Hence the writ of error will only lie where | 5. the decision is adverse to the right claimed. To the same effect are Dover v. Richards, 151 U. S. 658, 666, 38 L. ed. 305, 308, 14 Sup. Ct. Rep. 452; Sayward v. Denny, 158 U. S. 180, 39 L. ed. 941, 15 Sup. Ct. Rep. 777; Jer. sey City & B. R. Co. v. Morgan, 160 U. S. 288, 40 L. ed. 430, 16 Sup. Ct. Rep. 276; Rae v. Homestead Loan & Guaranty Co. 176 U. S. 121, 20 Sup. Ct. Rep. 341, 44 L. ed.; Abbott v. Tacoma Bank of Commerce, 175 U. Submitted March 13, 1900. Decided April S. 409, 20 Sup. Ct. Rep. 153, 44 L. ed. —. Except so far as the case under considera

tion required a construction of the above-APPEAL from a decision of the Supreme

JULIA BARTH, Executrix of Jacob Barth, thereafter died, leaving a will, which was

proved in February, 1892, and by order of the court in March, 1896, the action was reAppeal from territorial court-findings of vived in the name of Julia Barth, the appel fact-additional findings on appeal-evi-lee, who was the executrix named in the will. dence of county warrants-burden of proof of genuineness and execution.

4. An affidavit of verification in an action on The case came on for trial before the court, county warrants, that the facts stated in the a jury trial having been waived, and the answer as defenses to the various causes of court, having decided it, signed a statement action declared on are true, and that the of the facts found by it, in which it was warrants sued on are not genuine, is a suffi-stated that evidence had been introduced cient compliance with a statute requiring the verification of any answer containing a denial upon the trial, both oral and documentary, of the execution of an instrument on which and upon the admission of the plaintiff the suit is brought. court found that the figures on eleven of the

warrants (duly described and identified) had | courts in cases of trial by jury shall be exbeen altered and changed after they had been ercised by writ of error, and in all other issued, and that such alterations and changes cases by appeal, according to such rules and vitiated and rendered null and void those regulations as to form and modes of proceedwarrants as against the defendant, and that ing as the said Supreme Court have prethey were not valid claims against the coun- scribed, or may hereafter prescribe: Proty. The court then made a general finding vided, That on appeal, instead of the evithat all of the other warrants sued on were dence at large, a statement of the facts of the valid and subsisting legal claims against the case in the nature of a special verdict, and county, and that plaintiff was entitled to re- also the rulings of the court on the admission cover upon each warrant the amount named or rejection of evidence, when excepted to, therein, which, with interest, amounted to shall be made and certified by the court beabout the sum of $14,000 and for that sum low, and transmitted to the Supreme Court, judgment was directed to be entered, which together with the transcript of the proceedwas subsequently done. There was no fur-ings and judgment or decree," etc. ther or special finding made by the trial

court.

From this judgment an appeal was taken by the county to the supreme court of the territory of Arizona, where it was affirmed. The supreme court at the time of affirming the judgment made and signed by its chief justice a statement of facts in the case as follows:

"The supreme court takes the facts as found by the district court on the trial in that court and as shown by the record, and makes them the statement of the facts in this cause.

"This court finds that the district court did not commit error in finding against the plea of limitation set up by appellant.

The legislature of the territory passed an act in 1897 providing as follows:

"Sec. 1. Whenever an appeal or writ of error is taken from any district or circuit court of this territory to the supreme court of the territory, the appellant or plaintiff in error, as the case may be, may have the testimony taken in the case transcribed and certified by the court reporter and file the same with the papers in the case, and thereupon it shall become and be a part of the record in such case.

"Sec. 5. All rulings made by the court below in opposition to the plaintiff in error or appellant shall be taken as excepted to by the party appealing or suing out the writ of error, and when assigned as error in the brief shall be reviewed by the supreme court without any bill of exceptions or other assignment of errors as herein provided."

