73 2
THE GREEN BAG
as such. This usually creates a presumption of marriage. This, making out a prima facie case, would overthrow the first presumption were it not for an additional rule that the presumption in favor of the second marriage can only be over thrown by clear evidence of the first marriage, and that " habit and repute " will not suffice. This seems to be settled in the Maryland cases and perhaps elsewhere. But suppose there is clear evi dence, of the first marriage. Plainly then the party relying on the second marriage must come for ward with evidence to overthrow it. Who then has the ultimate burden of establishing? Prob ably the one asserting the second marriage, since a presumption does not shift the burden of estab lishing. Vincent v. Association, 58 At. Rep. (Conn.) 963. But courts -have said that the one asserting the first marriage has the " burden of proof." Taylor v. Taylor, i Lee 571; Patterson v. Gaines, 6 How. 550, 596; Rooney v. Rooney, 54 N. J. Eq. 231, 245. This tells us nothing since we do not know in what sense they were using " bur den of proof." Wigmore, Evidence, §§2485. 2487. It will be noticed that according to the above dis cussion the presumptions do not conflict but come into operation successively. Wigmore, Evidence, §2493. Clarke B. Whittier. FEDERAL COURTS. (Removal of Causes — Diverse Citizenship — Residence.) U. S. C. C. Nev. — A decision involving the question of federal jurisdiction on the ground of diverse citizenship and adding a holding to the number which must now be regarded as stating the most generally accepted doctrine, is to be found in Burch v. Southern Pacific Co., 139 Fed. Rep. 350. This case holds that since Act Aug. i3th 1888, c. 86<j, § i (U. S. Comp. St. 1901, p. 508), providing that when jurisdiction is founded on diverse citizenship suit .shall be brought only in the district of the residence of plaintiff or defend ant, confers a mere privilege on the defendant which may be waived, federal circuit courts have jurisdiction over controversies wholly be tween citizens of different states though neither plaintiff nor defendant is a resident of the district in which the court to which the action was removed is sitting. There are authorities to the contrary, notably: Foulk v. Gray, 120 Fed. 156, and Gebbie & Co. v. Review of Reviews Co., 134 Fed. 150. These are referred to by the court but are appar ently considered not authoritative because in conflict with a considerable number of other cases adhering to the contrary doctrine. Among the latter, the court cites and quotes'from Wilson v. Western Union Telegraph Co., .34 Fed. 561, Kansas City & T. R. Co. r. Interstate Lumber
Co., 37* Fed. 3, Sherwood v. Newport News & M. B. Co., ss Fed. i, Whitworth v. Railroad Co., 107 Fed. 557, Virginia-Carolina Chemical Co. v. Sundry Insurance Companies, 108 Fed. 451, and Memphis Savings Bank v. Houchans, 115 Fed. 96 52 C. C. A. 176. INNKEEPERS. (Guests — Permanent Lodgers.) li. Y. S. C. — A case which manifests a tendency to at least not extend the liability of innkeepers for the property of their guests is that of Crapo v. Rockwell, 94 New York Supplement. 1122. Plaintiff had lived for seventeen months in defend ant's inn which accommodated both transient and permanent lodgers and had moved property into her rooms, which indicated an intention to make more than a temporary sojourn, and in addition had made the arrangements for her stay with the proprietors themselves, instead ot the clerk. When she first went to the inn she contemplated housekeeping and never made any agreement for lodging for a definite time, and had frequently changed her apartments during her stay. While adhering to the rule, of course, that a hotel is an insurer of the property of its guests and liable for its loss from any cause whatever except from the neglect of the guest or the act of God, or the public enemy, the court, going back to the first principles, decides that an "inn" is a house for the entertainment of travelers, and that the relation of innkeeper and guest applies only to travelers. This, of course, necessarily gives rise to the holding that as plaintiff was a permanent boarder, the innkeeper was not liable for loss of her property. The case is carefully distinguished from the case of Hancock v. Rand, 94 N.Y. i. and it is pointed out that though the plaintiff in that case had been an inmate of the hotel for seven months, nevertheless she was the wife of an officer in the United States army who was con tinually subject to marching orders and had no permanent residence anywhere. This is a very simple case, and the decision is the ordinary one on these facts. Whether a per son at an inn is guest or boarder is a mere question of fact; the length of time, the fact that the inn is in the place of residence of the person entertained, and the special bargain with the innkeeper are all significant. J. H. B. An innkeeper owes a public duty only to way farers, and even if the applicant is originally re ceived as a guest the test remains that only so long as he may be considered in truth a traveler is the innkeeper liable as such, This is a question of fact often difficult to determine. An attorney following his court, a guest taken ill, a witness
