they were accompanied by any bill of lading. They were sent by steamer from Norfolk, and were marked S. (in a diamond), 14. S. indicating Severson, and the figure 14 the number of plaintiffs' bin on the steamer's dock, where goods consigned to him were placed on arrival. The shipment was accompanied by a letter from Severson, containing an invoice of items, and advising them of the shipment, and telling them that this, with other shipments, would more than cover the draft of $250. Defendants, Brewer and Kline, obtained an attachment against the property of Severson, as a non-resident, in an action against him. Under it the other defendant, Smith, a marshal, seized a portion of the shipment of July 16th, most of which was taken from defendants' bin, and the residue as the goods were being delivered from the steamer; the whole of which was subsequently sold under the attachment. The plaintiffs brought this action, and recovered judgment, for the value of the property taken, $82.87. On appeal, held, it is clear that Severson made this shipment with the intention that the property should pass to plaintiffs for their security and indemnity in accepting the draft. This is not like the case of a principal who consigns goods to a factor for sale, and draws against the proceeds, in which case the factor's lien is on the proceeds or upon the goods in his possession for his security if he has accepted or paid the draft. But it is the case of a draft upon a factor, to be covered by goods to be sent, and which goods, the moment they are shipped, vest absolutely in the factor as his security or indemnity for the prior acceptance and subsequent payment of the draft. Vertue v. Jewell, 4 Camp. 31, cited. The plaintiffs accepted the draft with the expectation of the drawer's shipping goods to cover it. The goods in controversy were shipped by the drawer for that purpose. They were shipped upon the assumption that the draft would be accepted, and before they were sent the draft had been accepted. The moment, therefore, they were shipped, the property passed to the plaintiffs, and it was constructively in their possession, and subject exclusively to their control, when it was attached as the property of Severson. The difference between the value of the goods and the plaintiffs' special property in them certainly belonged, however, to plaintiffs' principal in Norfolk, and was subject to attachment for his debts. By this attachment it was applied to them. Judgment should be modified to amount of plaintiffs' special property. Heard et al. v. Brewer et al. Opinions by Daly, C. J., and J. F. Daly, J. 2. General rules as to the lien of a consignee. - The general rule is, that the right of lien, which is in the nature of a pledge, attaches only to property which has come into the actual possession of the bailee, factor or other person, who claims the benefit of it; this is subject, however, to qualification, for a right of lien may attach to a thing which is incapable of possession, or where the possession is simply constructive, the actual possession being in another, of which latter class is that lien which a consignee or factor has upon goods for advances made or agreed to be made upon them, and which attaches the moment they are shipped or consigned to him, subject only to the right of stoppage in transitu in the event of his insolvency before they come into his possession. The mere circumstance that a consignor ships goods to a factor for sale, and is in the habit of drawing upon the factor against the proceeds, does not of itself give to the factor any right to anticipate the possession, or to keep it against the unpaid consignor; but it is otherwise if bills are accepted upon the credit of a particular consignment, for then there is a specific pledge of the property, and a transfer of it to the factor takes place by the delivery or indorsement to him of the bill of lading, so that it is constructively in his possession, and he has a lien upon it for his indemnity the moment it is shipped or consigned to him. In the absence of a bill of lading, the intention to vest the property in the goods in the consignee upon the shipment, so as to give him the constructive possession, subject only to the equitable right of stoppage in transitu, may be inferred from other documents, such as receipts or orders, or by the correspondence which has taken place between the parties. The question generally is, whether there was an appropriation or pledge of the specific property to the factor at the time of shipment, in consideration of the advances made or agreed to be made. It is the intention of the consignor at the time of shipment which is to govern. Bruce v. Wait, 3 Mee. & W. 15; Haille v. Smith, 1 Bos. & Pul. 563, cited. Ib. CONTRACTS. 