where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply." This rule applies to condemnation proceedings and to all civil proceedings in the Federal courts, except equity and admiralty cases, although they are not strictly according to the common law. It has been held that this statute does not apply to questions of commercial law, or those which involve the application of principles of the common law which are general throughout the United States, and although settled by the decision of State courts are not regulated by a State statute. In such cases, the Federal courts are not bound by the decisions of the State courts.3 § 375. 1U. S. R. S., § 721. 2 N. Y., N. H. & H. R. Co. v. Cockroft, 49 Fed. R. 3, 4, per Wheeler, J. Swift v. Tyson, 16 Pet. 1; Burgess v. Seligman, 107 U. S. 20, 33, 34, per Bradley, J.: "We do not consider ourselves bound to follow the decision of the State court in this case. When the transactions in controversy occurred, and when the case was under the consideration of the Circuit Court, no construction of the statute had been given by the State tribunals contrary to that given by the Circuit Court. The Federal courts have an independent jurisdiction in the administration of State laws, co-ordinate with, and not subordinate to, that of the State courts, and are bound to exercise their own judgment as to the meaning and effect of those laws. The existence of two co-ordinate jurisdictions in the same territory is peculiar, and the results would be anomalous and inconvenient but for the exercise of mutual respect and deference. Since the ordinary administration of the law is carried on by the State courts, it necessarily happens that by the course of their decisions certain rules are established which become rules of property and action in the State, and have all the effect of law, and which it would be wrong to disturb. This is especially true with regard to the law of real estate and the construction of State Constitutions and statutes. Such established rules are always regarded by the Federal courts, no less than by the State courts themselves, as authoritative declarations of what the law is. But where the law has not been thus settled, it is the right and duty of the Federal courts to exercise their own judgment, as they also always do in reference to the doctrines of commercial law and general jurisprudence. So when contracts and transactions have been entered into, and rights have accrued thereon under a particular state of the decisions, or when there has been no decision of the State tribunals, the Federal courts properly claim the right to adopt their own interpretation of the law applicable to the case, although a different interpretation may be adopted by the State courts after such rights have accrued. But even in such cases, for the sake of harmony and to avoid confusion, the Federal courts will lean towards an agreement of views with the State courts if the question seems to them balanced with doubt. Acting on Such are, in the absence of State statutes upon the subject, questions in the law of insurance, the liability for negligence these principles, founded as they are on comity and good sense, the courts of the United States, without sacrificing their own dignity as independent tribunals, endeavor to avoid, and in most cases do avoid, any unseemly conflict with the well-considered decisions of the State courts. As, however, the very object of giving to the national courts jurisdiction to administer the laws of the States in controversies between citizens of different States was to institute independent tribunals which it might be supposed would be unaffected by local prejudices and sectional views, it would be a dereliction of their duty not to exercise an independent judgment in cases not foreclosed by previous adjudication. As this matter has received our special consideration, we have endeavored thus briefly to state our views with distinctness, in order to obviate any misapprehensions that may arise from language and expressions used in previous decisions. The principal cases bearing upon the subject are referred to in the note, but it is not deemed necessary to discuss them in detail." Citing McKeen v. Delancy's Lessee, 5 Cranch, 22; Polk's Lessee v. Wendal, 9 Cranch, 87; Thatcher v. Powell, 6 Wheat. 