1. Where B. contracted with a Railroad Company, in writing, to build certain bridges on its road, at a certain sum per foot, to be paid, one-fourth in cash, and three-fourths in the stock of the road at par value, and the contract was entirely silent as to the time or place of payment: Held that, looking to the contract alone, B. could not call for payment, either of the cash or stock, until a complete performance of the contract on his part, or, at any rate, before, or oftener than a bridge was fully completed. Nor could be then sue and recover for the stock without proof of a special request and of a refusal to deliver it. For, if no time be fixed in the contract, or by other agreement of the parties, either express or implied, for the doing of the thing, a request is essential to the cause of action. Boody v. Rutland & Burlington R. R. Co.,

25

2. The Company, after the commencement of a suit by B. on the contract, having mortgaged its road, to secure the payment of debts due from it to third persons: Held, that the act of mortgaging the road would not work or amount to a disability to perform the contract, or make the defendants liable to pay money in lieu of the stock. id.

3. Where it appeared that it was the custom of the Company to make monthly payments to B. and its other contractors, for work done on its road, upon estimates made by the engineer at the end of each month: Held, that this must be considered the rule of payment under the contract, established by mutual consent, and binding upon the parties, so as to make a special request for the stock unnecessary. id.

4. Held, also, that, under the circumstances of this case, no tender or offer of the stock having been made by the Company, B. was entitled to recover its value. id.

5. After the making of the original contract, B. proposed to put in iron bearings, instead of wood, for so much per foot of the bridges, varying, like the prices in the original contract, according to the different spans in the bridges, "in addition," as B. said, "to the former proposal;" but nothing was said as to the manner of paying the additional expense: Held, that it might be well inferred, that the mode of paying for the iron bearings was to be the same as that provided for building the bridges. id.

6. Where A. contracted, at New York, to have a vessel at Panama at a certain time, to carry passengers to San Francisco, and received their fare in advance, but the vessel, being disabled, by stress of weather, on her voyage from New York to Panama, did not arrive there by the time specified: Held, that this was no excuse for the non-fulfilment of the contract, and that A. was liable to return the passage-money. Cobb v. Howard,

ALIEN.

See CIRCUIT COURTS, 2, 3.
JURISDICTION, 1.

PARTIES TO ACTIONS, 3.
PRACTICE, 7.

AMENDMENT.

See PATENTS, 67.

APPEAL.

See ADMIRALTY, 1 to 4. COSTS, 1 to 5, 8, 9. DUTIES, 91, 92. PRACTICE, 10, 11.

APPRAISAL

See DUTIES, 4, 5, 8 to 12, 20, 23, 25, 28, 29, 31, 39 to 41, 48 to 51, 58, 60, 62, 65 to 69, 72, 82 to 86, 89 to 93, 95 to 99.

APPRAISER.

See DUTIES, 4, 5, 8 to 12, 20, 23, 25, 28, 29, 31, 39 to 41, 48 to 51, 58, 60, 62, 65 to 69, 72, 82 to 86, 89 to 93, 95 to 99.

ARBITRATION.

See CHARTER-PArty, 7.

ASSIGNMENT.

See ADMIRALTY, 10, 11.
PATENTS, 6, 11 to 15, 20 to 32.

ASSUMPSIT.

1. The case of Astley v. Reynolds, (2 Strange, 915), which decides, that where money is extorted by duress of goods, assumpsit will lie for it, has not been overruled by the Courts of New York, and is followed in England. Tutt v. Ide, 249

2. The general rule is, that an action for money had and received lies, whenever money has been received

id.

3. The cases examined, as to recovering back money paid on compulsion. id. 4. Where A., a common carrier, agreed with B. to convey goods, at a specified rate for freight, and then refused, at the place of destination, to deliver the goods, except on payment of freight at a higher rate, and B., in order to obtain possession of the goods, paid to A. the sum demanded: Held, that the payment was not voluntary, and that the excess beyond the agreed freight might be recovered back. id.

ATTACHMENT.