1. Contracts of sale of real estate. The plaintiff, who was acting as defendant's broker, introduced one Gilmore to defendant, and, after some negotiation, an instrument in writing was drawn up and signed by both parties, which was in these words: "This is to certify, that I, Samuel Kissick (the defendant), sell to Peter Gilmore, for the sum of $17,000, the house (describing it), and that I have received the sum of $75, the balance, amounting to $16,925, to be paid in thirty days." Gilmore refused to take the property. Plaintiff brings this action to recover his commissions upon the sale. Defendant claims that the legal effect of the instrument was merely to give to Gilmore an option to take the property at the price named within thirty days; and that the $75 was paid for this right of option or election, and not as earnest on a contract of sale. Judgment for plaintiff. On appeal, held, that the agreement in question is an absolute agreement to sell, which a court of equity would compel the defendant to perform, even though the instrument had been signed by him only. Gilmore subscribing his name to the instrument could have been for no other purpose except to indicate his consent to purchase the house upon the terms agreed upon. What is necessary is a clear accession on both sides to the same set of terms, and this took place as effectually when Gilmore put his name to the instrument, as if the words "And I, Peter Gilmore, buy" had been contained in the instrument after the words "I, Samuel Kissick, sell." Judgment affirmed. Simonson v. Kissick. Opinion by Daly, C. J. 2. Part payment of purchase-money. —A party who pays part of the purchase-money and afterward refuses or neglects, without legal excuse, to pay the rest and take the deed, cannot recover back what he has paid, but that is because of his wrongful act in not fulfilling the contract, and not upon any assumption that the amount so paid is a consideration for the exercise of an option to take the property or not. Ib. 3. Brokers' right to commissions on sales.- A purchaser's ability is to be assumed, unless the contrary appear, and when a contract in writing for the sale of the property at the price asked is signed by the owner and the purchaser, the broker has earned his commission, and his right to it is in no way affected by the subsequent refusal of the purchaser to fulfill the contract. Ib. 4. The rule, as to contracts for sale of land, in equity. -The rule in contracts for the sale of land is, that the remedy in equity is mutual, and that the vendor can enforce the contract in all cases where the purchaser can sue for specific performance. Ib. 5. Questions as to whom credit was given: statute of frauds. It was necessary that a delicate surgical operation should be performed on the defendant's brother, who resided at Groton, Connecticut. The physician of his brother telegraphed to defendant to bring on a surgeon from New York at once, and named plaintiff in the telegram as a suitable person to bring. Defendant immediately went to plaintiff's office and showed him the telegram, and it was arranged that they should meet at the depot. Nothing was said about who was to pay the plaintiff. The parties went together to Groton, defendant paying the railroad fare for both; and the operation was successfully performed. Plaintiff made out his bill to defendant's brother, and wrote to the brother on several occasions calling on him to settle the bill. Upon this state of facts, the judge left it to the jury to determine who employed the plaintiff, or upon whose account and credit the services were rendered. Judgment for plaintiff. On appeal, held, in the question which arises so frequently, under the statute of frauds, to whom was the credit given, in cases where the point is whether the promise was collateral to answer in default of another or an original undertaking, great weight is attached to the fact, that the plaintiff has charged the debt upon his books or made out the bill to the person who received the goods, to show that the promise of the defendant was simply collateral, and therefor void, for not being in writing. This is not absolutely conclusive, as it may be shown that it was done by mistake; but it is a most material and without explanation a controlling circumstance, for as was said by Woodruff, J., in Direom v. Frazee, E. D. Smith, the plaintiff, thereby puts his own construction upon the agreement. Plaintiff made out his bill against defendant's brother, and nothing appearing to show that this was done by mistake, or any explanation given, the construction stated must be given to so material a circumstance; so that even if defendant had promised to pay the plaintiff, the undertaking would be collateral and void under the statute, not being in writing. There is nothing in the evidence, in any point of view, to support the verdict. Judgment reversed. Buck v. Amidon. Opinion by Daly, C. J. 6. Principal and agent.-It is a general principle pervading the law of agency, that one who procures services to be done for another is not himself chargeable, unless he omits to make known his principal, or erroneously supposes that he has authority, or exceeds his authority, or expressly or impliedly engages to be answerable, either by directly promising to pay for them if rendered, or by doing or saying something which justifies the person who is to perform them in supposing that the one who applies to him engages to pay for them. Owen v. Garsch, 2 Esp. 567, cited. Ib. 7. Cases where finding of jury is conclusive.—It was suggested in answer to the appeal in the case at law, that the question to whom the credit was given was one of the intention of the parties as deduced from the facts and circumstances, and that the jury having drawn the deduction that the services were rendered upon the credit of defendant, their verdict should not be disturbed. The learned judge, giving the opinion of the general term, says: Where, upon an uncontro verted state of facts, the point involved remains doubtful, or upon undisputed facts inferences may be drawn either way, the question is probably one for the jury, and their finding should be conclusive. But in all such cases there must be something in the evidence to found the conclusion upon; and, in this case, I fail to discover any thing showing or tending to show the intention claimed to exist. Ib. ant. 1. Evidence as to value of services.