16 Ill. 26. March 23, 1886. Preston v. Hawley. Opin-through the same land. We think the safer and bet

UNITED STATES SUPREME COURT AB-
STRACT.

BANKS-FORGERY OF CHECK BY DEPOSITOR'S CLERK
-NEGLECT OF DEPOSITOR TO EXAMINE VOUCHERS-

ESTOPPEL. In an action growing out of successive al-
terations of bank checks, when under the evidence
fair ground for controversy appears as to whether the
officers of the bank exercised due caution before pay-
ing the altered checks, and whether the depositor
omitted, to the injury of the bank, to do what ordi-
nary care and prudence required of him, it is not
proper to withdraw the case from the jury. It seems
to us that if the case had been submitted to the jury,
and they had found such negligence upon the part of
the depositor as precluded him from disputing the cor-
rectness of the account rendered by the bank, the ver-
dict could not have been set aside as wholly unsup-
ported by the evidence. In their relations with de-
positors, banks are held, as they ought to be, to rigid
responsibility. But the principles governing those re-
lations ought not to be so extended as to invite or en-
courage such negligence by the depositors in the ex-
amination of their bank accounts as is inconsistent
with the relations of the parties, or with those estab-
lished rules and usages, sanctioned by business men
of ordinary prudence and sagacity, which are or ought
to be known to depositors. We must not be under-
stood as holding that the examination by the depos-
itor of his account must be so close and thorough as to
exclude the possibility of any error whatever being
overlooked by him. Nor do we mean to hold that the
depositor is wanting in proper care when he imposes
upon some competent person the duty of making that
examination, and of giving timely notice to the bank of
objections to the account. If the examination is made
by such an agent or clerk in good faith, and with ordi-
nary diligence, and due notice given of any error in
the account, the depositor discharges his duty to the
bank. But when, as in this case, the agent commits
the forgeries which misled the bank and injured the
depositor, and therefore has an interest in concealing
the facts, the principal occupies no better position
than he would have done had no one been designated
by him to make the reguired examination-without at
least showing that he exercised reasonable diligence
in supervising the conduct of the agent while the lat-
ter was discharging the trust committed to him. In
the absence of such supervision, the mere designation
of an agent to discharge a duty resting primarily upon
the principal cannot be deemed the equivalent of per-
formance by the latter. While no rule can be laid
down that will cover every transaction between a bank
and its depositor, it is sufficient to say that the latter's
duty is discharged when he exercises such diligence
as is required by the circumstances of the particular
case, including the relations of the parties and the es-
tablished or known usage of banking business. Weis-
ser v. Denison, 10 N. Y. 70; Welsh v. German-Ameri-
can Bank, 73 id. 424; S. C., 29 Am. Rep. 175; Frank v.
Chemical Nat. Bank, 84 N. Y. 213; S. C., 38 Am. Rep.
501. Manufacturers' Nat. Bank v. Barnes, 65 Ill. 69;
S. C., 16 Am. Rep. 576; National Bank v. Tappan, 6
Kaus. 456, 467, distinguished. An instructive case is
that of Dana v. National Bank of the Republic, 132
Mass. 156, 158, where the issue was between the bank
and its depositor in reference to a check which the
latter's clerk altered after it had been signed, and be-
fore it was paid by the bank. The court said that the
plaintiffs, who were the depositors, owed to the bank
"the duty of exercising due diligence to give it infor-
mation that the payment was unauthorized; and this
included not only due diligence in giving notice after
knowledge of the forgery, but also due diligence in

