in the name of the sovereign, to attend at the bar of the House of Lords to hear the opening or valedictory speech from the throne. The House of Commons makes it a point to shut its doors in the face of the messenger, to show that they are quite independent of the Lords. The black rod has to knock thrice at the door of the Commons, when the sergeant-at-arms interviews him through a small aperture in the door, and keeps him waiting until the speaker is informed of the messenger's presence, and says: "Admit him." Black rod then advances gravely along the floor, bowing to the speaker every three or four paces. After delivering his message he retires backward, as he came, and makes it a great point in that most awkward process to go over the same line as on entering.

PRACTICE IN FEDERAL COURTS.

BEARDSLEY v. LITTELL ET AL.

United States Circuit Court, Southern District of New York, January, 1877.

Before HON. SAMUEL BLATCHFORD, District Judge.

1. PRACTICE IN FEDERAL COURTS - HOW FAR GOV. ERNED BY STATE PROCEDURE.-Section 914 of the Revised Statutes of the United States, which provides that "the practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and district courts shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held," etc, does not embrace rules connected with the subject of the evidence of witnesses, which are regulated by specific provisions of law found in the same title of the same statute.

2. EXAMINATION OF WITNESS BEFORE TRIAL.-The provi sion of the New York Code of Procedure providing for the examination of witnesses before trial is not adopted by the Federal courts in that state, as the mode of proof in such courts is regulated by sec. 861 of the Revised Statutes.

3. WHETHER THE EXPRESSION "practice, pleadings, and forms and modes of proceeding," as used in sec. 914 of the Revised Statutes, applies to the evidence of witnesses, either as to its character or competency or the mode of taking it, quaere.

BLATCHFORD, J.:

This is an action at law to recover damages for the infringement of letters patent. It is at issue, and ready for trial. The plaintiff now presents to the court his affidavit setting forth that the testimony of the defendant Littell is material and necessary for the plaintiff, upon the questions of the kind and description of the machines used by the defendants, and claimed to be an infringement of the plaintiff's patent, "the amount which he has used the same," and the profits resulting from such use; that these matters are peculiarly within the knowledge of said defendant, and can not well be proved except by his testimony; and that it is necessary to take his examination before the trial, in order that the plaintiff may properly prepare for the trial. On this affidavit an application is made for an order that the defendant appear for examination as a witness before the trial.

Section 389 of chapter 6 of the Code of Procedure of the State of New York provides as follows: "No action to obtain discovery under oath, in aid of the prosecution or defense of another action, shall be allowed, nor shall any examination of a party he had, on behalf of the adverse party, except in the manner provided by this chapter." Section 390 provides as follows: "A party to an action may be examined as a witness, at the instance of the adverse party, or of any one of several adverse parties, and for that purpose may be compelled in the same manner, and subject to the same rules of examination, as any other witness, to testify, either at the trial, or conditionally, or upon commission." Section 391 provides as follows: "The examination, instead of being had at the trial, as provided in the last section, may be had at any time before the trial, at the option of the party claiming it, before a judge of the court, or a county judge, on a previous notice to the party to be examined, and any other adverse party, of at least five days, unless, for good cause shown, the judge order otherwise. But the party to be examined shall not be compelled to attend in any other county than that of his residence, or where he may be served with a summons for his attendance." It is provided by section 914 of the Revised Statutes of the United States, that "the practice, pleadings, and forms and modes of proceeding in civil causes, other

than equity and admiralty causes, in the circuit and district courts, shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding." The application now made is founded on the view that the practice of examining an adverse party before the trial, as a witness in a suit at law, has become the practice of this court by virtue of the above section 914. This is not a correct view.