-It appeared on the trial that plaintiff was employed by defendant's firm, and in August, 1868, was discharged by defendDefendant, however, allowed him to remain around his store, and plaintiff performed certain services at the request of two of defendant's dormant partners. On February 2, 1870, he, however, formally discharged the plaintiff and refused to allow him on his premises. Plaintiff brought suit previously to recover for his services up to January, 1870, which suit defendant settled. This action is brought to recover for services after that date. Plaintiff introduced on trial a copartnership agreement, which provided for his employment for five years, and also attempted to prove a verbal agreement for his employment. Defendant's book-keeper was asked, "Were his (plaintiff's) services worth any thing since the first of January, and if so, what?" This question was objected to, and was excluded, because there was evidence of an agreed rate of compensation. On appeal from judgment in favor of plaintiff, held, the agreement to employ the plaintiff for five years, whether founded upon the copartnership agreement or the verbal agreement, was equally void. The plaintiff was no party to the instrument, and there was, therefore, a want of mutuality, and the verbal agreement was void by statute, not being in writing. But for services actually rendered he was entitled to recover their value, and as the plaintiff had been paid for his services up to January, 1870, and had not been formally discharged until February 2, 1870, he was entitled to recover what his services were worth during this period. The question to defendant's book-keeper was, however, improperly excluded for the reason named, and for this error judgment must be reversed. Briggs v. Smith, Jr. Opinion by Daly, C. J. 2. Active and dormant partners.-The active member of a firm who manages the whole business is entitled to dismiss any employee who is not engaged under a valid agreement for a definite period, and, if he persists in remaining under the countenance and support of the dormant partners, I doubt if he can maintain any action against the members of the firm jointly; and if he is not limited to such remedy as he may have against those by whose request and authority he continued to render any services. Willis v. Dyson, 1 Starkie, cited. Ib. FIRE INSURANCE. Proofs of loss.-The plaintiffs had their stock in trade insured against fire in several companies to the amount in the aggregate of $10,600, and, in their sworn proofs of loss, claimed that the actual cash value of the property insured by said companies and destroyed by fire was $16,336.23, and, therefore, demanded the total amount of each policy from the company issuing it. The defendants claim that the whole loss did not exceed $4,600. The referees found that the total loss was $9,172.18, and awarded against each company damages on its policy proportioned to the total loss and total insurance. From the judgments entered on the report of the referees, the insurance companies appeal. They set up as a bar to recovery, that the plaintiffs, in their said sworn proof of loss, in claiming it to be $16,336.23, were guilty of fraud, attempt at fraud, and of false swearing, which avoided the policies, according to a stipulation therein; they also claim that the finding was a compromise finding, and was not sustained by evidence. On appeal, held, the fact that the plaintiffs swore that their loss was $3,489.03 more than the referees found it to be, is not even presumptive evidence of false-swearing or of fraud. No matter how much the amount sworn to by them may exceed the recovery, no fraud can be predicated, unless two points be established against them, i. e., that there were no such goods of such value destroyed; and, that the insured knew or must have known the fact when they swore to their preliminary proofs of loss. The report of referees or verdict of a jury is to be deemed conclusive for the purposes of the particular action as to the actual loss, but it is not conclusive of false swearing or fraud. The evidence offered by defendant was circumstantial, and did not conclusively establish the impossibility of there having been goods destroyed as claimed by the plaintiffs. It is no objection to the recovery that it was for a less sum than sworn to and claimed by plaintiffs, so long as the plaintiffs do not appeal from it. The referees took into consideration the evidence of defendants' witnesses as to the extent of the fire, the position of the goods found after it, etc., and made due allowance by finding a smaller sum. The award, therefore, cannot be said to be an arbitrary compromise or guess-work. It has been held, in cases where the jury has found even a smaller sum proportionately than in this case, that this was no objection to the verdict, and to be an error, if an error, of which the insured alone can complain. Wolf v. Goodhue Ins. Co., cited. Unger et al. v. People's Fire Ins. Co.; Same v. New Amsterdam Fire Ins. Co. Opinion by J. F. Daly, J. LIENS. See Consignor and Consignee. SALES. See Contracts. DIGEST OF RECENT AMERICAN DECISIONS. SUPREME JUDICIAL COURT OF MASSACHUSETTS.* BANKRUPT. 