119; Preston's Heirs v. Bowmar, 6 Wheat. 580; Daly's Lessee v. James, 8 Wheat. 495; El. mendorf v. Taylor, 10 Wheat. 152; Shelby v. Guy, 11 Wheat. 361; Jack son v. Chew, 12 Wheat. 153-168; Fullerton v. Bank of U. S., 1 Pet. 604; Gardner v. Collins, 2 Pet. 58; U. S. v. Morrison, 4 Pet. 124; Green v. Neal's Lessee, 6 Pet. 291; Groves v. Slaughter, 15 Pet. 449; Swift v. Tyson, 16 Pet. 1; Carpenter v. Providence Washington Ins. Co., 16 Pet. 495; Carroll v. Safford, 3 How. 441; Lane v. Vick, 3 How. 464; Rowan v. Runnels, 5 How. 134; Smith v. Kernochen, 7 How. 198; Nesmith v. Sheldon, 7 How. 812; Williamson v. Berry, 8 How. 495; Van Rensselaer v. Kearney, 11 How. 297; Webster v. Cooper, 14 How. 488; Ohio Life Ins. & Tr. Co. v. Debolt, 16 How. 416; Beauregard v. New Orleans, 18 How. 497; Watson v. Tarpley, 18 How. 517; Pease v. Peck, 18 How. 595; Morgan v. Curtenius, 20 How. 1; League v. Egery, 24 How. 264; Suydam v. Williamson, 24 How. 427; s. c., 6 Wall. 736; Leffingwell v. Warren, 2 Black, 599; Mercer County v. Hucket, 1 Wall. 83; Gelpcke v. City of Dubuque, 1 Wall. 175; Seybert v. Pittsburgh, 1 Wall. 272; Havemeyer v. Iowa County, 3 Wall. 294; Thompson v. Lee County, 3 Wall. 327; Christy v. Pridgeon, 4 Wall. 196; Mitchell v. Burlington, 4 Wall. 270; Lee County v. Rogers, 7 Wall. 181; Butz v. City of Muscatine, 8 Wall. 575; City v. Lamson, 9 Wall. 477; Olcott v. Supervisors, 16 Wall. 678; Supervisors v. U. S., 18 Wall. 71; Boyce v. Tabb, 18 Wall. 546; Pine Grove v. Talcott, 19 Wall. 666; Elmwood v. Marcy, 92 U. S. 289; State Railroad Tax Cases, 92 U. S. 575; Ober v. Gallagher, 93 U. S. 199; Town of South Ottowa v. Perkins, 94 U. S. 260; Davie v. Briggs, 97 U. S. 628; Fairfield v. County of Gallatin, 100 U. S. 47; Oates v. National Bank, 100 U. S. 293; Douglas v. County of Pike, 101 U. S. 677; Barrett v. Holmes, 102 U. S. 651; Thompson v. Perrine, 103 U. S. 806; s. c., 106 U. S. 589. For a full discussion of the subject, see Holt on Concurrent Jurisdiction of the Federal and State Courts, chs. vi and vii. See also § 298. 4 Carpenter v. Providence Washington Ins. Co., 16 Pet. 495; Hening v. U. S. Ins. Co., 2 Dill. 26., 9 by masters and common carriers, negotiable paper, municipal bonds, bills of lading, master and servant," contracts by private corporations," the distribution of assets of insolvents before the bankruptcy law,12 the liability of stockholders to creditors in the absence of any particular local statute," private international law, or the conflict of laws, and the measure of dam 5 Hough v. Railway Co., 100 U. S. 213, 226; Northern Pac. R. Co. v. Peterson (C. C. A.), 51 Fed. R. 182; Gardner v. Mich. C. R. Co., 150 U. S. 349; Baltimore & O. R. Co. v. Baugh, 149 U. S. 368. So as to imputing the contributory negligence of the parent to the child. Berry v. Lake E. & W. R. Co., 70 Fed. R. 679. But as to this see the dicta in Kowalski v. Chicago & G. W. Ry. Co., 84 Fed. R. 586; s. c. (C. C. A.), 92 Fed. R. 310. 6 Myrick v. Michigan Central R. Co., 107 U. S. 102, 109; Railroad Co. v. Lockwood, 17 Wall. 357. So as to the liability of telegraph companies. Western U. Tel. Co. v. Cook (C. C. A.), 61 Fed. R. 624; Western U. Tel. Co. v. Wood (C. C. A.), 57 Fed. R. R. 471. 7 Swift v. Tyson, 16 Pet. 1; Railroad Co. v. National Bank, 102 U. S. 14; Watson v. Tarpley, 18 How. 517; Tilden v. Blair, 21 Wall. 241. 