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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.

$ 375. 1 U. S. R. S., & 721.

and have all the effect of law, and 2 N. Y., N. H. & H. R. Co. v. Cock- which it would be wrong to disturb. roft, 49 Fed. R. 3, 4, per Wheeler, J. This is especially true with regard to

Swift v. Tyson, 16 Pet. 1; Burgess the law of real estate and the conv. Seligman, 107 U. 8. 20, 33, 34, per struction of State Constitutions and Bradley, J.:

statutes. Such established rules are "We do not consider ourselves always regarded by the Federal bound to follow the decision of the courts, no less than by the State State court in this case. When the courts themselves, as authoritative transactions in controversy occurred, declarations of what the law is. But and when the case was under the where the law has not been thus setconsideration of the Circuit Court, tled, it is the right and duty of the no construction of the statute had Federal courts to exercise their own been given by the State tribunals judgment, as they also always do in contrary to that given by the Circuit reference to the doctrines of comCourt. The Federal courts have an mercial law and general jurispruindependent jurisdiction in the ad- dence. So when contracts and transministration of State laws, co-ordi. actions have been entered into, and nate with, and not subordinate to, rights have accrued thereon under a that of the State courts, and are particular state of the decisions, or bound to exercise their own judg- when there has been no decision of ment as to the meaning and effect the State tribunals, the Federal of those laws. The existence of two courts properly claim the right to coordinate jurisdictions in the same adopt their own interpretation of the territory is peculiar, and the results law applicable to the case, although would be anomalous and inconven- a different interpretation may be ient but for the exercise of mutual adopted by the State courts after respect and deference. Since the or- such rights have accrued. But even dinary administration of the law is in such cases, for the sake of harcarried on by the State courts, it nec- mony and to avoid confusion, the essarily happens that by the course Federal courts will lean towards an of their decisions certain rules are agreement of views with the State established which become rules of courts if the question seems to them property and action in the State, 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 134; Smith v. Kernochen, 7 How. on comity and good sense, the courts 198; Nesmith v. Sheldon, 7 How. 812; of the United States, without sacri- Williamson v. Berry, 8 How. 495; ficing their own dignity as independ- Van Rensselaer v. Kearney, 11 How. ent tribunals, endeavor to avoid, and 297; Webster v. Cooper, 14 How. in most cases do avoid, any unseemly 488; Ohio Life Ins. & Tr. Co. v. Deconflict with the well-considered de- bolt, 16 How. 416; Beauregard v. New cisions of the State courts. As, how- Orleans, 18 How. 497; Watson v. Tarpever, the very object of giving to the ley, 18 How. 517; Pease v. Peck, 18 national courts jurisdiction to ad- How. 595; Morgan v. Curtenius, 20 minister the laws of the States in How. 1; League v. Egery, 24 How. controversies between citizens of dif- 264; Suydam v. Williamson, 24 How. ferent States was to institute inde- 427; S. C., 6 Wall. 736; Leffingwell v. pendent tribunals which it might be Warren, 2 Black, 599; Mercer County supposed would be unaffected by v. Hucket, 1 Wall. 83; Gelpcke v. local prejudices and sectional views, City of Dubuque, 1 Wall. 175; Sey. it would be a dereliction of their bert v. Pittsburgh, 1 Wall. 272; Haveduty not to exercise an independent meyer v. Iowa County, 3 Wall. 294; judgment in cases not foreclosed by Thompson v. Lee County, 3 Wall. previous adjudication. As this mat- 327; Christy v. Pridgeon, 4 Wall. ter has received our special consid. 196; Mitchell v. Burlington, 4 Wall. eration, we have endeavored thus 270; Lee County v. Rogers, 7 Wall. briefly to state our views with dis- 181; Butz v. City of Muscatine, 8 tinctness, in order to obviate any Wall. 575; City v. Lamson, 9 Wall. misapprehensions that may arise 477; Olcott v. Supervisors, 16 Wall. from language and expressions used 678; Supervisors v. U. S., 18 Wall. 71; in previous decisions. The principal Boyce v. Tabb, 18 Wall. 546; Pine cases bearing upon the subject are Grove v. Talcott, 19 Wall. 666; Elmreferred to in the note, but it is not wood v. Marcy, 92 U. S. 289; State deemed necessary to discuss them in Railroad Tax Cases, 92 U. S. 575; detail.” Citing McKeen v. Delancy's Ober v. Gallagher, 93 U. S. 199; Town Lessee, 5 Cranch, 22; Polk's Lessee v. of South Ottowa v. Perkins, 94 U. S. Wendal, 9 Cranch, 87; Thatcher v. 260; Davie v. Briggs, 97 U. S. 628; Powell, 6 Wheat. 119; Preston's Heirs Fairfield v. County of Gallatin, 100 v. Bowmar, 6 Wheat. 580; Daly's U. S. 47; Oates v. National Bank, 100 Lessee v. James, 8 Wheat. 495; El. U. S. 293; Douglas v. County of Pike, mendorf v. Taylor, 10 Wheat. 152; 101 U. S. 677; Barrett v. Holmes, 102 Shelby v. Guy, 11 Wheat. 361; Jack- U. S. 651; Thompson v. Perrine, 103 son v. Chew, 12 Wheat. 153–168; Ful. U. S. 806; s. C., 106 U. S. 589. lerton v. Bank of U. S., 1 Pet. 604; For a full discussion of the sub Gardner v. Collins, 2 Pet. 58; U.S. v. ject, see Holt on Concurrent JurisMorrison, 4 Pet. 124; Green v. Neal's diction of the Federal and State Lessee, 6 Pet. 291; Groves v. Slaughter, Courts, chs. vi and vii. See also 15 Pet. 449; Swift v. Tyson, 16 Pet. 1; S 298. Carpenter v. Providence Washington 4 Carpenter v. Providence WashIns. Co., 16 Pet. 495; Carroll v. Saf- ington Ins. Co., 16 Pet. 495; Hening ford, 3 How. 441; Lane v. Vick, 3 v. U. S. Ins. Co., 2 Dill. 26., How. 464; Rowan v. Runnels, 5 How.