discovering it. If the plaintiffs knew of the mistake, or if they had that notice of it which consists in the knowledge of facts which, by the exercise of due care and diligence will disclose it, they failed in their duty, and adoption of the check and ratification of the pay. ment will be implied. They cannot now require the defendant to correct a mistake to its injury, from which it might have protected itself but for the negli gence of the plaintiffs. Whether the plaintiffs were required in the exercise of due diligence to read the monthly statements or to examine the checks, and how careful an examination they were bound to make and what inferences are to be drawn, depend upon the nature and course of dealing between the parties, and the particular circumstances under which the statements and checks were delivered to them." So in Hardy v. Chesapeake Bank, 51 Md. 591; S. C., 34 Am. Rep. 325, which was also a case where checks forged by the confidential clerk of the depositor had been paid by the bank, and as shown by the pass-book, were charged to his account. The court, upon an elaborate review of the authorities, said upon the general question that "there is a duty owing from the customer to the bank to act with that ordinary diligence and care that prudent business men ordinarily bestow on such cases, in the examination and comparison of the debits and credits contained in his bank or pass book, in or der to detect any errors or mistakes therein. More than this under ordinary circumstances could not be required." It results from what has been said that the court erred in peremptorily instructing the jury to find for the plaintiffs. Railroad Co. v. Stout, 17 Wall. 663; and Cooke v. U. S., Wiggins v. Burkham, Dana v. National Bank of the Republic, and Harding v. Chesa peake Bauk, ubi supra. Leather Manuf'rs' Nat. Bank v. Morgan. March 1, 1886. Opinion by Harlan, J.

CONSTITUTIONAL LAW-INTERNAL REVENUE-EXPORTATION STAMP.-(1) The exportation stamp required to be affixed to every package of tobacco intended for exportation, before its removal from the factory, again declared constitutional, and the decision in Pace v. Burgess, 92 U. S. 372, reaffirmed; Burwell v. Burgess, 32 Gratt. 472, disapproved. (2) An excise laid on tobacco before its removal from the factory, is not a duty on "exports," or "on articles exported," within the prohibition of the Constitution, even though the tobacco be intended for exportation. We have lately decided in Coe v. Errol, 116 U. S. 517, that goods intended for exportation to another State are liable to taxation as part of the general mass of property of the State of their origin until actually started in course of transportation to the State of their destination, or delivered to a common carrier for that purpose, provided they are taxed in the usual way in which such property is taxed, and not taxed by reason or because of such exportation, or intended expor tation, and that the carrying of them to and depositing them at a depot for the purpose of transportation is no part of that transportation. Now the constitutional prohibition against taxing exports is substantially the same when directed to the United States as when directed to a State. In the one case the words, "No tax or duty shall be laid on articles exported from any State." Art. 1, § 9, par. 5. In the other they are, "No State shall, without the consent of Congress, lay any imposts or duties on imports or exports." Art. 1, § 10, par. 2. The prohibition in both cases has reference to the imposition of duties on goods by reason or because of their exportation, or intended exportation, or whilst they are being exported. That would be laying a tax or duty on exports, or on articles exported, within the meaning of the Constitution. But a general tax laid on all property alike, and not levied on goods in course of expor

Appeals of Virginia has in a recent case, saying: "It is very clear that the States are prohibited from taxing either the property of the Federal government, or the instrumentalities by which its powers are carried into execution. This doctrine is well settled." W.U. Tel. Co. v. Richmond, 26 Gratt. 1. Van Brocklin v. Anderson. March 7, 1886. Opinion by Gray, J.

