amended libel, except as to damages, are true; and it is further agreed that the damages amount to $870. The libelant represents the cwners of the schooner Henry S. Culver. The vessel arrived in Boston, January 20, 1887, with a cargo of coal, from Baltimore, to be delivered at the Old Colony wharf, which is situated above the Dover-Street bridge. In proceeding in tow through the bridge the vessel was caught, and stuck in the draw, and was thereby damaged to the amount agreed upon. The schooner's beam was 35 feet. The libelant contends that the city was required by law to maintain a draw 36 feet in the clear, and it is admitted that at this time the draw was not of this required width. The structure was originally known as the "Boston South Bridge," and it was erected by proprietors in 1803. Acts Mass. 1803, c. 113. By the act of incorporation it was provided that "there also shall be made a good and sufficient draw or passage-way, at least thirty feet wide in the channel over which said bridge shall be built, proper for the passing and repassing of vessels." The bridge was maintained as a private property until 1831, when the legislature passed an act authorizing the sale of the franchise and materials to the city of Boston. Acts Mass. 1831, c. 71. One of the provisos in the act was that the "city shall always be held liable to keep said bridge and draw in good repair, and to raise the draw of said bridge, and afford all necessary and proper accommodation to vessels that have occasion to pass the same by night or by day." On April 19, 1832, the city took a deed of the franchise and materials of the bridge for $3,500, under the terms and provisions set forth in the act of the legislature. In 1876, the legislature authorized the city to widen the bridge not exceeding 60 feet, and to construct fenders, guards, and to change the locality of the draw, and to do such other acts as it might deem necessary and convenient to secure a bridge and draw which should safely and conveniently accommodate public travel and navigation, subject however, to the provisions of chapter 432 of the Acts of 1869. Acts Mass. 1876, c. 105. By this act of 1869 the rights of the commonwealth in tide-waters were made subject to the determination and approval of harbor commissioners. Acts Mass. 1869, c. 432. The board of harbor commissioners was created in 1866. By section 4 of the act the approval of the commissioners was required in all work authorized by the legislature of building any bridge, wharf, pier, or draw over tidewaters; and, further, that the work should not be commenced until the plan and mode of performing it should be approved by the commissioners, and that they should have the power to alter plans at their discretion, and to prescribe the direction, limit, and mode of building wharves and other structures to any extent that does not control the legislative grant, and that all such works should be executed under their supervision. Acting under this authority the commissioners, upon an application by the city, granted a license June 21, 1876, which provided that the bridge should be widened to a uniform width of 60 feet; that a new passage-way for vessels should be made nearer the middle of the channel, which should be 36 feet wide in the clear, and at right angles to the center line of the bridge. Acts Mass. 1866, c. 149. The city having

accepted this franchise, with the responsibilities incident thereto, it seems to me that it was manifestly their legal duty to maintain a draw 36 feet wide in the clear.

The position taken by the city, that there was no public duty imposed upon it to maintain a draw 36 feet wide, I think, from a review of the legislation on this subject, is clearly unsound. The city having acquired this franchise, it would be a strange construction to hold that, having built the draw of the requisite width, it was under no duty to maintain it of such width. I cannot assent to such a proposition. The city assumed to do all that the law imposed, and the proper and reasonable interpretation of the law required not only that the draw should be 36 feet, but that it should be maintained at that width.

Another position taken by the city is that the libel does not set forth a maritime tort, and one that is within the jurisdiction of a court of admiralty. This position cannot be maintained in this court. It is settled in the federal courts that a court of admiralty has jurisdiction over damage done to a vessel on navigable water by a bridge or permanent structure. The test is the locality of the thing injured, and not the thing inflicting the injury. Railroad Co. v. Tow-Boat Co., 23 How. 209; The Hine, 4 Wall. 555; The Rock Island Bridge, 6 Wall. 213; The Plymouth, 3 Wall. 20; Atlee v. Packet Co., 21 Wall. 389. Nor can I agree to the proposition that in the federal courts the only remedy for wrongs of this character against quasi corporations such as cities, unless a right of action is conferred by statute, is by indictment. The contrary of this has long been established. Weightman v. Washington, 1 Black, 39; Chicago v. Robbins, 2 Black, 418; Nebraska City v. Campbell, Id. 590; Barnes v. District of Columbia, 91 U. S. 540; Evanston v. Gunn, 99 U. S. 660. The question before us is not one of the construction of a state statute, where the federal courts are bound to follow the decision of the highest courts of the state, but it is a question of general municipal or commercial law, and as such this court should follow the decisions of the supreme court of the United States. Oates v. Bank, 100 U. S. 239; Watson v. Tarpley, 18 How. 517; Swift v. Tyson, 16 Pet. 1. Upon consideration I am satisfied that the city of Boston is liable in this form of action, and therefore that the decree of the district court should be affirmed.