8 Olcott v. Supervisors, 16 Wall. 678; Pine Grove v. Talcott, 19 Wall. 666; Venice v. Murdock, 92 U. S. 494; Com'rs of Johnson County v. Thayer, 94 U. S. 631; Cromwell v. County of Sac, 96 U. S. 51; Fairfield v. Gallatin County, 100 U. S. 47; Douglass v. Pike County, 101 U. S. 677, 686. 9 Myrick v. Michigan Central R. Co., 107 U. S. 102, 109; Railroad Co. v. Lockwood, 17 Wall. 357; Pollard v. Vinton, 105 U. S. 7. See the dissent of Field, J., in Baltimore & O. R. Co. v. Baugh, 149 U. S. 368, 397, 405, 27 Am. Law Reg. 398–402. 10 Hough v. Railway Co., 100 U. S. 213, 226; Coyne v. Union Pac. R. Co., 132 U. S. 370; Quebec S. S. Co. v. Merchant, 123 U. S. 375; Newport 14 News & M. V. Co. v. Howe, 52 Fed. R. 362, 366; s. C., 3 C. C. A. 121. But see Kerlin v. Chicago & St. L. R. Co., 50 Fed. R. 185. 11 Railroad Co. v. Lockwood, 17 Wall. 357; Hening v. U. S. Ins. Co., 2 Dill. 26; Myrick v. Michigan Cent. R. Co., 107 U. S. 102, 109. 12 London & S. F. Ry. Co. v. Williamette S. M. L. & M. Co., 80 Fed. R. 226. 13 Burgess v. Seligman, 107 U. S. 20, 106; Clark v. Bever, 139 U. S. 96, 116. But see Allen v. Fairbanks, 45 Fed. R. 445, 447; Flash v. Conn, 109 U. S. 371. But see Sioux City T. R. R. & W. Co. v. Trust Co. of N. A., 173 U. S. 99. 14 As to the effect to be given to a statute of another State, Greaves v. Neal, 57 Fed. R. 816, 817; Dygert v. Vt. L. & Tr. Co. (C. C. A.), 94 Fed. R. 913; or of a foreign country, Evey v. Mex. Cent. Ry. Co. (C. C. A.), 81 Fed. R. 294. The right of a mortgagee to recover the mortgage debt from a purchaser who had agreed with the mortgagor to pay it, although the deed and mortgage were executed in and covered property solely in New York, where the mortgagee might have sued in a common-law action of assumpsit, was held, when the suit was brought in the District of Columbia, to depend upon the lex fori, and consequently to be maintainable only in a court of equity. Willard v. Wood, 135 U. S. 309. See also North Alabama Development Co. v. Orman, 55 Fed. R. 18; supra, §7. ages.15 Thus, irrespective of the decisions of the courts of the States where they are held, the Federal courts hold: that in suits for damages by negligence the contributory negligence of the plaintiff is a defense, the burden of proving which rests upon the defendant, and that the plaintiff is not bound as a part of his case to disprove the same; 16 that a common carrier cannot by contract relieve himself from liability for negligence; that a person who has received negotiable paper in payment of a pre-existing indebtedness is a holder for value; 18 that a purchaser of negotiable paper before maturity in good faith and for value may recover the face of the same, and not merely his purchase price; 19 and that parol evidence of an oral agreement made at the time of the drawing, making, or indorsing of a bill or note cannot be permitted to vary, qualify, or contradict the terms of the written contract.20 "There is no body of Federal common law separate and distinct from the common law existing in the several States in the sense that there is a body of statute law enacted by Congress separate and distinct from the body of statute law enacted by the several States. But it is an entirely different thing to hold that there is no common law in force generally throughout the United States, and that the countless multitude of interstate commercial transactions are subject to no rules and burdened by no restrictions other than those expressed in the statutes of Congress." It was accordingly held that a telegraph company was liable in damages, independent of any statute, for unjust discriminations in its charges for interstate commerce.21 15 Lake S. & M. S. Ry. Co. v. Pren- U. S. 51, 60; Wade v. Chicago, S. & tice, 147 U. S. 101. St. L. R. Co., 149 U. S. 327, 343. 