by masters and common carriers, negotiable paper, municipal bonds, bills of lading,' master and servant,lo 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,13 private international law, or the conflict of laws,14 and the measure of dam

5 Hough v. Railway Co., 100 U. S. News & M. V. Co. v. Howe, 52 Fed. 213, 226; Northern Pac. R. Co. v. R. 362, 366; S. C., 3 C. C. A. 121. But Peterson (C. C. A.), 51 Fed. R. 182; see Kerlin v. Chicago & St. L R. Co., Gardner v. Mich. C. R. Co., 150 U. S. 50 Fed. R. 185. 349; Baltimore & O. R. Co. v. Baugh, 11 Railroad Co. v. Lockwood, 17 149 U. S. 368. So as to imputing the Wall. 357; Hening v. U. S. Ins. Co., contributory negligence of the parent 2 Dill. 26; Myrick v. Michigan Cent. to the child. Berry v. Lake E. & W. R. Co., 107 U. S. 102, 109. R. Co., 70 Fed. R. 679. But as to this 12 London & S. F. Ry. Co. v. Will. see the dicta in Kowalski v. Chicago iamette S. M. L. & M. Co., 80 Fed. R. & G. W. Ry. Co., 84 Fed. R. 586; & C. 226. (C. C. A.), 92 Fed. R. 310.

13 Burgess v. Seligman, 107 U. S. 6 Myrick v. Michigan Central R. 20, 106; Clark v. Bever, 139 U. S. 96, Co., 107 U. S. 102, 109; Railroad Co. 116. But see Allen v. Fairbanks, 45 v. Lockwood, 17 Wall. 357. So as to Fed. R. 445, 447; Flash v. Conn, 109 the liability of telegraph companies. U. S. 371. But see Sioux City T. R. Western U. Tel. Co. v. Cook (C. C. A.), R. & W. Co. v. Trust Co. of N. A., 61 Fed. R. 624; Western U. Tel. Co. v. 173 U. S. 99. Wood (C. C. A.), 57 Fed. R. R. 471. 14 As to the effect to be given

7 Swift v. Tyson, 16 Pet. 1; Rail. to a statute of another State, road Co. v. National Bank, 102 U. S. Greaves v. Neal, 57 Fed. R. 816, 817; 14; Watson v. Tarpley, 18 How. 517; Dygert v. Vt. L & Tr. Co. (C. C. A.), Tilden v. Blair, 21 Wall. 241.

94 Fed. R. 913; or of a foreign coun8 Olcott v. Supervisors. 16 Wall. 678; try, Evey v. Mex. Cent. Ry. Co. (C. C. Pine Grove v. Talcott, 19 Wall. 666; A.), 81 Fed. R. 294. The right of a Venice v. Murdock, 92 U. S. 494; mortgagee to recover the mortgage Com'rs of Johnson County v. Thayer, debt from a purchaser who had 94 U. S. 631; Cromwell v. County of agreed with the mortgagor to pay it, Sac, 96 U. S. 51; Fairfield v. Gallatin although the deed and mortgage County, 100 U. S. 47; Douglass v. were executed in and covered propPike County, 101 U. S. 677, 686. erty solely in New York, where the

