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Dillon on Municipal Corporations, § 587; 2 Redfield's terprises and build up private fortunes, is none the Laws of Railways, 398, rule 2.

It must be conceded that there are such rights in every free government beyond the control of the State. A government which recognized no such rights, which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism. It is true it is a despotism of the many, of the majority, if you choose to call it so, but it is none the less a despotism. It may well be doubted if a man is to hold all that he is accustomed to call his own, all in which he has placed his happiness, and the security of which is essential to that happiness, under the unlimited dominion of others, whether it is not wiser that this power should be exercised by one man than by many. The theory of our governments, State and national, is opposed to the deposit of unlimited power any where. The executive, the legislative, and the judicial branches of these governments are all of limited and defined powers.

There are limitations on such power which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name. Νο court, for instance, would hesitate to declare void a statute which enacted that A and B, who were husband and wife to each other, should be so no longer, but that A should thereafter be the husband of C, and B the wife of D. Or which should enact that the homestead now owned by A should no longer be his, but should henceforth be the property of B. Whiting v. Fond du Lac, 25 Wis. 188; Cooley on Constitutional Limitations, 129, 175, 487; Dillon on Municipal Corp., § 587.

Of all the powers conferred upon government, that of taxation is most liable to abuse. Given a purpose or object for which taxation may be lawfully used and the extent of its exercise is in its very nature unlimited. It is true that express limitation on the amount of tax to be levied or the things to be taxed may be imposed by constitution or statute, but in most instances for which taxes are levied, as the support of government, the prosecution of war, the national defense, any limitation is unsafe. The entire resources of the people should in some instances be at the dis-❘ posal of the government.

The power to tax is, therefore, the strongest, the most pervading of all the powers of government, reaching directly or indirectly to all classes of the people. It was said by Chief Justice Marshall, in the case of McCulloch v. The State of Maryland, 4 Wheat. -, that the power to tax is the power to destroy. A striking instance of the truth of the proposition is seen in the fact that the existing tax of ten per cent imposed by the United States on the circulation of all other banks than the national banks, drove out of existence every State bank of circulation within a year or two after its passage. This power can as readily be employed against individuals and in favor of others, so as to ruin the one class and give unlimited wealth and prosperity to other, if there is no implied limitation of the uses for which the power may be exercised.

To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private en

less a robbery because it is done under the forms of law and is called taxation. This is not legislation. It is a decree under legislative forms.

Nor is it taxation. A "tax," says Webster's Dictionary, "is a rate or sum of money assessed on the person or property of a citizen by government for the use of the nation or State." "Taxes are burdens or charges imposed by the legislature upon persons or property to raise money for puplic purposes." Cooley's Const. Lim. 479.

Coulter, J., in Northern Liberties v. St. John, 13 Penn. St. 104, says, very forcibly: "I think the common mind has everywhere taken in the understanding that taxes are a public imposition, levied by authority of the government for the purpose of carrying on the government in all its machinery and operations - that they are imposed for a public purpose. See, also, Pray v. Northern Liberties, 31 Penn. St. 69; Matter of Mayor of New York, 11 Johns. 77; Camden v. Allen, 2 Dutch. 398; Sharpless v. Mayor of Philadelphia, supra; Hanson v. Vernon, 27 Iowa, 47; Whiting v. Fond du Lac, 25 Wis. 188.

We have established, we think, beyond cavil, that there can be no lawful tax which is not laid for a public purpose. It may not be easy to draw the line in all cases so as to decide what is a public purpose in this sense and what is not.

It is undoubtedly the duty of the legislature which imposes or authorizes municipalities to impose a tax to see that it is not to be used for purposes of private interest instead of a public use, and the courts can only be justified in interposing when a violation of this principle is clear and the reason for interference cogent. And in deciding whether, in the given case, the object for which the taxes are assessed falls upon the one side or the other of this line, they must be governed mainly by the course and usage of the government, the objects for which taxes have been customarily and by long course of legislation levied, what objects or purposes have been considered necessary to the support and for the proper use of the government, whether State or municipal. Whatever lawfully pertains to this and is sanctioned by time and the acquiescence of the people may well be held to belong to the public use and proper for the maintenance of good government, though this may not be the only criterion of rightful taxation.