"The court further finds that the district court did not commit error in granting and rendering judgment in favor of appellee on the warrants sued on and against appellant, notwithstanding the verified answer of ap- This last act was passed subsequently to pellant. The supreme court further finds the trial of this action, but immediately aftthat the district court did not commit error er the filing of findings herein, and, pursuin refusing to render judgment for appellant ant to its provisions, the reporter's notes of on the verified answer of appellant, notwith- trial, with his certificate, were returned upon standing appellee did not introduce any evi-appeal, and are contained in this record. dence to establish the genuineness of said warrants for which appellee asked judgment, because the court finds that the warrants were verity of themselves, and the verified answer only put appellant in position in court to prove the facts set up in her answer, and did not put appellee on proof of their genuineness; hence the supreme court finds as a conclusion that the judgment of the district court should be affirmed. Judgment of affirmation and confirmation is therefore ordered and directed.

"This June 11th, 1898."

The county has appealed to this court from the judgment of the supreme court of the territory.

Mr. J. F. Wilson for appellant.
Mr. Reuben. Hatch for appellee.

Mr. Justice Peckham, after stating the facts, delivered the opinion of the court:

The statute approved April 7, 1874, entitled "An Act Concerning the Practice in Territorial Courts and Appeals Therefrom" (18 Stat. at L. 27, chap. 80), by the 2d section provides:

"That the appellate jurisdiction of the Supreme Court of the United States over the judgments and decrees of said territorial

This act could give us no jurisdiction to review an objection to evidence taken upon the trial, if no exception were taken, for the act of Congress of 1874, above cited, provides for a review in this court only when the decisions of the court were excepted to, and our jurisdiction is regulated by that act. Grayson v. Lynch, 163 U. S. 468, 474, 41 L. ed. 230, 232, 16 Sup. Ct. Rep. 1064.

Upon a review of a judgment in a case not tried by jury and taken by appeal from the supreme court of a territory, this court is by statute restricted to an inquiry whether the findings of fact made by the court below. support its judgment, and to a review of exceptions duly taken to rulings on admission or rejection of evidence. Grayson v. Lynch, 163 U. S. 468, 41 L. ed. 230, 16 Sup. Ct. Rep. 1064; Bear Lake & River Waterworks & Irrig. Co. v. Garland, 164 U. S. 1, 18, 41 L. ed. 327, 334, 17 Sup. Ct. Rep. 7; Harrison v. Perea, 168 U. S. 311, 323, 42 L. ed. 478, 482, 18 Sup. Ct. Rep. 129; Young v. Amy, 171 U. S. 179, 183, 43 L. ed. 127, 128, 18 Sup. Ct. Rep. 802.

There is no bill of exceptions in the record, and there is nothing to show that any exception was taken on the trial to the admission or rejection of evidence. Counsel for appellee therefore urges that the only inquiry before this court is whether the facts

found by the trial court authorize the judg-| want of funds; Presented Dec. 31, 1884. D. ment which was entered; and he claims that Baca, Treasurer, A. Ruiz, Deputy. Sol. upon those findings there can be no question| Barth;" also with the word "Forgery" that the judgment entered is right. This marked in red ink across the faces of the wardoes not give the full and proper force to the rants. No proof whatever was given as to additional finding of facts by the supreme the genuineness of these signatures. court to which it is entitled. Although in that finding it is said that "the supreme court takes the facts as found by the district court on the trial in that court, and as shown by the record, and makes them the statement of the facts in this cause," yet a perusal of the statement made by the supreme court ren-fied in ample time to call upon the plaintiff ders it plain that such court found other facts in addition to those adopted from the district court, and those facts found by it should be regarded in the decision of this

What we regard as additional facts in the statement of the supreme court are regarded by counsel for the appellee as conclusions of law only and he contends that we are con-ity of the board of supervisors of the counfined to the general findings of fact made by the district court and adopted by the supreme court, and that upon those facts the appellee is clearly entitled to judgment. We cannot acquiesce in the correctness of the claim so made.

attention, and we think there is no principle | Their execution was alleged and proved, and upon which such a holding could stand.

The cases referred to by counsel simply hold the burden of proof shifted after there has been proof of the execution of the warrants; that such proof makes out a prima facie case against the county. Such are the cases of Floyd County Comrs. v. Day, 19 Ind. 450, and Leavenworth County Comrs. v. Keller, 6 Kan. 510. In both those cases the warrants were proved to have been signed by the proper authorities of the county before they were admitted in evidence, and it was said in the Indiana case, upon these facts, that "the officer, in the discharge of his general powers, will be presumed to have done his duty, in drawing a warrant or order, till the contrary appears; and hence such order makes a prima facie cause of action," citing Hamilton v. Newcastle & D. R. Co. 9 Ind. 359. And in the Kansas case it appeared that the county board audited and allowed the bill of claimant, and that a county warrant was drawn in his favor for the amount due, and signed by the chairman of the board, and it was held that upon those facts an action might be maintained on the warrant, but that it was liable to be defeated by showing that the tribunal which issued it had no authority to make the allowance on which the warrant was issued. In other words, that proof being given of the signature of the proper officer, the warrant was admissible in evidence and constituted a prima facie case against the county, and any facts going to show that no cause of action existed rested upon the defendant to prove.