Section 861 of the Revised Statutes provides that "the mode of proof in the trial of actions at common law shall be by oral testimony and examination of witnesses in open court, except as hereinafter provided." There is nothing in the Constitution or Statutes of the United States which sanctions any other mode of trial in a common-law action, than a trial by jury in the presence of the court, unless such a trial is waived. Therefore, where the statute speaks of the examination of witnesses in open court in the trial of an action at common law, it means the examination of witnesses in the presence of the court and the jury, at the trial, and not before the trial. But, as some witnesses might be out of the jurisdiction of the court, or would probably be absent from such jurisdiction at the time of the trial, provision was to be made for such cases. Hence the words in section 861, "except as hereinafter provided." In pursuance of this view, section 863 makes provision for taking by deposition, de bene esse, before the trial, by certain specified officers, out of court, the testimony of witnesses who, though within the United States, are beyond the reach of a subpæna, or who are bound on a voyage to sea, or who are about to go before the trial out of the United States, or who are about to go before the trial to some place within the United States which is beyond the reach of a subpœna, or who are ancient and infirm. Section 866 makes provision for taking depositions under a dedimus potestatem according to common usage "—that is, by commission, and for taking depositions in perpetuam rei memoriam. Sections 882 and following sections provide for documentary evidence. These are all the statutory provisions enacted by the United States on the subject; and it is quite clear that they cover the whole subject of oral testimony in actions at common law in the courts of the United States. There is nothing in section 914 which supersedes them; and under them, the examination of an adverse party as a witness before trial, in a common-law suit, can not be had.

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It may well be doubted whether there is anything in section 914 which applied to the subject of the evidence of witnesses, either as to its character or competency, or the mode of taking it. The expression, "practice, pleadings, and forms and modes of proceeding,” is well satisfied without including in it the subject of evidence. At all events, it can not be regarded as covering matters connected with the subject of the evidence of witnesses, which are regulated by specific provisions of law found in the same title of the same statute. In the case of the Indianapolis and St. Louis R. R. Co. v. Horst (9 Ch. L. N. 114), the Supreme Court of the United States, in commenting on section 914, say that the language of that section, that the conformity mentioned in it is to be "as near as may be," means, "not as near as may be possible, or as near as may be practicable;" that the indefiniteness of the expression devolves upon the federal court the duty of construing and applying the provision in each case, and gives to the court the power to reject any subordinate provision in a state statute, which, in its judgment, would unwisely encumber the administration of the law, or tend to defeat the ends of justice, in the federal court; and that, while section 914 is, to a large extent, manda

tory, it is also, to some extent, only directory and advisory. In the spirit of that language, it may be observed, that section 389 of the Code of Procedure of New York abolishes an action to obtain discovery under oath, in aid of the prosecution or defense of another action, and then section 391 allows an examination of an adverse party as a witness before the trial, evidently as a substitute for a discovery before trial in an ancillary action. But, a suit in equity to obtain discovery under oath, in aid of the prosecution or defense of a suit at law, is not abolished in the courts of the United States. The distinction between suits in equity and actions at common law exists in the courts of the United States. Such distinction is recognized by the Constitution, and can not be abolished by Congress. It is also recognized in section 914. Therefore, one of the reasons for the practice, in the courts of the State of New York, of examining an adverse party as a witness before trial in a suit at law, does not exist in respect to the federal courts.

It is also worthy of consideration, that section 391 of the Code of Procedure of New York provides, that the party to be examined shall be examined before a judge of the court, or a county judge, and shall not be compelled to attend in any other county than that of his residence, or where he may be served with a summons for his attendance. The examination, if allowed in the federal court, must take place before a judge of the court. There is no alternative officer to take the place of the county judge. If the party can not be compelled to go out of the county where he resides, the benefit of the provision would practically be confined to suits pending in the counties where the federal judges should happen to reside or to be present, unless the party to be examined could incidentally be found in such county. There would be no uniformity in such a provision, and such a practice could hardly be said, as a general practice, to conform, "as near as may be," to the state practice.

Moreover, in view of the limited judicial force in the courts of this district, in comparison with the amount of business pending in those courts, and of the fact that the examination, if had, must take place before a judge of the court, it is quite clear that an allowance of the practice would "unwisely encumber the administration of the law," especially in view of the fact that a party may, at the trial, be called as a witness by the adverse party, in a suit at law, and may, if a case exists, under section 863, be examined as a witness, before trial, on behalf of the adverse party, by deposition de bene esse.

The application is refused; and I am authorized to say that the Circuit Judge concurs in the foregoing views.

2. LEGISLATIVE POWER-FINE AND EXEMPLARY DAMAGES DISTINGUISHED.-The general rule that, where an act is the subject of both a criminal prosecution and a civil action for damages, exemplary damages will not be allowed in such action, is a proper subject of legislative action. There is a distinction between a fine and exemplary damages; a fine is an amercement for a past violation of law, but exemplary damages are intended to prevent a future repetition of the offense.