INTERSTATE COMMERCE-TAXATION OF SLEEP

ING CARS.-A privilege tax imposed upon sleeping cars, the property of a corporation having no domicile in the State imposing the tax, the cars themselves having no situs for the purposes of taxation in such State, is an interference with interstate commerce, and cannot be enforced when such cars are used in passing and repassing through the State. The case of Attorney-General v. London & N. W. Ry. Co., in the Court of Appeal (6 Q. B. Div. 216), before Lord Chief Justice Coleridge and Lord Justices Baggallay and Brett, affirming the judgment of the Exchequer Division (5 Exch. Div. 247) is instructive in the above point of view as to the subject in hand. There the railway company attached to its night trains sleeping carriages for the accommodation of such of its first-class passengers as might choose to avail themselves of it. For the use of these carriages they were charged an extra sum in addition to the ordinary first-class fare. Besides couches with pillows, sheets and blankets, each carriage contained a lavatory and other conveniences. Passengers using such carriages were not disturbed during the night by demands for their tickets, and if they arrived at their destination in the night the passengers were allowed to remain in their beds until the morning. Under a statute imposing a percentage duty "upon all sums received or charged for the hire, fare, or conveyance of passengers" on any railway, the government claimed and was allowed the duty on the extra sum charged for the use of the sleeping carriage. That case is in harmony with the views before taken in regard to the present case. The fare paid by the interstate passenger to the railroad company, and that paid to the plaintiff, added together, were merely a charge for his conveyance in a particular way, and there was really but one charge for the transit, though the total amount paid was divided among two recipients. The service of a single one, of interstate transit, with certain accommodations for comfort, and what was paid to the plaintiff was part of a charge for the conveyance of the passenger. The views above expressed are in harmony with numerous decisions which have been made by this court on the subject to which they relate. In Almy v. State, 24 How. 169, a stamp tax had been imposed by the State on bills of lading for the transportation of gold or silver from any point within the State to any point without it, and was held by this court to be invalid, and in Woodruff v. Parham, 8 Wall. 123, 138, it was said by this court, Mr. Justice Miller delivering its opinion, that that stamp tax "was a regulation of commerce, a tax imposed upon the transportation of goods from one State to another, over the high seas, in conflict with the freedom of transit of goods and persons between one State and another, which is within the rule laid down in Crandall v. Nevada, 6 Wall. 35, and with the authority of Congress to regulate commerce among the States." In the State Freight Tax case, 15 Wall. 232, 281, it was said that a State cannot tax persons for passing through or out of it; that interstate transportation of passengers is beyond the reach of a State Legislature; and that a tax upon it amounts to a tax upon the passengers transported. In Railroad Co. v. Maryland, 21 Wall. 456, 472, Mr. Justice Bradley, in speaking for the court, said that a Stute cannot impose a tax or duty on the movements or operations of commerce between the States, because it

would be regulation of such commerce "in a manner which is essential to the rights of all, and therefore requiring the exclusive legislation of Congress," being "a tax because of the transportation," and "therefore virtually a tax on the transportation." The decisions in the various cases in this court on the subject of a tax by a State on the bringing in of passengers from foreign countries, and which are collected and commented on by Mr. Justice Miller in delivering the opinion of this court in Head Money cases, 112 U. 8 580, 591, show it to be a settled matter that to tax the transit of passengers from foreign countries or between the States is to regulate commerce. The principles which governed the decisions in Welton v. Missouri, 91 U. S. 275; Guy v. Baltimore, 100 id. 434, and Moran v. New Orleans, 112 id. 69, holding unlawful the State taxes in those cases on interstate commerce in merchandise are equally applicable to the tax in this case on the transit of passengers. The rule which governs the subject is accurately and tersely stated by Mr. Justice Field in delivering the opinion of the court in Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 211. The case of Telegraph Co. v. Texas, 105 U. S. 460, in regard of a State tax on telegraphic messages sent out of a State, is a kindred case. The whole subject. in reference to a State tax imposed for selling goods brought into a State from other States, was recently fully considered by this court in Walling v. Michigan, 6 Sup. Ct. Rep. 454; and in that case Mr. Justice Bradley, speaking for the court, says: "We have also repeatedly held that so long as Congress does not pass any law to regulate commerce among the several States, it thereby indicates its will that such commerce shall be free and untrammelled." See Welton v. Missouri, 91 U. S. 275, 282; Machine Co. v. Gage, 100 id, 676, 678; County of Mobile v. Kimball, 102 id. 691, 697; Gloucester Ferry Co. v. Pennsylvania, 114 id. 196, 201; Brown v. Houston, id. 622, 631, where the cases on that point are collected. Osborne v. Mobile, 16 Wall. 479, and Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365, distinguished. Southern Car Co. v. Gaines, 3 Tenn. Ch. 587, disapproved. Pickard v. Pullmun Southern Car Co. March 1, 1886. Opinion by Blatchford, J.

