830

fEDERAL REPORTER,

vol. ,64.

sion; 'andiI1effective foriany purpose. , 'It is, however, held by the Dlinoisthat a copy of an ordinance, under ,the corporation,' with is evidence of and legal' pn"blication.. In Lindsay v. Oity'of Chicago, 115 TIl. 120, 123,3 N.E. 443, the court say:
"It tS"toH'plltin to admit of argument that where the ordinances of a town or city have been printed in book or pamphlet form, purporting to be pub. lished l>Y authority of the board' of city cO\1ncil, the book shall be ,1lS evidence of the l>lissllge of the ordinance, because this is the plain langul'!-ge ,of the statute. ,Buta.book of ordinances was not put in evidence. TheJ>etltloner, in lieu of the book, put'ln evidence a certified copy, attested by the clerk; under the seal of the corporation. This, in our opinion, proved the ,passage of the ordinlJ,nqeaseffectually as the fact would have been proved llall a,printed book. of ordina,nces been Ildmitted. The language found in the first part of' section 4 [section 66, supra], 'All ordinances and the date of publication may be proven by the certificate of the clerk, under the seal of ' the corporation,' will admit of no other construction. It is said this meanstbat. you may thus prove the contents of an ordinance. But such is not the, of the act Tbe language i$,the ordinanCe may be proven. ,The' legislature no doubt intended, tiy the use of this, language, that a certified copy of an ordinance, under the seal of the corporation, made by the clerk of the councll,should have the same force and effect. as evidence, asaprlntfd book of ordinances, which,in express terms,is evidenCe of tbepassage and publication of an ordi,nance." ,

To the same effect is the case of Railroad Co. v. Voelker, 129 TIL 540,22 N. E. 20. In this case the court say:
"Under these decisions, as well as upon principle, it must be held that the ct;>PleS of the ordinances In this case, certified by the city clerk, and by the corporate seal, were competent evidence tending to shOw that!!aid ordinances had been duly passed by the city council, and that they bad gone into effect in one of the modes prescribed by the-charter."

The construction upon tllestatute by the supreme court is binding on us, and .it follows that no error was committed in permit,ting the copy of the ordinance in question to be read in evi· dence to the jury. "rhis view renders it unnecessary to express any opinion on the question whether or not the printed pamphlet copy. of ordinances was improperly admitted in evidence. If it were C(luceded to be it was merely cumulative evidence of a fact already proven by competent evidence, and hence it was harmless. The judgment is reversed, at the cost of the appellee, and remanded to the court below with instructions to grant a new trial, and to permit the declaration to be amended if the appellee so desires.
CLEVELAND, C., C. & ST. L. RY. CO. v. TARTT. (Circuit Court of Appeals, Seventh Circuit. December 14, 1894.)
No. 128.

RAILROAD COMPANIES-INJURIES TO PERSONS ON TRACK-INSTRUCTIONS-INFANT.

Where a bright, intelUgent boy, eight years and seven months old, is kllled by a train while walking along the track, it is reversible error to refuse to instruct the jUry, in an actiOlll fOI· his death, that if he entered the right of way. for his, own convenience, and walked along the track in a dan· gerous position, and did not use his faculties as a person of like age could,

CLEVELAND;

c.,e.&:

ST. L. RY. CO. V., TARTT.

831

and failed to use ordinary prudence to learn if a train was approaching, when by so doing be migbt have avoided injury, he was not exercising ordinary. care, and tbe plaintiff could not recover unless the injury was willfully'inflicted.

