Opinion of the court.

1. That the plaintiff having purchased the lands which were the subject of the lease, became entitled thereby to the benefit of the lease, and the assignment was not necessary to enable him to maintain the action.

If he had shown, or offered to show that he had become the owner of the land, the court would probably have permitted him to do so. But as he only offered the lease and the assignment, the court could not admit them on the ground of a purchase of which there was no evidence.

2. Then it is argued that although Breeden & Co. might have been, as the lease shows, citizens of Pennsylvania when the lease was made, this may not have been so when suit was brought; and that, as the plaintiff was a citizen of Kentucky, and the defendants, of Pennsylvania, this makes a prima facie case of jurisdiction in the court, which can only be defeated by evidence that the assignors were citizens of the same State with defendants when the suit was brought.

This court has decided the proposition otherwise. In Turner v. Bank of North America,* the plaintiff recovered judgment in the Circuit Court as assignee of Biddle & Co. The only error assigned was, that it did not appear in the record that Biddle & Co. were citizens of a State other than North Carolina, in which district the defendant resided, and where he was sued; and for this cause, the judgment was reversed. The soundness of this decision is recognized in the cases of Mollan v. Torrance,† and Bank of United States v. Moss, and we take the doctrine to be settled, that when a party claims in the Federal courts through an assignment of a chose in action, he must show affirmatively that the action might have been sustained by the assignor if no assigument had been made.

The case of De Sobry v. Nicholson, relied on by plaintiffs counsel, is not in point. There plaintiff had become possessed of all his partner's interest in the contract sued on without assignment, and none was relied on. The partner not being

Statement of the case.

a necessary party, his citizenship in the same State with defendant did not defeat the jurisdiction.

JUDGMENT AFFIRMED.

INSURANCE COMPANY v. MOSLEY.

1. The declarations of a party himself, to whomsoever made, are competent evidence, when confined strictly to such complaints, expressions, and exclamations as furnish evidence of a present existing pain or malady, to prove his condition, ills, pains, and symptoms, whether arising from sickness, or from an injury by accident or violence. If made to a medical attendant, they are of more weight than if made to another person.

2. So is a declaration made by a deceased person, contemporaneously or nearly so, with a main event by whose consequence it is alleged that he died, as to the cause of that event. Though generally the declarations must be contemporaneous with the event, yet where there are connecting circumstances, they may, even when made some time afterwards, form a part of the whole res gestæ.

3. Where the principal fact is the fact of bodily injury, the res gestæ are the statements of the cause made by the injured party almost contemporaneously with the occurrence of the injury, and those relating to the consequences made while the latter subsisted and were in progress.

APPEAL from the Circuit Court for the Northern District of Illinois, the case being this:

The Travellers' Insurance Company of Chicago insured the life of one Mosley for $5000, in favor of his wife.

"Within ninety days, after sufficient proof that the assured at any time within twelve months after the date of this policy shall have sustained personal injury, caused by any accident within the meaning of this policy and the conditions hereunto annexed, and such injuries shall occasion death within three months from the happening thereof."

The policy among other provisos contained this one: "Provided always, That no claim shall be made under this policy by the said assured, in respect of any injury, unless the same shall be caused by some outward and visible means, of which proof satisfactory to the company can be furnished, and this in

Statement of the case.

surance shall not extend to any injury caused by or arising from natural disease."

Mosley having died within the term for which his life was insured, his wife, who alleged that he had died from personal injury, caused by accident, demanded the $5000 of the corr pany, which they declined to pay. She thereupon brought assumpsit on the policy. The declaration alleged, that on the 21st of July, 1866, the said Mosley "accidentally fell down a pair of stairs and was severely injured thereby, and that he, within three months after the happening of the said accident, to wit, &c., died from the effects of the said accidental fall, and that the death was occasioned by the said injury and accident, and that the defendant had sufficient proof of said accident and death ninety days before the commencement of this suit." On a plea of the general issue and a trial before a jury, the main point in question was the cause of the death of Mr. Mosley; the plaintiff contending that it was the consequence of a fall that he met with in going into his back yard on the night between the 18th and 19th of July, 1866, and the defendant, that it was not.