3. GENERAL AND SPECIAL VERDICT-EXCESSIVE DAMAGES.-Where the general verdict gave the plaintiff $500 damages, and a special finding of the jury showed that $200 of that sum was allowed as exemplary damages, the court above can not hold that the damages so assessed were excessive.

HOWK, J., delivered the opinion of the court:

This was an action by appellee as plaintiff against the appellant, as defendant, in the court below. In her complaint the appellee alleged in substance that, for twenty years prior to the commencement of her suit, appellee had been and then was the wife of one Albert Smith, upon whose good conduct, frugality and personal labor she had been and was dependent for her support; that said Albert Smith, when not intoxicated, nor under the effects of intoxication, was an industrious laboring man and a skillful artisan, and regularly earned and received for his labor five dollars per day, applicable to the support of themselves and family, and which was so applied by him accordingly; that said Albert Smith was in the habit of becoming intoxicated, and appellant, well knowing the same, on divers days and nights between the 3d day of March, 1873, and the commencement of said action, at Petersburgh, in Pike County, Indiana, unlawfully, willfully, maliciously, and after notice to him not to do so, sold to said Albert Smith intoxicating liquors, thereby causing him frequently to get intoxicated, in consequence of which he as often became and was infirm and diseased, and for times varying from one to ten days, and aggregating within said period not less than six months, or two-thirds of the whole time, was incapable of labor, and by reason thereof appellee, as his wife, was compelled to and did labor for their support; and that said Albert Smith, while so intoxicated, and while so infirm and diseased from the effects of intoxication, was cruel, morose and unkind in his treatment of appellee, and entirely helpless and dependent, and, in addition to the exertion required for the support of herself and children, imposed upon her the additional burden of providing him with necessary food, and wearied her with the labor, attention and care she was compelled, by his said conduct, to bestow upon him; whereby appellee averred that she had been and was injured in her person, property and means of support, to her damage $5,000, for which judgment was demanded.

To this complaint appellant demurred for the want of sufficient facts to constitute a cause of action, which demurrer was overruled, and to this decision appellant excepted. And appellant then answered the complaint in denial of its allegations. And the action, being at issue, was tried by a jury in the court below, and a general verdict was returned for the appellee, assessing her damages at $500. And under the instructions of the court below, the jury also returned, with their general verdict, their special finding upon a particular question of fact stated in writing, as follows: "State what amount you allow to plaintiff, if anything, for exemplary damages?" "Two hundred dollars."

Appellant then, upon certain written causes, moved the court below for a new trial, which motion was ovverruled, and to this decision appellant excepted, and judgment was rendered for appellee upon the general verdict.

Appellant has assigned in this court two alleged errors, as follows: 1. Overruling his demurrer to

appellee's complaint; and, 2. Overruling his motion for a new trial.

It is apparent, from her complaint, that appellee sued the appellant in this action to enforce a right of action which the appellee had under the provisions of the 12th section of the act then in force, to regulate the sale of intoxicating liquors, etc., approved February 27th, 1873. Acts of 1873, 151. It was provided in and by the 12th section of said act, among other things, that every wife who shall be injured in person, property or means of support, by an intoxicated husband, or in consequence of the intoxication, habitual or otherwise, of such husband, shall have a right of action in her name, "against any person or persons who shall, by selling, bartering, or giving away intoxicating liquor, have caused the intoxication, in whole or in part," of her husband, "for all damages, and for exemplary damages." Acts of 1873, 155.

Appellee's complaint seems to have been carefully prepared to conform to the requirements of the said 12th section of said act, and the demurrer thereto was correctly overruled.

The second alleged error in the record of this action was the overruling, by the court below, of appellant's motion for a new trial. In his motion appellant assigned five distinct causes for such new trial, as follows:

1. The verdict of the jury was contrary to law; 2. The verdict of the jury was contrary to the evidence; 3. The assessment of damages was excessive; 4. Error of the court below in giving to the jury instructions numbered 1, 2, 3, 4, 5, and 6; and, 5. Error of the court below in refusing to give to the jury the instructions asked for by appellant.