But in the case before us, in which the towns are authorized to contribute aid by way of taxation to any class of manufacturers, there is no difficulty in holding that this is not such a public purpose as we have been considering. If it be said that a benefit results to the local public of a town by establishing manufactures, the same may be said of any other business or pursuit which employs capital or labor. The merchant, the mechanic, the innkeeper, the banker, the builder, the steamboat owner are equally promoters of the public good, and equally deserving the aid of the citizens by forced contributions. No line can be drawn in favor of the manufacturer which would not open the coffers of the public treasury to the importunities of twothirds of the business men of the city or town.

A reference to one or two cases adjudicated by courts of the highest character will be sufficient, if any authority were needed, to sustain us in this proposition.

In the case of Allen v. The Inhabitants of Jay, 60 Me. 124, the town meeting had voted to loan their

credit to the amount of $10,000 to Hutchins and Lane if they would invest $12,000 in a steam saw-mill, gristmill, and box-factory machinery, to be built in that town by them. There was a provision to secure the town by mortgage on the mill, and the selectmen were authorized to issue town bonds for the amount of the aid so voted. Ten of the taxable inhabitants of the town filed a bill to enjoin the selectmen from issuing the bonds.

The Supreme Judicial Court of Maine, in an able opinion by Chief Justice Appleton, held that this was not a public purpose, and that the town could levy no taxes on the inhabitants in aid of the enterprise, and could, therefore, issue no bonds, though a special act of the legislature had ratified the vote of the town, and they granted the injunction as prayed for.

Shortly after the disastrous fire in Boston, in 1872, which laid an important part of that city in ashes, the governor of the State convened the legislative body of Massachusetts, called the general court, for the express purpose of affording some relief to the city and its people from the sufferings consequent on this great calamity. A statute was passed, among others, which authorized the city to issue its bonds to an amount not exceeding $20,000,000, which bonds were to be loaned, under proper guards for securing the city from loss, to the owners of the ground whose buildings had been destroyed by fire, to aid them in rebuilding.

In the case of Lowell v. The City of Boston, in the Supreme Judicial Court of Massachusetts, the validity of this act was considered. We have been furnished a copy of the opinion, though it is not yet reported in the regular series of that court. The American Law Review for July, 1873, says that the question was elaborately and ably argued. The court, in an able and exhaustive opinion, decided that the law was unconstitutional, as giving a right to tax for other than a public purpose.

The same court had previously decided, in the case of Jenkins v. Anderson, 103 Mass. 74, that a statute authorizing the town authorities to aid by taxation a school established by the will of a citizen, and governed by trustees selected by the will, was void, because the school was not under the control of the town officers, and was not, therefore, a public purpose for which taxes could be levied on the inhabitants.

The same principle precisely was decided by the State court of Wisconsin, in the case of Curtis v. Whipple, 24 Wis. 350. In that case a special statute which authorized the town to aid the Jefferson Liberal Institute was declared void, because, though a school of learning, it was a private enterprise not under the control of the town authorities. In the subsequent case of Whiting v. Fond du Lac, already cited, the principle is fully considered and reaffirmed.

These cases are clearly in point, and they assert a principle which meets our cordial approval.

We do not attach any importance to the fact that the town authorities paid one installment of interest on these bonds. Such a payment works no estoppel. If the legislature was without power to authorize the issue of these bonds, and its statute attempting to confer such authority is void, the mere payment of interest, which was equally unauthorized, cannot create of itself a power to levy taxes, resting on other foundation than the fact that they have once been illegally levied for that purpose.

The act of March 2, 1872, concerning internal improvements, can give no assistance to these bonds. If we could hold that the corporation for manufacturing wrought-iron bridges was within the meaning of the statute, which seems very difficult to do, it would still be liable to the objection that money raised to assist the company was not for a public purpose, as we have already demonstrated.

The judgment of the Circuit Court is affirmed.
Mr. Justice CLIFFORD delivered a dissenting opinion.


Amendments: powers of constitutional conventions.The bill of rights embraces but three recognized modes by which the people of the State can give their consent to altering an existing constitution: 1. The mode provided in the constitution. 2. A law raising a body for revision and giving it the powers of the people. 3. Revolution. The act of April 11, 1872, authorized the election of delegates, and gave them power to propose a new constitution or amendments, and authorized one-third of the members of the convention to require a separate vote on any amendment; it required the convention to submit the amendments to the voters at such time "and in such manner as the convention shall prescribe," and that the election to decide upon the amendments should "be conducted as the general elections now are." By the election laws, the election in Philadelphia was to be conducted by inspectors, etc. The convention, by an ordinance, appointed persons named, to have direction of the election, to fill vacancies, to appoint judges and inspectors, to make report of their action to the president of the convention, etc. Held, that the ordinance being contrary to the act of 1872, was void. The power of the convention to act for the people was derived from the act of 1872, and they had no other authority. Wells v. Bain, p. 39.