9 Myrick v. Michigan Central R. mortgagee might have sued in a Co., 107 U. S. 102, 109; Railroad Co. common-law action of assumpsit, V. Lockwood, 17 Wall. 357; Pollard was held, when the suit was brought v. Vinton, 105 U. S. 7. See the dis- in the District of Columbia, to desent of Field, J., in Baltimore & O. pend upon the lex fori, and conseR. Co. v. Baugh, 149 U. S. 368, 397, quently to be maintainable only in 405, 27 Am. Law Reg. 398-402. a court of equity. Willard v. Wood,

10 Hough v. Railway Co., 100 U. S. 135 U. S. 309. See also North Ala213, 226; Coyne v. Union Pac. R. Co., bama Development Co. v. Orman, 55 132 U. S. 370; Quebec S. S. Co. v. Fed. R. 18; supra, $ 7. Merchant, 123 U. S. 375; Newport

ages.1 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; 17 that a person who bas 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. 20 Van Vleet v. Sledge, 45 Fed. R. 401; Indianapolis & St. L. R. Co. v. 743, 749; Specht v. Howard, 16 Wall. Horst, 93 U. S. 291; Northern Pac. R. 564; Forsythe v. Kimball, 91 U. S. Co. v. Mares, 123 U. S. 710.

291; White v. National Bank, 102 17 Railroad Co. v. Lockwood, 17 U. S. 658, 661; Martin v. Cole, 104 Wall. 357; Bank of Ky. V. Adams U. S. 30. Exp. Co., 93 U. S. 174. But see Balt. 21 Western U. Tel. Co. v. Call Pub. & O. S. W. Ry. Co. v. Voight, 176 Co., 181 U. S. 92, per Brewer, J. See U. S. 498.

also Murray v. Chicago & N. W. Ry. 18 Swift v. Tyson, 16 Pet. 1; Rail. Co., 62 Fed. R. 24; Du Ponceau upon road Co. v. National Bank, 102 U. S. Jurisdiction. Contra, Swift v. Phila 14.

& R. R. Co., 58 Fed. R. 858. 19 Cromwell v. County of Sac, 96

“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

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; 24 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; 28 and if, pending a writ of error or appeal, the

2 Hartford F. Ins. Co. v. Chicago, Creighton, 24 How. 159; Brine v. InM. & St. P. Ry. Co., 175 U. S. 91, 100, surance Co., 96 U. S. 627; Mills v. per Gray, J., holding that the valid. Scott, 99 U. S. 25; Van Norden v. Mority of an agreement that the lessor, ton, 99 U. S. 378; Cummings v. Naa railway company, should not be tional Bank, 101 U. S. 153, 157; Holresponsible to the lessee for damage land v. Challen, 110 U. S. 15; Reyby fire due to the lessor's negligence, nolds v. Crawfordsville First Nat. should be determined in accordance Bank, 112 U. S. 405. with the decisions of the courts of 26 Bucher v. Cheshire R. Co., 125 the State. The State decisions as to U. S. 555. But see Watson v. Tarpley, the validity of a stipulation in a 18 How. 517; supra, SS 6, 7. mortgage for an attorney's fee are 26 Bell v. Morrison, 1 Pet. 351; followed by the Federal courts. Ben. D'Wolf v. Rabaud, 1 Pet. 476; Van dey V. Townsend, 109 U. S. 665; Rensselaer v. Kearney, 11 How. 297; Dodge v. Tulleys, 144 U. S. 451; Gray Tioga R. Co. v. Blossburg & C. R. Co., v. Havemeyer (C. C. A.), 53 Fed. R. 20 Wall. 137; Townsend v. Todd, 91 174.

U. S. 452; U. S. v. Fox, 94 U, S. 315; 23 Neves v. Scott, 13 How. 268, 271; Scipio v. Wright, 101 U. 8. 665; BurGaines v. Fuentes, 92 U. 8. 10, 20; gess v. Seligman, 107 U. S. 20, 34; Ellis v. Davis, 109 U. S. 485; Lorman Bucher v. Cheshire R. Co., 125 U. S. v. Clarke, 2 McLean, 568; McClaskey 555; Bacon v. N. W. Mut. L. Ins. Co., v. Barr, 42 Fed. R. 609, 617. See Bu- 131 U. S. 258; Hawkins v. Glenn, 131 cher v. Cheshire R. Co., 125 U. S. 555; U. S. 319, 331; Barnum v. Okolona, Nichols v. Eaton, 91 U. S. 716, 729. 148 U. S. 393, 397; Adams Exp. Co. v.

24 D’Wolf v. Rabaud, 1 Pet. 476; Ohio State Auditor, 165 U. S. 194. So Clark v. Smith, 13 Pet. 195; Fitch v. held of the decisions of a special com

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