In Error to the Circuit Court of the United States for the Southern District of lllinois. Action on the case by James T. Tartt, administrator of the estate of Jesse H. Phillips, Jr., against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, for causing the death of said Phillips. Plaintiff obtained judgment. Defendant brings error. John T. Dye and George F. McNulty, for plaintiff in error. A. R. Taylor, for defendant in error. Before WOODS and JENKINS, Circuit Judges, and BAKER, District Judge. BAKER, District Judge. The plaintiff's intestate was a boy eight years, seven months, and six days old at the time he was killed. He was a strong and healthy boy, and bright and intelligent for his age. The facts in this case, and the circumstances connected with the fatal collision, are sufficiently disclosed in the case of Railway Co. v. Tartt (just decided) 64 Fed. 823. A number of questions are presented by the assignment of errors which have been argued by counsel. The decedent was old enough to be prima facie responsible for his trespasses, as well as chargeable with contributory negligence for a failure to exercise ordinary care, having regard to his age and intelligence, and the circumstances in which he was placed when killed. The court declined to instruct the jury that if they believed that the deceased, for his own conon the right of way of the railroad company, and venience, walked along the track, either on it or close to it, in a dangerous position, and did not use his faculties as a person of like age could, and failed to use ordinary prudence to learn if a train was approaching, when the use of such faculties as he possessed would have notified him that a train was approaching in time to avoid the injury, he was not exercising ordinary care, and the plaintiff could not recover unless the injury was willfully and wantonly inflicted. This instruction, and others of like character, stated a proposition of law with substantial accuracy, which was applicable to the facts of the case, and it was error to refuse so to instruct the jury. l'he charge given by the court did not clearly and distinctly embody the substance of the above instruction. In view of what is said in the case of Railway Co. v. Tartt, nothing further need be added in this case. The case is reversed, at the costs of the appellee, and remanded to the court below with instructions to grant a new trial, and to permit the appellee to amend his declaration if he so desires.

832

I'EDERAL REPORTER,

vol. 64.

FISHER v. HANOVER NAT. BANK.

(Olrcult Court of Appeals, Second Circuit.
No. 10.

December 3, 1894.)

8ET·OFF-MATURITY OF DEMANDS-FRACTIONS OF A DAY.

May 8,1891, the H. Bank of New York was indebted to the S. Bank of Philadelphia for a balance of deposit of $9,688.17, and held the S. Bank's demand note for $25,000. On that day, about 11 a. m., the H. Bank telegraphed the S. Bank, demanding payment of the note. On the same day, between 11 and 12 o'clock, the bank examiner took possession of the S. Bank, and closed its doors. Hela, that the court should not be astute to divide the day into fractions, to deprive the solvent debtor of a just defense, and that the note might be set off against the deposit balance in an action to recover the latter.

In Error to the Circuit Court of the United States for the Southern District of New York. This was an action by Benjamin F. Fisher, as receiver of the Spring Garden National Bank, against the Hanover National Bank, to recovera balance of deposit. Judginent was rendered in the circuit court 'for the defendant. Plaintiff brings error. Silas W. Pettit, for plaintiff in error. Thos. S. Moore, for defendant in error. Before LACOMBE and SHIPMAN, Circuit Judges. LACOMBE, Circuit Judge. The Spring Garden National Bank of Philadelphia was taken possession of by the bank examiner, by direction of the comptroller of the currency, on May 8, 1891, it being then insolvent The plaintiff in error was dilly appointed its receiver. On May 8, 1891, the Hanover National Bank of New York was indebted to the Spring Garden Bank in the sum of $9,688.17, balance of deposit account. At the same time the Hanover Bank held a note of the Spring Garden Bank originally for $30,000, on which $5,000 had been paid, and secured by a pledge of several as collateral security. This action was brought to promissory recover the deposit balance and the collaterals, or their proceeds. When the proofs were completed, however, all question as to the collaterals was eliminated from the case, and tlie only point left to be determined is whether the Hanover Bank was entitled to set off its claim upon the $30,000 note against the receiver's claim for the deposit balance. The note of the Spring Garden Bank was a demand note, and the evidence shows that "about 11 o'clock of May 8, 1891, or shortly after," the Hanover Bank telegraphed the Spring Garden Bank, calling the loan for immediate payment. The bank examiner took possession of the latter bank "some time between 11 and 12 o'clock on the 8th of May, 1891." On the day of the failure, therefore, the defendant bank owed the Spring Garden Bank the balance of deposits, and the Spring Garden Bank owed defendant bank the amount of the loan. There is no reason in justice or in equity why a court should be astute to divide the chq into fractions, in order to deprive- the solvent