Chose in action.--Trough effected a life insurance, being solvent-in consideration of $1 and love and affection for his children, he executed under seal an assignment of the policy to Hicks in trust for them; put the policy and assignment into an envelope, addressed "John W. Hicks, Plumber, 2d st., etc.Please send this to him at my death, H. Trough," and placed the envelope in a safe of his own firm. He paid the premiums till his death, seven years after the assignment; but never communicated the transaction to Hicks, who knew nothing of it till after his death. Held, that the assignment was invalid for want of delivery, and the proceeds belonged to Trough's estate. A gift of a chose in action or chattel cannot be made by words in futuro or words in præsenti unaccompanied by delivery. Trough's Estate, p. 115.

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was injured. Held, that whether he had been guilty of negligence was for the jury. Crissey v. Hestonville, etc., Railway Co., p. 83.

2. Duty of carrier of passengers. It is the duty of a railway company to cause its cars to come to a full stop for passengers to get off. Ib.


1. Indorsee after maturity.-When a note passes after maturity, it is dishonored paper, and the indorsee takes it subject to equities connected with the note, but not to set-off generally. In a suit by an indorsee against the maker of a note passed after maturity, held, that the fact that the note was made with the understanding that it was to be discounted for the payee and taken up by him, and the proceeds paid in discharge of a debt due to the maker; that the proceeds were so paid, that the payee took it up and retained it, and passed it to plaintiff in consideration of a loan made by her to him, would be a defense to the suit. Long v. Rhaun, p. 128.

2. Extension of time: liability of indorser. — The holder of a note agreed, in writing, with the drawers upon a consideration to give them time, with the proviso "that no delay of demand shall interfere with any claim I may have upon the indorsers of the said note." Held, that indorsers were not discharged. The indorser not being a party to the agreement, he could pay the note and sue the drawer. The extension of time to the drawer, so that the rights of the indorser are preserved, will not discharge him. Hagey v. Hill, p. 108.


Title to estate: set-off.- A receiver has no legal title to the assets of the estate, and cannot maintain trover for them without leave of the court, except after they have actually passed into his possession. By leave of the court, a receiver of a firm, which was lessee, sold goods on the premises to the landlord. Held, that in an action for the price by the receiver, the landlord could not set off rent due him. Singerly v. Fox, p. 112.


At a recent meeting of the New York Neurological Society a paper was read by Dr. A. E. MacDonald on "The Practical Working of the New Lunacy Statutes," which was followed by a long discussion in which Mr. Clark Bell, president of the Medico-Legal Society, of New York, Dr. John Ordronaux, State commissioner in lunacy, and others took part. From the report of the proceedings published in the Psychological and Medico-Legal Journal for March we make the following extracts. Mr. Bell said: "The substantial innovation upon the previous system, in regard to the rights of persons charged with crime, when the defense of insanity is interposed as a general traverse or as a defense, is contained in sections 30 and 31 of article 2, chapter 446, Laws of 1874. * Section 30 provides that in such cases, when the defense of insanity is desired to be interposed, it shall be done at the time of the arraignment, and provides that such plea shall not be received or entertained by the court at any other stage of the proceeding. * * It is unquestionably certain that the severest criticism and conflict in the courts must ensue upon the true construction of this section. It is a source of regret that it was not drawn more carefully, or perhaps I should say, more exactly. I

* *

It is generally believed in the legal profession that it will be claimed that the defense of insanity can now no longer be pleaded as a defense to the indictment. That the question of the sanity or insanity of the accused cannot, as heretofore, since the passage of this statute, be submitted to the jury who tries the accused upon the indictment, and whose verdict is guilty or not guilty.