It appeared that Mr. Mosley was in his usual health until that night; that he and Mrs. Mosley had gone to bed; that between 12 and 1 o'clock he got up and went down stairs; that he came up and complained to his wife and son of having had a fall; and that the symptoms were described by him at the time; that he continued ill until Monday, the 22d, when he died. There was testimony, medical and other, given of his mental and bodily condition from the time of the alleged accident up to the time of his death; there was also medical testimony given of his condition after death, and of an examination of the cranium and brain, externally and internally. The plaintiff insisted that the evidence she introduced tended to show that Mr. Mosley died in consequence of the fall before referred to, and the defendant insisted that the evidence introduced by the company tended to show that death was not caused by any fall, but was in consequence of disease, (congestion of the brain.)

Statement of the case.

Mrs. Mosley testified in her own behalf, that on Wednesday night, the 18th of July, 1866, she and her husband had gone to bed. Between twelve and one o'clock he got up and went down stairs for the purpose of going out back; she didn't know how long he was gone. When he came back he said he had fallen down the back stairs and almost killed himself; that he had hit and hurt the back of his head in falling down the stairs which led out back. She noticed that his voice trembled, and she inquired into the matter at once. He complained of his head, and appeared faint and vomited; he threw up almost as soon as he got into the room; she got up, and he laid down on the sofa. He had nothing on but his pataloons and vest; she didn't sleep any more that night, and was up with him all night. He complained and appeared to be in great pain. She asked him if she should send for Dr. Webster, who lived near, but he said no; he thought he should be better, and she did not then call the Doctor. On Thursday morning he said he felt bad, and there was a recurrence of fainting.

To all that portion of the testimony of Mrs. Mosley which set forth the declarations of her husband about his falling down the back stairs and almost killing himself and hurting the back part of his head, the defendant's counsel objected, and their objection being overruled, the defendant excepted.

A son of the assured, testified in behalf of the plaintiff, "that he slept in the lower part of the building occupied by his father; that about 12 o'clock of the night before mentioned he saw his father lying with his head on the counter, and asked him what was the matter; he replied that he had fallen down the back stairs and hurt himself very badly." The defendants objected to both the question and answer. An exception to their admission followed.

The same witness testified further, "that on the day after the fall, his father said he felt very badly, and that if he attempted to walk across the room his head became dizzy; on the following day he said he was a little worse, if anything." The admission of this testimony also was excepted to by the defendants.

Argument for the insurance company.

There was no witness who testified that he saw the deceased fall down stairs; though several did, that there were such back stairs as it was testified that he spoke of falling down.

Verdict and judgment having been given for the plaintiff, and the case being here, the questions as presented by the bill of exceptions were:

1. Whether the court erred in admitting the declarations of the assured as to his bodily injuries and pains?

2. Whether it erred in admitting such declarations to prove that he had fallen down the stairs?

Mr. Sansum, for the plaintiff in error:

Without spending time upon the first of the questions presented by a technical division of the bill of exceptions-and a decision on which, adverse to our view of law, does not affect our main objections-we contend that the widow must show

1st. That her husband died from injuries caused by accident, and,

2d. That the proof thereof was satisfactory to the insurance company.

The insurance is not against death generally, but against death from accidental injuries.

1. It is expressly provided that proof satisfactory to the company shall be made. It is the judge as to what proof shall be satisfactory. This may be a hard agreement, but it is the contract between the parties, and the court will enforce the contract that the parties have made. The company, by refusing to pay, and by contesting the demand, says, that the proof of the injuries and accident are not satisfactory. There is no allegation in the declaration that proof of the injuries and accident has been satisfactory to it.

2. As it is a part of the case, that no witness was called to prove that the deceased fell down the stairs, it cannot be pre sumed that evidence was given to prove an accident. And supposing that the court shall go so far as to hold that the declarations of the deceased are admissible to establish the