As we understand the brief of appellant's learned counsel in this cause, all the questions presented by the alleged erroneous decision of the court below, in overruling appellant's motion for a new trial, except such as relate exclusively to the allowance of exemplary damages, are expressly waived by appellant in this court. In other words, it is conceded that, under the law and the evidence, the general verdict of the jury, in so far as it embraced only the damages actually sustained by the appellee, must be allowed to stand. But, inasmuch as it appears from the special finding of the jury, in their answer to the interrogatory stated to them in writing by the court, that in their assessment of appellee's damages, in and by their general verdict, they had allowed the appellee for exemplary damages the sum of $200, it is earnestly insisted in this court, by the learned attorneys of the appellant, that to the extent of the sum confessedly allowed by the jury, as and for exemplary damages, the damages assessed by the jury, in and by their general verdict, were both illegal and excessive. While it is admitted that the general assembly of this state, in the enactment of the said 12th section of the aforementioned act, intended to, and did give a right of action to the person mentioned in said section, for the recovery, not only of actual damages, but also of exemplary damages, it is urged by appellant that the general assembly "is prohibited by our constitution from enacting such a law." In support of this position appellant directs our attention to the 14th section of the 1st article of the constitution of this state, which provides that 66 no person shall be put in jeopardy twice for the same offense." But we fail to see the applicability of this provision of our state constitution to the section of the act now under consideration. We recognize the rule which ordinarily prevails, that, where a given act is, or may be, "the subject of a criminal prosecution and also of a civil action for damages in favor of the party thereby injured, exemplary damages will not be allowed in such action." This rule, however, like most of the rules of civil practice, is a proper subject

of legislative action, and the general assembly may well provide in such a case as the case at bar, that the injured party may recover, not only actual damages, but also exemplary damages, and the courts of the state will be bound to carry out and enforce such provision.

In considering this subject, appellant's counsel seem to confound the terms fine and exemplary damages, and to regard the one as the synonym of the other; but there is a marked and well-defined difference between the meaning of these terms. A fine is an amercement imposed upon a person for a past violation of law; but exemplary damages have reference rather to the future than the past conduct of the offender, and are not given as a compensation to the injured party, but as an admonition to the offender not to repeat the offense. We can not hold in this case that the damages assessed by the jury in their general verdict were excessive, because it appeared from the special finding of the jury that two-fifths of the damages assessed were exemplary damages. And the general question, as to whether the damages in any case are or are not excessive, is one peculiarly within the province of the court below. That court has the opportunity of seeing and, to some extent, knowing parties, witnesses and jurors, and therefore has facilities, that we can not have, for determining whether the verdict is just and right or is the result of passion or prejudice. In this case the court below passed upon the questions presented by appellant's motion for a new trial, including the question of excessive damages, and we can not see that the court below erred in overruling the motion for such new trial.

The judgment of the court below is affirmed at appellant's costs.

TAX TITLES.

CALLANAN v. HURLEY.

Supreme Court of the United States, October Term,

1876.

1. TREASURER'S DEED-EVIDENCE.-A treasurer's deed for lands sold for delinquent taxes in the State of Iowa, if substantially regular in form, is, under the statutes of that state, at least prima facie evidence that a sale was made, and if there was a bona fide sale, in substance or in fact, the deed is conclusive evidence that it was made at the proper time and in the proper manner.

2. CASE IN JUDGMENT.-In a case where a tax-deed regular in form recited that the land was sold January 4th, and where the treasurer certified that the sales of land for delinquent taxes in the county began on that day, and were continued from day to day until January 18th, and that he entered all the sales as made on the 4th, it was held that a sale of land at any time during the period from the 4th to the 18th was valid, and that recording such sale as made on the first day, though actually made later, did not impair the title.

APPEAL from the Circuit Court of the United States for the District of Iowa.

Mr. Justice STRONG delivered the opinion of the Court.

The plaintiff below asserts title to the lands in controversy by virtue of his having entered them pursuant to the provisions of the act of Congress, and the defendant Callanan claims to be the owner by force of taxdeeds of the treasurer of the County of Cass, founded on the alleged sales made in January, 1864, for delinquent taxes. These deeds having been placed upon record are, as the plaintiff avers, a cloud upon his title, and the object of his bill is to procure their cancellation. He charges that they are void for several rea