"While the section does not in express terms forbid the urging of this defense, and while it on the other the proper time, it is still the fair object and purpose of hand directly recognizes it as a proper plea if made at the act, doubtless, to take away from our important criminal trials this question of insanity, except upon these preliminary inquiries before a commission or a judge, or a special jury, as previously arranged. I am not aware that at the present time there has been any judicial construction put upon section 30, as to whether it takes away from the accused his right of such defense, and passing the question of whether it is a violation of the organic law, within the principle laid down by the Court of Appeals in the case of Cancemi v. People, 18 N. Y. 128, I can conceive of cases where grave doubts must arise as to the true intent and meaning of this part of the statute.

"Suppose the case of a person really insane, but not apparently so, a case so obscure as not to be apparent at sight, or without careful and intelligent examination, and such person is charged with crime, and upon arraignment, with or without counsel, makes no plea of insanity. If with counsel, suppose them to be ignorant of the fact of the actual insanity, and, of course, if without counsel and really insane, he cannot be considered to have waived or lost rights by neglect to plead.


Suppose we come down to the trial of the indictment of this person on a general plea of not guilty, and then the defense show beyond all reasonable doubt the insanity of the accused. * **The remaining doubt lies behind all these considerations. Is the re

port of a commission in a case arising under section 30, and the finding of the court thereon that the prisoner is sane, conclusive and final upon the trial of the indictment?

"If the plea was interposed properly on arraignment, and the court, with the report of the commission on trial, finds the accused sane, can he still go to the jury with this defense, on the plea of not guilty, merely on the trial of the indictment itself?

"And does not section 30, with its provisions as above stated, take away, in the case of a person really insane, that defense if it is neglected to be plead on the arraignment!"

Dr. Ordronaux, in speaking of section 30, said: "The need of some such provision in procedure had long been felt, and the end which it contemplated was both humane and economic. If it was open to technical ojections, when sought to be applied too rigidly, it was in this respect nowise different from many other statutes whose construction is permitted to be varied when wrong might follow their rigid enforcement. But, in any event, no application of this statute could wrong the weaker party. It was to protect the legitimately insane, and to save the county the needless expense of one or more trials to determine this fact, that this section was drawn. In drafting it he was not unaware of the principle which entitled the party, if found sane, still to demand a trial by jury, since this was his right before. Nor could the people be debarred

the privilege of traversing the issue of insanity, and of subsequently demanding a trial by jury; but, practically, the interests of the people only demanded the protection of society against the individual who had committed a crime, and if under this provision the insane man, whether declared to be so by a commission costing little, or a jury trial costing much, must be committed to an asylum, it was plainly for the economic interests of the county to ascertain if he was so by the cheapest means in its power. Already four persons under indictment had been disposed of in this manner, and to the satisfaction of judges, counsel and district attorneys, and at a cost of one-tenth what their trials would have amounted to. He knew the law was open to constitutional objections, if by its language it was interpreted to deny the trial by jury to either the defendant or the people; but the cases to which it applied were those of such palpable and unmistakable insanity that it was hardly to be conceived possible that either the defendant or the people would appeal from the verdict of a commission, when the end in either case would be similar, so far as dooming the insane man to commitment in an asylum."



Undisclosed foreign principal: authority of English merchant when buying goods on account of foreign constituents: "purchases" to be made on "joint account" of English and foreign firms.-H. F. & Co. were merchants in London, and defendant was a partner in the firm of H. B. & Co., carrying on business at Rangoon. Goods were supplied by plaintiff to H. F. & Co., on their order, given in consequence of an arrangement between the two firms, as disclosed in letters, that H. F. & Co. should "purchase" and send out goods on "the joint account" of the two firms, two per cent to be charged on the invoice by the London firm, and five per cent by the Rangoon firm, including guarantee. Plaintiff had no knowledge of defendant, or that the Rangoon firm were in any way interested in the transaction, until after the goods were supplied. Held (affirming the judgment of the Queen's Bench), that defendant was not, as an undisclosed principal, a party to the contract under which the goods were supplied by plaintiff; for that, on the true construction of the correspondence, the Rangoon firm did not give authority to the London firm to establish privity of contract and pledge their credit with the English suppliers of the goods; inasmuch as the presumption that foreign constituents do not give the English commission merchant any authority to pledge their credit to those from whom the commission merchant buys on their account, applies to such a case. Hutton v. Bulloch, Law Rep., 9 Q. B. (Ex. Ch.) 572.

