This involted in of Co., Pac. 409. In that case the an injunction to ataxpayer who alleged that, by" of assessin,g, the mortgages relatively higher thaD: the valuatiol:l placed upqb.',Qther kinds of property, and held, tha,tJl.court shouldJlot be called upon to perform the labor of entire ass¢StSwent roll,,/Wd that the complainant, indelaying until afWl', the tax'J1)I1 had been made, and taxes 'have applied to the board of COUllty commissioners to equalizeihe assessIT,lents, and, if ag'grieved by an erroneous of the,board, he ahould have sought to the"court, unMr then in force,au· thorizinga:p)'lppeal from My' order Or decision of the county commissioners. ''!'he opinion of t#e supreme court shows that the question whether,theplaintifi adequate remedy than the one invoked was considered. The lower court was reversed, and it was distinctly held, that a general rule or method of assessing property for taxation, ,Which operlltes to discriminate against and, unduly burden any particular class of property, is unlawful in this state; that an according to sucJ+ rule or method is in fact fraudUlent, and that all aggrieved party is entitled to an injunction to prevent thecdUection of a tat levied upon such unlawful and fraudulent assessment. The deciaion of the supreme court must therefore be understood as declariD:g that the law vesting in the board of .<;ounty commissioners power to equalize assessmentfl, does not provide an exc1usiveremedynor limit the power of a court of equity. According to that decision. ,the plaintiff would be clearly entitled, by laws of this state, tqtQ.e 'telief pf9,yeq for, if this suit had been brought in a court of the state, and the same remedy should be avail. .'. . ' ,. . 'able. Under the in the amended bill, failure to make a legal tender, aJ!.d :keep. it good, does not constitute a bar to relief in equity. The complainapt is not called upon to make a tender, for the reason 'that it is .not liable for anypar:t: of the tax, there being no aSl::lessment against the bank. Moreover, a tender of less than.the whble tax le+ied)Yo'q.ldbe useless. If'the bank were legally liable fo!;' part of the tax, it would be excused from making a tender by the de.claration of the board of county commissiollPrs to, not accept less'than the. whole amount levied, which is nothing less than a of a to accept. a tender. 'l'he foregoing are my conclusions touching the several questions argUed by counsel, and I thereby to the demurrer.· .,
GLENN' v. RQOSEV'ELT et at.
(Circuit Court, S.D. Ne\v York. July 17, 1894.)
EVIDENCE-COMPARISON OF HA:N:DWRITING.
Laws N. Y. 1880, which provides that comparison of n disputed wl'iting with any. writing proved to the satisfaction of the court to be genuine shall be permitted to be made "by witnesses," and that "such
writings and the evidence of witnesses respecting' the sanie may be snbmltted to .the court and jury," does flot authorize the sutJmlssion of the writings to the jury without any comparison by witnesses.
On motion for a new trial. Burton N. Harrison, for plaintiff. Thos. F. Wentworth, for defendants. LACOMBE, Circuit Judge. An examination of the signatures of Cotting to the checks which were put in evidence, and of the signature to the St. Louis subscription list, shows that the jurJ probably based their conclusion on the comparison of these writings which they were allowed to make. Certainly, if it was error to allow them to make such comparison, their verdict should not stand. The checks were put in evidence under the state statute (chapter 36, Laws 1880), which provides:
"The comparison of a disputed writing with any writing, proved to the satisfaction of the court to be genuine, shall be permitted to be made by witnesses in all trials and proceedings, and such writings and the evidence of witnesses l'espectiug the same may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute."
In the case at bar the checks were proved to the satisfaction of the court to be genuine. No comparison of them with the disputed signature was made by any witness, but they were nevertheless submitted to the jury as evidence of the genuineness or otherwise of the writing in dispute. 'rhe plaintiff seasonably objected, and now assigns this as error. The statute in question may have been, as defendants contend, remedial, but it should not, for that reason, be so construed as to open the door for the admission of evidence calculated to mislead the jur;y. There are such variances in the handwriting of an individual at different times and under different circumstances that it is not difficult to select samples of genuine writing so dissimilar to the one in dispute that a jlll'y, uninstructed as to the fundamental characteristics which underly the variances, may easiIJ fall into error when making their comparison. The case at bar is a conspicuous instance. All the checks, which, of course, bear the signature registered at Mr. Cotting's bank, have a scroll heneath the name, and a capital 0 of the standard shape. The name as written on the subscription list is without the scroll and has a lower case c written large. In all other respects there is such similarity between them all that it is difficult to understand how any fair-minded person can escape the conviction that they were written by the same hand. Still the jury, impressed no doubt by the different type of the C and by the scroll, reached the opposite conclusion. It is suggestive that no genuine signatures of Cotting to anything but bank checks were introduced for purposes of comparison. The statute, it will be seen, permits the comparison "to be made by witnesses," and it is the "writings and the evidence of witnesses respecting the same," which may be submitted to the jury. Literally congenuine strued, it does not warrant the submission to the jury of writings, unless a comparison with the disputed writing has been made by witnesses. Certainly the "evidence" respecting the genuine
writings which is to be submitted to the jury cannot be the evidence of their genuineness, for that is addressed solely to the court, who is to determine that question to his satisfaction without interference by the jury. And no other "evidence" respecting these genuine signatures is competent, except such as the statute provides for, viz. a "co¥1parison · · · by witnesses." It is such evidence, therefore, which the statute couples with "slich writings" as proof proper to submit to the jury. The diligence of counsel has presented upon their briefs the entire b<>dY of state authorities construing this statute, and in them there is found nothing which requires a different construction. The verdict is set aside, and a new trial ordered.
TEXAS &P. RY. CO. v. NOLAN. (Circuit Court of Appeals, Fifth Circuit. May 15, 1894.) No. 217.
NEGLIGENCE-AvOIDING CoNSEQUENCES OF CONTRIBUTORY NEGLIGENCE.
The rule thatpladntiffcannot recover if himself guilty of negligence contributing to his injury, though not applicable where defendant, by the exercise of reasonable care, nlight have avoided the consequences of plaintiff's negligeuc;e, applies, without qualification, where the party inflicting the injury is not chargeable with negligence indulged after the position of the injured party was discovered, or, by the exercise then of reasonable care, would have been discovered.
Giving an instruction not applicable to the case cannot be held to have injured defendant, where other instructions gave the correct rule, and the jury could not have found for him under any proper instructions.
In Error to the Circuit Court of the UniteJ States for the Eastern District of Texas. . This was an action by the widow of James Nolan against the Texas & Pacific Railway Company for damages for the death of said Nolan. At the trial the jury found for plaintiff, and judgment for plaintiff was entered thereon. Defendant brought error. T. J. Freeman, for plaintiff in error. It. C. De Graffenried, for defendant in error. Before McCORMICK, Circuit Judge, and LOCKE, District Judge.
McCORMICK, Circuit Judge. This is a suit by the widow of James Nolan, on her own behalf and for their four minor children, to recover damages for the killing of her husband. James Nolan was a locomotive engineer, about 40 years of age, and had worked for the Texas & Pacific Railway Company about 20 years. For 7 or 8 years just before and up to January, 1893, he had run, as a locomotive engineer for that company, in and out of Longview junction, the point in Texas where the International & Great Northern Railway Company's road intersects that of the Texas & Pacifio. His family, the defendants in error, resided in Longview junction. home was near the passenger depot at that place. This depot is a union depot. At this point the course of the main track