In Grayson v. Latham, 84 Ala. 546, 549, 550, 4 So. 200, 202, 866, two county warrants were sued on which were alleged and purported to have been issued by the commissioners of the county of Pickens and signed by the probate judge. In delivering the opinion of the court, Stone, Chief Justice, said:

the question decided had no relevancy to the matter here under discussion.

No case cited by counsel shows that there is anything peculiar to a paper in the form of a county warrant, which proves itself upon mere production.

It is clear, then, that at common law, in an action upon such an instrument, and upon a pleading denying the execution thereof by the defendant, and setting up its forgery, the plaintiff in order to be entitled to put the instrument in evidence, and thereby to make a prima facie case, would be compelled to prove its execution. The question is, what difference the statute of Arizona makes in this rule.

The Revised Statutes of Arizona, 1887, provide:

"735. (Sec. 87.) Any answer setting up any of the following matters, unless the truth of the pleadings appear of record, shall be verified by affidavit:

"8. A denial of the execution by himself or by his authority, of any instrument in writing upon which any pleading is founded, in whole or in part, and charged to have been executed by him or by his authority, and not alleged to be lost or destroyed. Where such instrument in writing is charged to have been executed by a person then deceased, the affidavit will be sufficient if it state that the affiant has reason to believe and does believe that such instrument was not executed by the decedent or by his authority."

The answer in this case did deny the execution on behalf of the county of these warrants, and alleged that they were forgeries made to defraud it. The affidavit of verification was made by the clerk of the board of supervisors, who swore that the facts stated in the answer, as defenses to the various causes of action declared on, were true, "The warrants declared on, issued and and that the warrants sued on were not signed by the judge of probate, as they were genuine. The statute does not require that shown to have been, prima facie imported a the affidavit should contain a denial of the liability on the county. Upon the execution of the instrument on which suit question we have been discussing, the plaintiff is brought. It requires that any answer made a prima facie case when he produced which contains a denial of the execution of and proved his warrants, showed that they an instrument shall be verified, and the verihad been registered, proved that, in the re-fication in this case is not open to the obceipt and disbursement of county funds, the time had arrived for their payment according to their place on the registry, and that payment has been demanded and refused; or, if payment was not shown to have been demanded, by proving that demand would have been unnecessary. Making this prima facie case, if made, the burden would then be shifted to the defendants to overturn the presumption of liability."

Another case relied upon to sustain the ruling of the courts below is that of Wall v. Monroe County, 103 U. S. 74, 26 L. ed. 430. That case does not show that the warrants were proved by their mere production; on the contrary, it appears that the warrants were drawn by the clerk of the county upon the treasurer in favor of one Frank Gallagher, and transferred by him to the plaintiff.

20 S. C.-46.

jection of insufficiency urged by the appellee. We have, then, the fact as stated by the supreme court of the territory, that this answer was verified, and that the appellee did not introduce any evidence to establish the genuineness of the warrants sued on, and as a conclusion of law from those facts the court held the plaintiff entitled to judgment on the ground that the verified answer did not put the plaintiff to proof of the genuineness of the warrants.

It seems plain to us that the court did not give that force to the verification of the answer which it was entitled to, and that by reason of such verification the defendant was not only put in position to prove the facts set up in the answer, but the plaintiff in the action was thereby compelled to prove the

trains to stop at such stations when adequate train service has been provided for local traffic.

execution of the warrants by the proper officers of the county.

[No. 198.]

Statutes similar to this have been passed in other states, and it has been held in Colorado, in Lothrop v. Roberts, 16 Colo. 250, 254, 27 Pac. 698, that an answer denying the Argued and Submitted March 16, 1900. Deexecution of a note, under oath, made it cided April 30, 1900. necessary for the plaintiff to give proof of its execution before the note was properly ad-State of Illinois to review a decision afN ERROR to the Supreme Court of the

missible in evidence.