APPROPRIATION OF PAYMENT. Secured debts: accounts rendered: liability of surety.The presumption that, where a variety of transactions are included in one general account, the items of credit are to be appropriated to the items of debit in order of date in the absence of other appropriation, may be rebutted by circumstances of the case showing that such could not have been the intention of the parties. The plaintiffs, a discount company, were in the habit of discounting bills for S. In consideration that the plaintiffs would advance money to a certain amount to S., on the deposit of a lease of S.'s premises, the de

fendant guaranteed any part of the money so advanced that might remain due after the realization of the leasehold security, the guarantee to last for a period not exceeding two years. Advances were made to S. by the plaintiffs in accordance with the guarantee, and a great number of other transactions by way of further advance upon the discount of bills by the plaintiffs for S. took place in the usual course of business between them. Within two years from the date of the guarantee, S. failed, owing to the plaintiffs an amount exceeding the sum guaranteed. A long debtor and creditor account was kept by the plaintiffs of their transactions with S. during such time, including the advances made under the guarantee. The aggregate of the items on both sides of the account very largely exceeded the amount of the sum guaranteed. In this account, the practice was to credit S. with the amount of the bills discounted, less discount and commission, and debit him with the amount of the bills if they were dishonored. Many of the bills discounted were renewed at maturity, and the same system of crediting and debiting applied to the renewals. The account was balanced on several occasions before S. failed, and showed balances against S. of much less amount than the sums advanced under the guarantee, but these balances were arrived at by crediting S. with the amount of outstanding bills, many of which were not paid at maturity, and were included in the ultimate balance against S. Bills were discounted with the plaintiffs by S. to cover advances made under the guarantee, and were, from time to time, renewed, but never were paid. Bills, discounted by S. with the plaintiffs after the advances under the guarantee, had been paid to an amount exceeding the sum guaranteed; but it did not appear that in point of fact the balance really due from S. to the plaintiffs after the date of the guarantee was ever less than the sum guaranteed. In an action on the guarantee to recover the moneys advanced under it, held, that, under the circumstances of the case, it could not have been the intention of the plaintiffs and S., by the mode in which the account between them was kept, that the advance under the guarantee should be considered as satisfied by the items of credit therein, and, consequently, that the action was maintainable. Henniker v. Wigg, 4 Q. B. 792, followed. The City Discount Company, Limited, v. McLean, Law Rep., 9 C. P. (Ex. Ch.) 692.


Fixed termini: definite route: conveyance of a single customer's goods: barge-owner.- The defendant was a barge-owner, and let out his vessels for the conveyance of goods to any customers who applied to him. Each voyage was made under a separate agreement, and a barge was not let to more than one person for the same voyage. The defendant did not ply between any fixed termini, but the customer fixed in each particular case the points of arrival and departure. In an action against the defendant by the plaintiffs for not safely and securely carrying certain goods, held, affirming the judgment of the court below, that the defendant in exercising this employment had incurred the liability of a common carrier, and was liable, though the goods were lost without negligence on his part. By Brett, J. The defendant was not a common carrier nor liable as such, but was liable as a ship-owner carrying goods for hire, upon the custom applicable to him as such. The Liver Alka'i Company v. Johnson, Law Rep., 9 Ex. (Ex. Ch.) 338.



Excavations.-This action was brought for a perpetual injunction, restraining the defendant from so excavating and digging on certain lands on the bank of the Hudson river, in the town of Cornwall, Orange county, as to cause the plaintiff's adjoining lands to break away or slide down, and to have an account taken of damages already done the plaintiff. It appeared that the defendant sold and conveyed to the plaintiff's grantor a certain piece of land, reserving "the right, at all times hereafter, so long as the clay and sand may last, or be used for brick-making purposes," to enter upon a certain specified portion thereof, and "to dig and take therefrom the clay and sand that may be found thereon fit for brick-making." In digging and removing the clay and sand within the boundaries of the portion described, some of the adjoining land fell into the excavations. Held (Johnson, C., dissenting), that the clause was a reservation not an exception, and that defendant had a right to exercise the rights reserved anywhere within the boundaries of the parcel described; that the doctrine of lateral support, incident to and affecting adjoining lands, owned by different proprietors, did not apply; and that plaintiff's action could not be maintained. The authorities as to adjacent and subjacent support collated in the dissenting opinion by Johnson, C. Ryckman v. Gillis. Opinions by Lott, Ch. C., and Johnson, C.