1. If a mortgagor, who knows himself to be insolvent, sells and delivers the mortgaged property with the consent, express or implied, of the mortgagee, and afterward gives another mortgage to secure the same debt which the old mortgage was given to secure, the new mortgage is a preference within the United States bankrupt act of 1867, c. 176. Forbes v. Howe. 2. The fact that a mortgage was given in the usual and ordinary course of business does not necessarily * From 102 Massachusetts Reports. exclude the inference that it was given with the intent to prefer. Ib. 3. A mortgage given by an insolvent debtor to secure advances previously made is not purged of its character as an unlawful preference because it was given in pursuance of an agreement on which the advances had been made; nor because the debtor was induced to give it by the hope of obtaining for the creditor means for the continuance of his business; nor because it was intended to make up security which had been reduced by the sale, with the consent of the mortgagee, of property included in a previous mortgage to him, under an understanding that a new security should be given. Ib. 4. In an action on a judgment recovered in another State, whose law and practice are not shown to be different from our own, upon a debt provable in bankruptcy, after the debtor had been adjudged a bankrupt, under the U. S. statute of 1867, ch. 176, his certificate of discharge in bankruptcy is no defense. Bradford v. Rice. BILL OF EXCHANGE. The presentment of a draft for payment by a notary himself cannot be proved by his certificate that the draft was duly presented, and evidence of a presentment by his deputy. Ocean National Bank v. Williams. CARRIER. 1. If a railroad train of nine cars, loaded with various lots of freight, becomes obstructed by a snow storm, so that four of the cars must be left behind on a cold night without shelter, and the conductor is able to select which cars shall be left, and knows that one car contains goods which will be injured by freezing, he is not bound, as matter of law, to take that car forward rather than other cars containing goods of which, in respect to their liability to injury by freezing, he knows nothing. Sweetland v. Boston and Albany R. R. Co. 2. In an action against a railroad corporation to recover for the injury of apples by freezing, as having occurred within two days, during which they were in course of transportation by the defendants over their railroad in the winter, and part of the way through a cold snow storm, if there is only evidence that the apples were frozen when they arrived at their final destination, but no evidence of their condition when they were received by the defendants from a connecting railroad, over which they had been transported in the same car during the previous day, except the fact that the weather was very cold when they reached the defendants, the defendants are entitled, on their request, to a ruling that there is "no evidence in the case that the apples were delivered to them before they were frozen;" although, except the facts named, no evidence was offered to show that they were frozen before or at the time of such delivery. Ib. 3. A special contract between the shipper of goods and a common carrier, for their carriage at the shipper's risk of injury during transportation, does not exempt the carrier from liability for an injury caused to the goods during transportation by his own negligence. School District in Medfield v. Boston, Hartford & Erie Railroad Co., 552. ESTOPPEL. A defendant who, in an action against him on a promissory note, has availed himself by plea and proof of a subsequent note for the same amount as given in renewal thereof, and has prevailed on that defense, is estopped to set up, in defense against an action by the same plaintiff on the second note, that he gave it upon a condition which never was fulfilled, but not to set up a total or partial failure or want of consideration in the original note. Hooker v. Hubbard. EVIDENCE. 1. There is no presumption of law that a drop-letter was deposited in the post-office on the day of the date of its post-mark. Shelburne Falls National Bank v. Townsley. 2. A copy, sworn to be correctly made from a press copy of a letter, is admissible, as secondary evidence, to prove its contents, without producing the press copy. Goodrich v. Weston. 3. In an action on a written contract for the manufacture and delivery of "horn chains," oral evidence is admissible to show that the parties intended by "horn chains," chains made of hoofs and horns. Sweet v. Shumway. 4. In a question whether in a contract for the manufacture of horn chains, by "horn chains," were intended chains partly of hoofs, or chains wholly of horn, admission of the testimony of one of the parties to the contract, that he had experimented by putting horn rings and hoof rings together, and that almost invariably the horn would break, forms no ground of exception, though the witness had previously testified that he was not a practiced manufacturer, had only put together rings made by others, and claimed to know no more as to hoof or horn than any one else. Ib. FIXTURE. The owner of a house and barn put up in the house several marble slabs, laid upon, but not fastened to, brackets screwed into the walls, and also in 1855 placed in the cupola of the barn a bell hung on an axle resting upon a wooden frame, which was placed on the platform of the cupola, and secured to it by cleats fastened by nails. In 1864 he conveyed the house and barn, but remained in possession as tenant of his grantee. Held, that, on leaving the premises in 1867, he might remove the slabs, but not the bell. Weston v. Weston. INSURANCE. 