TOWN OF LANSING v. LYTLE.

(Circuit Court, N. D. New York. March 18, 1889.)

1. RAILROAD COMPANIES-MUNICIPAL AID-BONDS-ACTION TO COMPEL CANCELLATION.

A county judge, assuming to act under act N. Y. May 18, 1869, permitting municipal corporations to aid in the construction of railroads, rendered a judgment appointing commissioners to execute bonds of a town. The bonds were accordingly executed and delivered to the railroad company, but before delivery a writ of certiorari issued from the supreme court to review

the judgment, which was afterwards reversed. In an action against a transferee of the bonds to compel their surrender for cancellation, held, that defendant had the burden of showing that he, or some one under whom he claimed, was a bona fide holder for value.

2. SAME-BONA FIDE HOLDER-EVIDENCE.

A Texas banker, from whom defendant obtained the bonds, testified that he was informed by a resident of New York that the bonds, which were of the par value of $75,000, could be bought for $50,000, and that he bought them of a stranger to him, residing in New Orleans, for $50,000, without making any inquiry as to their history or value, acting upon the assumption that the purchase was a good one because suggested by such informant; that he got with them $10,000 in overdue coupons, but that that circumstance made no impression on him; that he paid for the bonds with a check signed by him as president of his bank, which check was produced from the drawee bank, at New Orleans, and was not shown to have been paid by the Texas bank; that he left the bonds at the place of purchase for several months, when he took them to New York, where he interviewed his informant, because he did not know whether he made the purchase for himself or for such informant, and afterwards sued on the coupons. Held, that his testimony did not show him to be a bona fide purchaser for value.

3. SAME.

Defendant testified that the banker, who was a confidential friend and financial supporter, offered to buy a third interest in his ranch, worth $150,000, and pay him $75,000 worth of bonds, stating that the bonds were good; that defendant accepted the offer at once, making no inquiry as to the bonds, and 15 days later signed a receipt for the bonds, which were not delivered, but were placed to his credit, or held subject to his order, and which were not seen by him until two days afterwards. He sent the coupons for collection to the same attorneys whom the banker had employed. The testimony of the banker was substantially the same. The receipt described the bonds as county bonds, and stated that they were taken in part payment for a third interest in ranch and stock. No conveyance was executed, but several months afterwards defendant and his co-owner and the banker formed a corporation, to which the ranch was conveyed. The capital stock was $500,000, divided into 1,000 shares, of which the banker received 290. The 290 shares were the equivalent of the banker's interest in the assets of the firm composed of defendant and his co-owner. Held, that defendant was not shown to be a bona fide holder for value.

WALLACE, J. This action is brought to compel the defendant to surrender up 75 $1,000 municipal bonds, with annexed interest coupons, together with certain past-due coupons for $18,375 unpaid interest for cancellation, and to restrain the defendant from bringing suits at law upon them, and from transferring them. The defendant has filed a cross-bill, praying for a decree against the town of Lansing for the amount of the past-due coupons, with interest from the date of their maturity. The bonds purport to have been issued by the town of Lansing under the authority of the statute of the state of New York passed May 18, 1869, to permit municipal corporations to aid in the construction of railroads. The county judge of Tompkins county, in which county the town is situated, assuming to act under the authority of that statute, rendered a judgment March 21, 1871, appointing commissioners to execute bonds of the town to the amount of $75,000, and invest them in the capital stock of the Cayuga Lake Railroad Company. October