Lien on boats for repairs.-This action was brought upon a bond, executed by the defendants, given to discharge a canal-boat from a warrant of attachment. It appeared that plaintiff, at the request of one K., repaired the canal-boat in question, at Fort Edward, N. Y., under an agreement with K., the owner, that he should be paid $50 as soon as the boat was repaired, and that K. could go to Whitehall and remit that amount to plaintiff; the balance of the indebtedness K. agreed to pay in installments, from time to time, during two months after the completion of the repairs. K. failed to pay for said repairs, and, within twelve days after the departure of the boat, plaintiff duly made and filed specifications of lien thereon. A warrant of attachment was duly issued, and said boat seized by virtue thereof, and thereupon the bond in suit was executed and delivered. Held, that the lien, given by the "act to provide for the collection of demands against ships and vessels" (chap. 482, Laws of 1862), could not be impaired or affected by the fact that plaintiff made the repairs upon the personal credit of K., unless by express agreement to that effect, and the fact that time was given for payment did not prevent the attaching of the lien, or affect its validity, as such time did not extend beyond that specified in the act for the existence of the lien. (§ 2.) By giving time for payment, plaintiff only postponed his power to enforce the lien until the debt became due. It was not necessary that plaintiff should have possession of the boat in order to preserve his lien, and his consent to its departure was no waiver of his lien. (Veltman v. Thompson, 3 N. Y. 438, distinguished.) Mott v. Lansing et al. Opinions by Earl and Gray, CC.


Liability of bank on acceptance of check.―This action was brought to recover the amount of a check. It appeared that in February, 1866, one B. drew his check,


dated March 1, 1866, upon defendant, doing business at A. There was written on the face of the check, Accepted, A. J. Chester, A. Cash." C., who wrote it, had been appointed by defendant assistant-cashier, for the special purpose of signing circulating notes. He wrote it without authority and in violation of duty. The check was put in circulation in February, and was cashed by plaintiff, in New York, on March 2, 1866, in the morning, he not having notice of any defects, save what appeared on its face. Held (Lott, Ch. C., and Earl, C., dissenting), that in the absence of proof of prior practice or usage, defendant could not be bound by the acceptance, even in favor of a bona fide holder; but that plaintiff could not be held to stand in that capacity, as the acceptance was not the common form used by banks to indicate funds on deposit to the amount of a check, as the acceptance appeared to be by a subordinate officer, whose authority must be shown, or facts estopping defendant from denying it, and as the check, if accepted at its date, could not, as the evidence showed, have reached New York in the ordinary course of the mails at the time it was cashed, which facts were enough to put plaintiff upon inquiry. Pope v. Bank of Albion. Opinion by Reynolds, C.


Liability of consignee for freight.-This action was brought to recover a balance alleged to be due for freight upon a cargo of wheat carried on plaintiff's schooner, from Milwaukie to Oswego. The bill of lading stated that the property was "to be delivered, in good order and condition, as addressed on the margin, or his or their assignees or consignees, upon paying the freight and charges as noted." In the margin of the bill was the following entry: "Acct. T. L. Baker, to City Bank." On the arrival of the wheat, defendant's cashier, by written order, directed that it should be delivered at an elevator, subject to its order, saying that the proprietors would pay freight. The proprietors of the elevator gave receipts for the wheat, paid part of the freight and gave their check on New York for the balance, which was sent to New York, presented for payment and payment refused, and the drawers duly notified. Defendant acted in the matter as agent of a Milwaukie bank; but this fact did not appear in the bill of lading and was not known to plaintiffs. Held, that defendant, as consignee, upon accepting the wheat (which was done by the order), and delivery at the elevator, became liable for the freight; that it was not discharged from liability by the order or by the assurance that the proprietors of the elevator would pay, and as there was no agreement that the check should be received as payment, and no laches to the damage of defendant, the taking of the check did not discharge defendant from liability. Davidson et al. v. City Bank. Opinion by Earl, C.


Unliquidated damages. —This action was brought by plaintiff, as assignee, to recover the balance of an account for coal sold to defendants by his assignors at stipulated prices. Defendants' answer averred in substance that the plaintiff's assignors, prior to the assignment, sold and agreed to deliver to them 400 tons of coal at $6 per ton; that said assignors failed to perform said contract; that prior to the date of the assignment the coal rose in value to $7.50 per ton, and that before then defendants had suffered damage in the sum of $600, "which amount they will off-set

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