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Parrott v. Barney.

all ideas of justice. I think that, while the defendants will be obliged to bear the loss sustained by themselves, resulting from the deplorable accident, except so far as they may have a remedy against the guilty shipper, the plaintiff, also, will be compelled to submit to the loss sustained by him from the same lamentable cause. It is one of those misfortunes which are liable to occur in human affairs, wherein those upon whom the consequences chance to fall must be the ones to suffer, unless they can find a remedy against those who are really culpable.

The plaintiff also insists, firstly-that the accident is of a class where the event itself makes out a prima facie case of negligence, and throws the burden of proving due care and circumspection on the defendants; and secondly-that every man is presumed to do his duty and conform to the law: that under this rule it must be presumed that the shipper in this instance performed his duty, and informed defendants of the dangerous character of the article, and that, although it required the proof of a negative, the burden of showing want of knowledge was thrown upon them.

I am not prepared to admit the correctness of at least the first proposition, whatever may be the rule as to the second. But under the view I take of the evidence, it is wholly unnecessary to controvert either position; for, conceding them to be correct, in my judgment the evidence on both points clearly overthrows the assumed presumption in favor of the plaintiff, and shows that there was no negligence on the part of the defendants, or their servants, and that the dangerous character of the package was not communicated to them, and that there was nothing to excite even the suspicion of a reasonable man. The package was received when accepted by the freight-measurer, O'Leary, and the tally clerk, Middlebrook, in the mode stated in the findings, and from that time it went into the great

Parrott v. Barney.

mass of freight, and no further special notice was taken of it. The receipt given by Middlebrook, although but a temporary receipt, was the original receipt, from which all subsequent ones were made up. The general receipt, way bill, and bill of lading clerks made out their papers from this, without seeing or inspecting, or having any opportunity to inspect the merchandise. This receipt was their only guide. And proof of all that took place at the time of the delivery was given.

It is sometimes necessary to prove a negative, although from the nature of things this is usually difficult, and for this reason plenary proof of a negative is not always expected, or required. 1 Greenl. Ev. § 78; Kohler v. Wells, 26 Cal. 611-12. But in this case, the proof on those points is, to my mind, full and entirely satisfactory.

Fully impressed with the importance of this case, both in view of the large amount of damages claimed, and of the important principle involved applicable to many other actions, which, I am informed, are pending in this State and elsewhere, arising out of the same and other similar accidents, I have given to it such thought and attention as my onerous duties have allowed me to bestow; and the conclusion to which my mind is brought is, that the defendants are liable for the injuries to the premises demised to and occupied by themselves, but are not liable for the injuries resulting to the premises occupied by Bell and the Union Club. This is the first case decided, so far as I am informed, arising out of these accidents, involving the points now determined. And no case involving the exact point has been brought to my attention. Should it turn out that my conclusion is wrong, I am glad to know that there is a tribunal which can and will correct my error. I have taken care to frame the findings in such a way that, if I have erred in my legal conclusions in either branch of the case, the appellate court will have

Parrott v. Barney.

the means of correcting the error by directing the proper judgment upon the facts found, without ordering a new trial.

As to the premises occupied by Wells, Fargo, & Co., the statute provides that, in an action for waste, "there may be judgment for triple damages." Prac. Act, § 250. As I understand this provision, it leaves the question as to whether the damage shall be tripled to the sound discretion of the court, to be determined according to the greater or less aggravating character of the circumstances. There are no circumstances in this case to justify inflicting damages beyond the actual amount sustained. In point of fact, the defendants repaired a large portion of the premises to the satisfaction of the plaintiff, and paid the expenses themselves, and supposed they had done so as to the whole; but it turns out in the evidence that a small portion of the expense of repairs, which, from the nature of the case, could not well be made except in connection with repairs made to other premises which defendants, according to the view taken, are not liable to repair, have been overlooked, and accordingly not been paid. For this amount the plaintiff must have judgment.

Let judgment be entered for the plaintiff for the sum of one thousand seven hundred and eighty-seven dollars and sixty-two cents, and interest at ten per cent. per annum, from August 1, 1866, in gold coin, and costs of suit.

Judgment accordingly.

Manufacturers' National Bank v. Baack.

MANUFACTURERS' NATIONAL BANK v.

BAACK.

Circuit Court, Second Circuit; Southern District of New York, January T., 1871.

NATIONAL BANKS.-POWER TO SUE.

A national bank, organized and located in one State, may bring an action in the circuit court sitting within another State, against a citizen of the latter State.

For the purpose of sustaining such a power to sue, it may be presumed that the individual members of the national bank are citizens of the State wherein the bank is located, within the meaning of Art. III. § 2 of the Constitution, and section 4 of the Judiciary Act of 1789.

Application for an injunction and receiver.

Francis C. Barlow, for the motion.

C. A. Seward and P. C. Talman, opposed.

BLATCHFORD, J.-The bill in this case describes the plaintiffs as "The Manufacturers' National Bank of Chicago, Illinois, a banking corporation, incorporated and existing under and by virtue of an act of the Congress of the United States, entitled "An Act to provide a national currency secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof, approved June 3, 1864, and having capacity to sue by the above title, and a citizen of the State of Illinois, and located and residing and doing business in the city of Chicago, in said State." It describes the defendants as citizens of the State of New York. The allegations of the bill as to the incorporation and location of the plaintiffs are admitted by

Manufacturers' National Bank v. Baack.

stipulation. The plaintiffs move for an injunction, and the appointment of a receiver in the case; and the question arises whether, on the allegations of the bill thus admitted, with the fact that the allegation of the bill as to the citizenship of the defendants is not denied by the answers, this court has jurisdiction of the suit.

The eighth section of the act of June 3, 1864, 13 Stat. at L. 101, under which the plaintiffs are incorporated, provides, that every association formed pursuant to the provisions of the act shall be a body corporate, and may have a corporate seal, and shall have succession by the name designated in its organization certificate, and may, by such name, "sue and be sued, complain and defend, in any court of law and equity, as fully as natural persons." The effect of this provision is not to give to the corporation the right to sue, or the capacity to be sued, in every court within the United States, whether State or Federal, or to give to every such court jurisdiction over every suit which may be brought in it, wherein the corporation is plaintiff or defendant. Its only proper effect is to provide that the corporation, when it has come or been brought as a suitor into a court which has jurisdiction of the suit, shall stand in court, in all respects, in the same position, as regards its own rights, or the rights of others against it, as to the subject matter of the suit, in which a natural person who is a suitor in such court can stand. The question as to the proper court in which the suit is to be brought, in respect of jurisdiction, is left to be determined by other provisions of law. If a natural person had brought this suit in this court against the defendants, as citizens of New York, he would have been obliged to aver himself to be a citizen of some State other than New York,-the bill being what is known as a creditor's bill, founded on a judgment at law and praying for equitable relief. There

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