16 Railroad Co. v. Gladmon, 15 Wall. 401; Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291; Northern Pac. R. Co. v. Mares, 123 U. S. 710. 17 Railroad Co. v. Lockwood, 17 Wall. 357; Bank of Ky. v. Adams Exp. Co., 93 U. S. 174. But see Balt. & O. S. W. Ry. Co. v. Voight, 176 U. S. 498. 18 Swift v. Tyson, 16 Pet. 1; Railroad Co. v. National Bank, 102 U. S. 14. 19 Cromwell v. County of Sac, 96 20 Van Vleet v. Sledge, 45 Fed. R. 743, 749; Specht v. Howard, 16 Wall. 564; Forsythe v. Kimball, 91 U. S. 291; White v. National Bank, 102 U. S. 658, 661; Martin v. Cole, 104 U. S. 30. 21 Western U. Tel. Co. v. Call Pub. Co., 181 U. S. 92, per Brewer, J. See also Murray v. Chicago & N. W. Ry. Co., 62 Fed. R. 24; Du Ponceau upon Jurisdiction. Contra, Swift v. Phila. & R. R. Co., 58 Fed. R. 858. "Questions of public policy, as affecting the liability for acts done, or upon contracts made and to be performed within one of the States of the Union-when not controlled by the Constitution, laws or treaties of the United States, or by the principles of the commercial or mercantile law, or of general jurisprudence of national or universal application—are governed by the law of the State, as expressed in its own constitution and statutes, or declared by its highest court." 22 24 Where the decisions of the courts of a State have established a local rule of property, they will usually be followed by the Federal courts held within such State.23 The statute law of a State will always be followed by a Federal court there held, so far as the statutes establish a local rule of property; " and nearly always, so far as they create or abolish rights as distinct from remedies.25 The construction of a statute by the courts of the State which enacted it will be followed by the Federal courts provided such construction is clear, and was made before the facts occurred out of which the question for adjudication arose; and if, pending a writ of error or appeal, the 22 Hartford F. Ins. Co. v. Chicago, M. & St. P. Ry. Co., 175 U. S. 91, 100, per Gray, J., holding that the valid ity of an agreement that the lessor, a railway company, should not be responsible to the lessee for damage by fire due to the lessor's negligence, should be determined in accordance with the decisions of the courts of the State. The State decisions as to the validity of a stipulation in a mortgage for an attorney's fee are followed by the Federal courts. Bendey v. Townsend, 109 U. S. 665; Dodge v. Tulleys, 144 U. S. 451; Gray v. Havemeyer (C. C. A.), 53 Fed. R. 174. 23 Neves v. Scott, 13 How. 268, 271; Gaines v. Fuentes, 92 U. S. 10, 20; Ellis v. Davis, 109 U. S. 485; Lorman v. Clarke, 2 McLean, 568; McClaskey v. Barr, 42 Fed. R. 609, 617. See Bucher v. Cheshire R. Co., 125 U. S. 555; Nichols v. Eaton, 91 U. S. 716, 729. 24 D'Wolf v. Rabaud, 1 Pet. 476; Clark v. Smith, 13 Pet. 195; Fitch v. Creighton, 24 How. 159; Brine v. Insurance Co., 96 U. S. 627; Mills v. Scott, 99 U. S. 25; Van Norden v. Morton, 99 U. S. 378; Cummings v. National Bank, 101 U. S. 153, 157; Holland v. Challen, 110 U. S. 15; Reynolds v. Crawfordsville First Nat. Bank, 112 U. S. 405. 25 Bucher v. Cheshire R. Co., 125 U. S. 555. But see Watson v. Tarpley, 18 How. 517; supra, §§ 6, 7. 26 Bell v. Morrison, 1 Pet. 351; D'Wolf v. Rabaud, 1 Pet. 476; Van Rensselaer v. Kearney, 11 How. 297; Tioga R. Co. v. Blossburg & C. R. Co., 20 Wall. 137; Townsend v. Todd, 91 U. S. 452; U. S. v. Fox, 94 U. S. 315; Scipio v. Wright, 101 U. S. 665; Burgess v. Seligman, 107 U. S. 20, 34; Bucher v. Cheshire R. Co., 125 U. S. 555; Bacon v. N. W. Mut. L. Ins. Co., 131 U. S. 258; Hawkins v. Glenn, 131 U. S. 319, 331; Barnum v. Okolona, 148 U. S. 393, 397; Adams Exp. Co. v. Ohio State Auditor, 165 U. S. 194. So held of the decisions of a special com |