STANLEY v. BOARD OF SUP'RS OF ALBANY ao.
desire to raise some of the questions which have been discussed in the argument, I think it would be advisable for them to amend the bill; ,and, if they wish, leave will be granted for that purpose.
STANLEY v. BOARD OF SUP'RS OJ: ALBANY Co.
(Circuit Court, No D. New York. April,I881.)
1. BUIT ARISING UNDER THE LAWS OF THE UNITED STATES-ACT OF
MARCH a, 1875-NATIONAL .BANK SHAREff- TAXATION-REv. ST. t 5219. An action to enforce a right conferred by section 5219 of the Revised Statutes, regarding the taxation of property in the shares of national banking associations, is a suit arising" under the laws of the United States," within the meaning of the act of March a, 1875.[En.
Hale <t Bulkley, for plaintiff. R. W. Peckham, for defendant. WALLACE, D. J. The court has jurisdiction of this action, notwithstanding the plaintiff's assignors are oitizens of this state, because this is a suit arising "under the laws of the of United States" within the meaning of the act of March 3, 1875, respecting the jurisdiction of circuit c.ourts. The action is to enforce a right oonferred upon the plaintiff and his assignors by section 5219, of the Revised Statutes of the United States, regarding the taxation of property in the shares of national banking associations. As was said by Chief Justice MarShall, "a case may be truly said to arise under the oonstitution, or a law of. the United States, whenever its correct decision depends upon the construction of either," (Cohen v. Virginia, 6 Wheat. 379;) or where the title or right set up by the party may be defeated by one construction of the constitution or laws of the United States, or sustained by the opposite construction. Osborne v. Bank of U. S. 9 Wheat. 822. The right of the plaintiff depends upon the construction of section 5219. If that section is'meaut v.6,no.6-36
to interdict such an assessment as that ohvhieh the plain. tiff complains, his right is sustained by a construction to such effect, and will be defeated by the opposite construction. The act of 1875 employs the identical phraseology by which the constitution defines the grant of judicial power which congress may confer upon the inferior federal courts, and, I cannot doubt, is intended to confer the grant to the full extent authorized by the constitution. J udgment ,is ordered for the plaintiff.
Nom. See 5 F:\llD.
and others v.
BOSTON MARINE INS.
(Circuit Oourt, 8. D. New York. --,1881.) L MARINE
INSURANCE COMPLIANCE. PROMISSORY REPRESENTATION SUBSTANTIAL
A substantial compliance with a promissory representation is suffi. cient to sustain a contract fol" marine insurance.
2; SAME-SEAWORTHiNESs-BuRDEN OF' PROOF.
Seaworthiness must be show,'l by the assured, where proof of such fact is necessary excuse the non-compliance with a promissory representation. 3.
:MOTION FOR A NEW TRIAL-ExCEPTION TO INSTRUCTION-SPECIFIC OBJECTION: ' "
The failure to specify the precise point of objection, upon a broad exception to an instruction, where the latter may· very possibly have had a material influence upon the verdict, will not defeat a motion for a new trial upon the ltround that such instruction was erroneous. 4.
!URINE INSURANCE CoMPLIANCE. PROMISSORY REPRESENTATION ' SUBSTANTIAL
The cargo of a vessel which had been pronounced unseaworthy was insured upon, the representation that· she was "to be repaired." Upon a new survey, ,however, it was found that no repairs were. required, and the S/.l.me were therefore not made. Beld, that the fair constructionaf the representatIOn, assuming it not to have been the statement of an expectation, but a promissory'representation, was that the vesselw&s to be put i!1 a seaworthy condition for her before the cOIl1mencflmentof the risk; and that, if ,she was in that condition when she left the port from which the cargo was insured,
the representation was stltisfied.