In Horn v. Volcano Water Co. 13 Cal. 62, 73 Am. Dec. 569, under a somewhat similar statute, where the answer was a general denial without verification, the genuineness and due execution of the note sued on were regarded as admitted.

To the same effect is Corcoran v. Doll, 32 Cal. 82, 88, where it was stated that the action being upon a note, and the complaint containing a copy, and the answer not verified, the due execution of the note was admitted.

IN

firming a judgment awarding a mandamus
to compel a railroad company to stop passen-
ger trains at a county seat. Reversed.
See same case below, 175 Ill. 359, 51 N.
E. 842.

Statement by Mr. Justice Brown:

This was a petition for a writ of mandamus filed in the circuit court for the county of Montgomery, by the state's attorney for that county, to compel the defendant railway company, which for several years past has In Shepherd v. Royce, 71 Ill. App. 321, un- operated, and is now operating, a railroad der a similar statute, it was held that the ef- from St. Louis, Missouri, through the counfect of the verification of the plea setting up ty of Montgomery and the city of Hillsboro, the forgery of a note sued on was to cast the county seat of such county, to Indianap upon appellant the burden of proving the exe-olis, Indiana, to stop a regular passenger cution of the note as at common law, citing Wallace v. Wallace, 8 Ill. App. 69.

The Michigan courts have decided in the same way upon the same kind of a statute. Ortmann v. Merchants' Bank, 41 Mich. 482, 2 N. W. 677; New York Iron Mine v. Citizen's Bank, 44 Mich. 344, 6 N. W. 823.

We have no doubt that the effect of the statute of Arizona is that when the defendant does not verify his answer in a case provided for therein, the note or warrant or other paper sued on is admitted as genuine, but when the answer denying that fact is verified, the plaintiff must prove it as he would have had to do at common law in a case where the genuineness of the paper was put at issue by the pleadings.

Upon the facts found by the district judge and accepted by the supreme court of the territory in this case, and upon the additional facts found by that court, we are of opinion that the judgment entered under its direction is erroneous and not warranted by those facts, and therefore it is reversed, and the case remanded, with directions to grant a new trial, and it is so ordered.

(177 U. S. 514)

CLEVELAND, CINCINNATI, CHICAGO, & ST. LOUIS RAILWAY COMPANY, Piff. in Err.,

v.

train designated as the "Knickerbocker Spe cial," at the city of Hillsboro, a sufficient length of time to receive and let off passengers with safety.

The petition was based upon section 26 of an act of the General Assembly of Illinois, entitled "An Act in Relation to Fences and Operating Railroads," approved March 21, 1874, which reads as follows:

"Every railroad corporation shall cause its passenger trains to stop upon its (their) arrival at each station advertised by such corporation as a place of receiving and dis charging passengers upon and from such trains, a sufficient length of time to receive and let off such passengers with safety: I'rovided, all regular passenger trains shall stop a sufficient length of time at the railroad stations of county seats to receive and let off passengers with safety."

The answer answer of the railroad company averred that the company furnished four regular passenger trains each way a day, passing through and stopping at Hillsboro, and that they amply accommodated the trav el, and afforded every reasonable facility to such city; that the Knickerbocker Special was a train especially devoted to carrying interstate transportation between the city of St. Louis and the city of New York; that the travel between these cities had grown to such an extent that it had become necessary to put on a through fast train, which connected PEOPLE OF THE STATE OF ILLINOIS with other similar trains on the Lake Shore ex rel. THOMAS M. JETT. and New York Central roads, and that it was necessary to put on this train because Interstate commerce-statute requiring pas- the trains theretofore run, none of which had senger trains to stop at county seat. ever been taken off, could not, by reason of stopping at Hillsboro and other similar staThe requirement that all regular passenger tions, make the time necessary for eastern trains must stop at county seats, which is connections, or carry passengers from St. made by the Illinois act of March 21, 1874, Louis to New York within the time which § 26, constitutes a direct burden upon interstate commerce in violation of the United the demands of business and interstate trafStates Constitution, so far, at least, as that fic required; that the Knickerbocker Special statute requires through interstate passenger is not a regular passenger train for carrying