1. The practice stated as to issuing an attachment against a witness for his refusal to obey a subpœna issued by this Court, requiring his appearance before a United States Commissioner, to be examined, de bene esse, as a witness in a suit pending in another District, under § 30 of the Act of September 24th, 1789, (1 U. S. Stat. at Large, 88), on the ground that he resides more than one hundred miles from the place of trial of such suit. Ex parte Judson,

89

3. On a motion for an attachment against a witness, for refusing to answer a question put to him on his examination de bene esse, before a United States Commissioner, on a subpæna duces tecum, as a witness in a suit pending in another District, under

30 of the Act of September 24th, 1789, (1 U. S. Stat. at Large, 8), it must be shown that the Commissioner has jurisdiction in the matter, and that the witness resides more than one hundred miles from the place of trial of the action, and that the matter in regard to which the witness refuses to testify is material and relevant to the issue in the case. Ex parte Peck,

113

5.

for the attendance of the witness before the Commissioner was issued without any preliminary evidence having been given before him showing the case to be one in which a de bene esse examination could be lawfully had, the want of such proof will be a vital objection to the issuing of an attachment. id.

7. Where a witness, on his examination before a Commissioner of this Court, de bene esse, under § 30 of the Judiciary Act of September 24th, 1789, (1 U. S. Stat. at Large, 88, 89), in a suit pending elsewhere, refused to answer a question put to him, and, on a motion to this Court for an attachment against the witness for contempt, nothing appeared but the fact of such refusal, and the materiality of the evidence sought was not shown: Held, that the attachment could not be granted. id.

8. To an action brought by A., to recover for goods sold, B. pleaded that, before the bringing of the action, B. had sued A. in a State Court of New York, to recover money, and, in that suit, had attached, under the State law, the debt sued for by A.; that A. had removed into this Court the suit in the State Court; that it was still pending; and that the attachment still held the debt: Held, on demurrer to the plea, that it was bad. The New England Screw Co. v. Bliven, 240

4. Where a bill of lading acknowledged the receipt, in good order and condition, of casks containing bristles, which were covered with matting, and well secured by cords around the body and ends, and engaged to deliver them in like good order and condition to the consignees, and also contained the clause, "weight and contents unknown:" Held, that there was no admission by the master, in the bill of lading, as to the condition of the goods, beyond that visible to the eye, or apparent from handling the casks or their outside protection.

id.

5. When a question arises as to the condition of the contents of such casks, in a case where such a clause is found in the bill of lading, the burden rests on the shipper, in the first instance, to prove the condition of the goods at the time of shipment; and, in the absence of such proof, the carrier is not properly chargeable for the condition of such contents. id.

6. If the external covering of the goods is damaged when they are delivered, so as to account for an injury to the contents, the evidence may be dispensed with, the admission in the bill of lading being prima facie sufficient.

See CARRIER, 2.

SHIPPING, 1, 22, 30.

BONA FIDE PURCHASER. See FRAUD.

BOND.

See PUBLIC OFFICER.

BROKER.

See SHIPPING, 26, 27.

C

CALIFORNIA.

See COLLECTOR, 7 to 23.

CARRIER.

id.

delivery, that it was not enough for the shipper to show the non-delivery to L., but that he must also give some evidence of the non-delivery to Z. id.

3. Where A., at Oswego, shipped flour to B. at New York, through the canal, subject to charges for freight through Lake Ontario, and chargeable with specified freight from Oswego to New York, and wrote on the bill of lading, "Pay charges to C. on safe delivery," and D., a canal forwarder at Oswego, receipted the bill of lading thus, "Received in good order for C.," and C., a forwarder from Albany to New York, received the flour at Albany in apparent good order, and paid the charges for freight through Lake Ontario, and the freight from Oswego to Albany, and carried the flour to New York, and delivered it to B., and it appeared that the flour had been damaged by wet before it arrived at Albany: Held, that, as C. had no interest in, or connection with either the lake or the canal navigation, and merely received the flour at Albany and transported it to New York, he was not answerable for either the carrier on the lake or on the canal, and was not responsible for the damage to the flour. Monteith v. Kirkpatrick,

279

Griswold v. Lawrence, (1 Blatchf. C. C. R., 346.) Griswold v. Maxwell, 145

8. Grant v. Raymond, (6 Pet., 218.) id.

9.

10. Russell v. Cowley, (Webster's Patent Cases, 467.) McCormick v. Seymonr,

209

11. Lapsley v. The United States Ins. Co., (4 Binney, 502.) Griswold v. The Union Mutual Ins. Co., 231

12.

Astley v. Reynolds, (2 Strange, 915.) Tutt v. Ide, 249

13. Roller v. Maxwell, (ante, p. 142.) McCall v. Lawrence,

360