EXECUTION-SETTING ASIDE SALE FOR FRAUD AND INADEQUACY OF PRICE.-It is a principle of law as well as of natural justice, that greater consideration and care are due to persons known to be unable to take care of themselves than to those who are fully able to do so. The driver of a team, seeing a child or a woman, or a person of known feeble intellect in the street, is bound to exercise greater care and diligence to avoid doing them harm than would be obligatory if it was a grown and capable man. In dealing with a man whose rights, without his knowledge, but which by due diligence he might know, are passing away by lapse of time into another's hands, the latter may per haps justify himself in the eye of the law (though not in conscience) in preserving a wary and crafty silence, so as to put his victim off his guard and bring him within his own power, while he would be perfectly inexcusable in taking such advantage of a woman, unskilled in business, and unused to the stratagems which are sometimes resorted to by unscrupulous persons. In view of this just standard of human action, which a court of equity always recognizes, the conduct of the defendant Graffam appears in a very unenviable light. What is the scheme which has been carried out and is now sought to be sustained in this court? Nothing more nor less than to get and keep possession of the complainant's property, worth $10,000, to satisfy a paltry claim of less than $200; and this has been accomplished by keeping from her all knowledge of the device, lulling her into security until the year for re

22 Barb. 167, 173; Seaman v. Riggins, 22 N. J. Eq. 214; Eberhart v. Gilchrist, 11 id. 857; Campbell v. Gardner, id. 424; Marlatt v. Warwick, 18 id. 108; Klopping v. Stellmacher, 21 id. 328; Wetzler v. Schaumann, 24 id. 60; Carson's Sale, 6 Watts. 140; Surget v. Byers, Hemp. 715; Byers v. Surget, 19 How. 303; Andrews v. Scotton, 2 Bland, 629; Glenn v. Clapp, 11 Gill & J. 1; House v. Walker, 4 Md. Ch. 62; Young v. Teague, Bailey Eq. 14; White v. Floyd, Speer Ch. 351; Hart v. Bleight, 3 T. B. Mon. 273; Reed v. Carter, 1 Blackf. 410; Pierce v. Kneeland, 7 Wis. 224; Montague v. Dawes, 14 Allen, 369; Drinan v. Nichols, 115 Mass. 353. From the cases here cited we may draw the general conclusion that if the inadequacy of price is so gross as to shock the conscience, or if in addition to gross inadequacy, the purchaser has been guilty of any unfairness, or has taken any undue advantage, or if the owner of the property, or party interested in it has been, for any other reason, misled or surprised, then the sale will be regarded as fraudulent and void, or the party injured will be permitted to redeem the property sold. Great inadequacy requires only slight circumstances of unfairness in the conduct of the party benefited by the sale to raise the presumption of fraud. Graffam v. Burgess. March 1, 1886. Opinion by Bradley, J. Miller, Wood, Matthews and Gray, JJ., dissenting.

ABSTRACTS OF VARIOUS RECENT DE-
CISIONS.