14, 1871, the commissioners executed the bonds in suit, and delivered them to the railway company in exchange for capital stock. The bonds are payable to bearer on the 1st day of January, 1902, with interest at the rate of 7 per cent., payable semi-annually upon the presentation of the coupons annexed. Before the commissioners delivered the bonds to the railway company a writ of certiorari was issued from the supreme court of the state, directed to the county judge, for a review of this judgment, and such proceedings were thereafter duly had pursuant to such writ that in May, 1872, the supreme court of the state reversed and in all things set aside the judgment of the county judge appointing the commissioners, and authorizing the creation of the bonds. At the time the commissioners issued and delivered the bonds to the railway company they, and the railway company also, had full notice of the issuing of the writ of certiorari; and the commissioners took from the company a bond of indemnity to save themselves harmless from all liability in consequence of their acts. The bonds, as soon as delivered, were pledged by the company with bankers in New York as collateral security for a loan of $50,000, and in November, 1872, these bankers transferred them to Elliott, Collins & Co., bankers of Philadelphia, pursuant to an arrangement between the latter and the railway company by which they paid up the loan of the company to the New York bankers, and took the bonds for security, and for sale as agents of the railway company. In February, 1873, Elliott, Collins & Co., sold the bonds for the railway company for $54,337, acting under the instructions of the company; and the proceeds were applied to pay the loan of the company, and the balance was placed to its credit, and drawn out by it from time to time. It does not appear who purchased the bonds of Elliott, Collins & Co., but it does appear that at a later period one Stewart claimed to be the owner of them, and brought a suit upon some of the coupons against the town. That suit was tried in this court in June, 1877, and a verdict was rendered for the town, and a judgment entered dismissing the suit upon the merits. Subsequently the bonds were in the possession of Stewart at the city of New Orleans, and in 1881 he transferred them to one Brackenridge, together with coupons representing $10,000 or $12,000 of unpaid interest. Brackenridge claims to have paid Stewart $50,000 for the bonds and coupons. He brought two suits upon the coupons in this court-one founded on 900 coupons, which matured from July 1, 1876, to January 1, 1882, inclusively; and the other founded on 300 coupons, which matured from July 1, 1882, to January 1, 1884, inclusively. There is no evidence in the record of the result of these suits brought by Brackenridge, but it may be inferred from the circumstances attending the subsequent sale of the bonds by him to Lytle that those suits were prosecuted unsuccessfully, or were abandoned. Lytle, the present defendant, bought the bonds of Brackenridge at San Antonio, Tex., in the spring of 1884, and claims to have taken them in exchange for a one-third interest in a cattle ranch on the Frio river, in which he owned a half interest jointly with one McDaniels.

The controversy turns upon the question whether Lytle or any one

of the previous holders of the bonds and coupons acquired the title of a bona fide purchaser to them. It was held by the supreme court in the suit of Stewart against the town that as between the railroad company and the town the bonds were invalid; and that the judgment of the supreme court of the state reversing the judgment or order of the county judge authorizing the commissioners to execute the bonds was equivalent to a refusal by the county judge to make the original order. Stewart v. Lansing, 104 U. S. 505. It was also held in that case that the actual illegality of the bonds was established by the judgment of reversal, and it was therefore incumbent upon the person claiming title to them to show that he occupied the position of a bona fide holder before he could prevail against the town. Conformably with the rule applied in that case, the burden of proof is therefore upon the present defendant, and it is only necessary to consider whether the evidence in his behalf meets the requirements of the rule, and shows satisfactorily that he is, or that Stewart or Brackenridge was, a bona fide holder of the bonds and coupons. Elliott, Collins & Co. did not sell the bonds to satisfy their claim as pledgees, but sold them as agents for the railway company; consequently it is unnecessary to consider whether the defendant can rely upon their title as bona fide holders under the pledge. That title never passed to the purchaser, and the purchaser only succeeded to the rights of the railway company; and the railway company, by paying the loan, did not acquire the rights of the pledgees, but merely reinvested itself with its original rights in the bonds. If Stewart or Brackenridge was a bona fide holder of the bonds and coupons, it is immaterial whether, when the defendant took them, he did or did not acquire them mala fides, because he can stand upon the title of his predecessor, and such title inures to him. Commissioners v. Bolles, 94 U. S. 104; Montclair v. Ramsdell, 107 U. S. 147, 2 Sup. Ct. Rep. 391. The purchaser of negotiable paper with knowledge of its infirmities as between the original parties can recover its full amount, and is not limited to a recovery of what he may have paid or advanced for the paper before acquiring notice if he has purchased of one who bought it before maturity, for value, and without notice of any infirmity or defense. Butterfield v. Town of Ontario, 32 Fed. Rep. 891. It is not necessary for one who seeks to avail himself of the title of a prior holder of negotiable paper to show affirmatively that the previous holder took the paper without notice of the facts affecting its validity; but, when illegality in the inception of the paper is shown, the burden is cast upon him to prove that the previous holder parted with value when he acquired the paper. Smith v. Sac Co., 11 Wall. 139.

The first inquiry is whether Stewart was a bona fide holder of the bonds and coupons. Upon this issue the facts of the case differ but slightly from those which were considered by the supreme court in the suit of Stewart against the town, and which were held to be insufficient to invest him with such a title. It is now shown that there was such a person in existence, that he had the bonds in his possession, that he transferred them to Brackenridge, and that he received a check of $50,000