1. Life insurance. — In an action on a policy of insurance of the life of a person who voluntarily killed himself, which was provided to be void if he should "die by suicide," the plaintiff, "in order to take the death out of the proviso," offered to prove that "the assured at the time of committing the act of self-destruction was insane; that he acted under the influence and impulse of insanity, and that his act of self-destruction was the direct result of his insanity;" but the judge ruled that such proof would not entitle the plaintiff to recover, and directed a verdict for defendant. Held, that the plaintiff had no ground of exception. Cooper v. Massachusetts Insurance Co. FIRE INSURANCE. A policy insuring the mortgagor of a chattel against loss thereof by fire, expressed to be void "if the title of the property is transferred or changed," and providing that "the entry of a foreclosure of a mortgage shall be deemed an alienation of the property," is avoided by an act which of itself, and without any further formality or process on the part of the mortgagee, will deprive the assured of all right and title in the chattel unless he shall pay the debt, such as the giving and recording, under the Gen. Sts. ch. 151, §§ 6, 7, by notice of intention to foreclose the mortgage for breach of its condition. McIntire v. Norwich Insurance Co. MASTER AND SERVANT. The fact that very near where a workman is voluntarily employed in a manufactory, machinery not connected with his work is in motion, the dangerous nature of which is visible and constant, is not conclusive that he has taken on himself the risk of being injured by it, in modification of the implied contract of his employer to provide for him a reasonably safe place in which to do his work; and if through inattention to the danger he meets with such an injury, while doing his work, and sues his employer therefor, the questions whether he met with it with due care on his own part, and by reason of the the neglect of his employer to give him suitable notice of the danger, are for the jury; and the facts of his youth and inexperience, and the directions previously given to him by agents of the employer about the manner of doing the work, are to be considered upon the question of due notice; but the fact that the cost of covering the dangerous machinery with a box would have been slight, and that it was so covered soon after the accident, are immaterial. Coombs v. New Bedford Cordage Co. PROMISSORY NOTE. 1. The payee of a promissory note, who indorses it for the accommodation of the maker, may take it up at maturity without waiting for demand and notice as indorser, and sue the maker thereon. Pinney v. McGregory. 2. When notice of the protest of a promissory note, addressed to the several indorsers, are sent by the notary by mail, from the place where the note was payable, in one inclosure, addressed to the last indorser, in order to charge a prior indorser by forwarding such notice to him through the post-office, in a drop-letter addressed to him, at said last place (there being no system of letter delivery by carriers in that place), must deposit the drop-letter in the post-office on the same day he receives it from the notary. Shelburne Falls National Bank v. Townsley. TRUST AND TRUSTEE. A fund bequeathed in trust to pay the income to one until his death, and then the capital to another, included shares in the stock of a railroad corporation. This corporation, out of its net earnings, accumulated during the term of the trust, bought in the market part of its own stock; invested other such earnings to an amount equal to twenty per cent of the par value of the residue of its stock in property, a large portion of which was not required for the use and improvement of the railroad; and voted to create a number of new shares of the same par value, to be issued and disposed of as the directors should deem proper. The directors then voted to offer to the individual stockholders the right to take part of the new stock at par, in the proportion of twenty per cent of a new share for each old share held by the taker, and that if any individual stockholder should not avail himself of his right, they would dispose of it as they might see fit; and at the same time after a preamble reciting that, "whereas there is a large amount of surplus earnings invested in the shares and property of this company, which the stockholders have instructed the directors to divide," they declared a dividend of forty per cent on the old shares held by individual stockholders, payable "twenty per cent in the shares of the company, which were purchased or held by this corporation in its corporate capacity, and twenty per cent in cash derivable from the shares which the stockholders entitled to this dividend shall respectively pay for the new stock taken by them under the terms of the preceding vote." Held, that of the avails of the dividend to the trustees and so much as was derived from the first twenty per cent was payable as income to the life tenant; and so much as was derived from the second twenty per cent accrued to the capital of the trust fund. Leland v. Hayden. COURT OF APPEALS ABSTRACT. JUNE DECISIONS, 1871. BAILMENT. 