demption passed by, having her operations watched and her footsteps dogged, and clandestinely seizing possession in her temporary absence. It is insisted that the proceedings were all conducted according to the forms of law. Very likely. Some of the most atrocious frauds are committed in that way. Indeed, the greater the fraud intended the more particular the parties to it often are to proceed according to the strictest forms of law. Considering the amount of the stake to be won, and the overwhelming injury to be inflicted upon an unsuspecting woman, it is difficult to regard with equanimity the proceedings of the defendant as the year of redemption drew to its close, and after it had terminated. The fact is virtually admitted that he kept up a regular corps of spies to watch her movements while she was laying out hundreds of dollars in repairs to the property, in order to find a favorable moment, when she was absent, to take possession of her home and that he seized such a moment, and did take possession and remove all her furniture and chattels, even to her clothing and private papers, and virtually turned her into the streets. These admitted facts are enough of themselves to show the animus and intent of the defendant. No man with an honest purpose could have done this, whatever aggravation he may have had relating to the payment of his claim. There were other methods to which he could and would have resorted. A piano or a mirror would probably have satisfied his whole claim. The pretense that before striking the blow he gave the complainant warning by calling upon her and telling her that he had bought the premises, and that she must settle the case, does not palliate the defend- CONSTITUTIONAL LAW-TAXATION-ASSESSMENT OF ant's conduct or change its bearing on the case. It COST OF REPAVING HIGHWAYS.-A board of viewers was evidently done, not for the purpose of getting his arbitrarily designated a portion of the city of Pittsmoney, or getting an arrangement, but to give a bet-burgh that should pay the cost of repaving the roadter coloring to his proceedings. In any light in which way of a public street, and apportioned among and Graffam's conduct may be viewed, it is clear that he assessed upon the properties in the designated locality did not pursue an open, straightforward course. As the cost of repaving. Held, that the legislation auwe view the proofs, he evidently conceived the design thorizing such a system of taxation was unconstituof getting complainant's property for a mere nominal tional. The viewers have the power to carve out arconsideration, or else of getting her into his power so bitrarily a district from the general municipality that as to compel her to comply with any exorbitant de- shall, in whole or in part, bear the burden of the promands he might choose to make. He knew she was posed alteration or repairs. This involves a principle ignorant of the sale, and of the position in which the of taxation that we refused to acknowledge in the sale placed her. He stood by and saw her expending cases of the Washington Avenue, 69 Penn. St. 364, and large sums of money on the property in total uncon- the Saw Mill Run Bridge, 85 id. 169; it is utterly vicsciousness of his proceedings, and of the means of in- ious, and can be sustained by no authority. That any juring her which he held in his hands. Instead of un- part of a municipality should be arbitrarily set apart deceiving her, he gave a mere perfunctory notice that by a board of viewers, and specially taxed for an imif she did not settle the claims which he held he would provement which belongs to the whole of it, is a have to take it out of her property, and pursued just proposition involving so gross perversion of constitusuch a course as was calculated to lull instead of ex- tional right that it will not bear discussion. The citing any suspicion of the real danger in which she viewers also, without any fixed rule, but according to stood; all the time purposing to take possession of the their own notions as to what the property-owner property for his own use as soon as her back was ought to pay, are to apportion the tax as they may turned, and keeping spies to watch her proceedings, think proper. Thus, we have first, the uncertainty as and to find a favorable opportunity of clandestinely to what the district shall be, and second, of the slipping into the premises in her absence. If this is amount of the tax, and both are made to depend upon not fraud, we should have great difficulty in defining the judgment of a board of viewers. The Constituwhat fraud is. In this country Lord Eldon's views tion provides that "all taxes shall be uniform, upon were adopted at an early day by the courts, and the the same class of subjects, within the territorial iimits rule has become almost universal that a sale will not of the authority levying the tax, and shall be levied be set aside for inadequacy of price, unless the inade- and collected under general laws." The Legislature quacy be so great as to shock the conscience, or unless has the right to confer upon municipalities the power there be additional circumstances against its fairness; to assess the cost of local improvements upon the being very much the rule that has always prevailed in properties benefited thereby, such as a sewer which is England as to setting aside sales after the master's re- designed for the drainage of a particular street or loport had been confirmed. Livingston v. Byrne, 11 cality, or a sidewalk, without which a house, in a Johns. 555, 566 (1814); Williamson v. Dale, 3 Johns. town or city, cannot be said to be finished, though the Ch. 290, 292 (1818); Howell v. Baker, 4 id. 118 (1819); public has the right of way over it, the greater benefit Tiernan v. Wilson, 6 id. 411 (1822); Duncan v. Dodd, 2 of which results to the property itself. But when we Paige, 99 (1830); Collier v. Whipple, 13 Wend. 224, 226 come to a street or other highway, which is primarily (1834); Tripp v. Cook, 26 id. 143; Lefevre v. Laraway, designed, not for the use or welfare of the inhabitants