1. Rights of bailor and bailee: sale of pledge without notice. The plaintiff specifically pledged certain bonds to the defendant, a banking association, to secure the payment on demand of $15,000. Subsequently the defendant sold these bonds at private sale, and from the amount received repaid the loan and applied the balance toward the settlement of an over-draft which plaintiff had made upon it. No demand was made upon plaintiff for the $15,000, and no notice was given him of the sale, which notice and demand it was claimed was impracticable, on account of plaintiff having absconded. Subsequently the defendant, for a sum less than the face, transferred their whole claim for the over-draft, without deduction for the balance received on the bonds, to one White. This action was brought to recover the bonds or their value. Held, that it is not sustained by the authorities that the inability of a pledgee to make a demand and give notice of the time and place of a sale entitles him to sell without such demand and notice, and without judicial proceedings. Strong v. National Banking Association. Opinion by Rapallo, J. 2. Even if demand and notice could be dispensed with, a private sale in such a case cannot be sustained unless the parties have stipulated for such a sale. Ib. 3. The sale of the bonds having been unauthorized, the plaintiff had the right, on becoming informed of it, to elect whether to ratify it, and claim the benefit of the surplus in reduction of the over-draft, or to repudiate the sale and the credit of the surplus, and hold the defendant responsible for the bonds. Ib. 4. Having made his election, and repudiated the sale and credit, he became liable to White for the amount of the over-draft and entitled to demand of the bank the bonds or their value on paying the $15,000, and interest for which they had been pledged. Ib. BILLS AND NOTES. 1. Bona fide holder, who is: practice.-In an action upon a note diverted from the purpose for which it was given by the maker, the onus is cast upon the plaintiff of showing that he is a bona fide holder. Farmers & Citizens National Bank v. Noxon. Opinion by Grover, J. 2. A bank is a bona fide holder where it receives in the ordinary course of business from a depositor who is embarrassed, and keeps an account as agent, but who is in the habit of procuring notes to be discounted by it, a note of no larger amount than he had before presented, if there is nothing to excite the suspicion of the bank, and put it on inquiry. Ib. 3. In this court exceptions to the findings of a referee raise only the question whether there was any evidence in support of the finding in the supreme court, whether the finding is against the weight of evidence. Ib. CHATTEL MORTGAGE. 1. Neglect to file: rights of judgment creditor: how waived. Actual notice to plaintiffs, in an execution which has been levied upon personal property, of the existence of a chattel mortgage thereupon, does not supply the omission to properly file such mortgage. Barker v. Doty. Opinion by Folger, J. 2. But where the sheriff, under such execution, offers the property for sale, subject to an unfiled chattel mortgage the execution creditor standing by and not dissenting, the creditor, if he purchases, gets no more than the debtor's equity of redemption. Ib. CONTRACTS. 1. Verbal, when not merged in written: common carriers. The rule that prior negotiations are merged in a subsequent written contract does not apply to a verbal contract for the carriage of goods for which a bill of lading is subsequently made when the contract has been acted upon, and the shipper has parted with all control over his goods before the receipt of the bill, unless such shipper expressly assents to its terms. Bostwick v. Baltimore and Ohio Railroad. Opinion by Rapallo, J. 2. The defendants' agent agreed to transport to New York certain bales of cotton by "all rail" for a specified rate (which was higher than the part rail and part water rate), and took possession of the cotton for that purpose, giving the plaintiff receipts, but no bill of lading. Two days after the bill of lading was delivered. The bill contained printed conditions to the effect that the goods should be transported by certain railroad companies to Columbus, Ohio; there delivered to the railroad company; by it transported to Bellaire, and there delivered to the agents of the next connecting steamboat, railroad or forwarding line, and that the railroad and steamboat companies, etc., should not be liable for loss or damages by the dangers of navigation while on the sea or rivers, etc., and that by accepting the bill of lading the shipper agreed to its stipulations and conditions. The cotton was carried to Baltimore, and a part of it shipped by one vessel, and arrived safely in New York. Upon its receipt the freight upon the whole at the "all rail" rate was paid by the plaintiff's consignors. Part of the cotton was shipped by another vessel, which was lost at sea with its contents. This action was brought to recover damages for the cotton lost. Held, that the goods having been shipped under an agreement that they should be carried "all rail," a loss at sea is no excuse for their non-delivery to the plaintiff. Ib. 3. The non-delivery of the goods was a breach of duty on the part of the defendant unless excused. Ib. 4. The verbal agreement having been consummated and rights having accrued thereunder, the mere receipt of the bill of lading, inadvertently omitting to examine the conditions, was not sufficient to conclude the plaintiff from showing what the actual agreement was under which the goods were shipped. Ib. See Practice, 8. MUNICIPAL CORPORATIONS. 1. Rights of, as to lands owned by them in fee for a specific purpose: opening of streets through. The legislature, by an act (laws of 1869, chap. ), provided for |