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In Knapp v. Knapp, 10 N. Y. 276, evidence of such evidence. Thus they have been admitted as in Doe v. declarations was admitted without objection. So far Palmer, 16 Q. B. 747, to negative the presumption arisas this case can be regarded as an authority, it is in ing from interlineations having been made subsefavor of admitting this class of declarations. It is held quently to the execution of the will. Iu like manner in Connecticut that the contents of a lost will may be the declarations of a testator have been admitted to proved by parol. Matter of Johnson's Will, 40 Conn. show the continuing existence of the will at the time 587. In Pennsylvania the declarations of the testator they were made, and so to rubut the presumption of as to the conteats of his will are admitted in evidence. the will having been destroyed animo revocandi." Jones v. Murphy, 8 W. & S. 275. So in Massachusetts, "The question before us is whether the statements Davis v. Sigourney, 8 Metc. 487, followed iu 120 Mass. made by a testator as to the provisions of his will can 277. So in South Carolina contents may be proved by

be received as evidence of the contents of a will known parol. Legare v. Ashe, 1 Bay. 461. So in Missouri, to have existed, but which at his death is no longer Dickey v. Mulechi, 6 Mo. 177. So in the United States forthcoming. That morally such statements and decSupreme Court Gaines v. New Orleans, 6 Wall. 642. larations are entitled, whero no doubt exists of their So in Eugland see the leading case of Sugden v. St. sincerity, to the greatest weight, cannot be denied,and Leonarıls, 34 L. T. (N. S.) 372, also in full, Law Rep. I am at a loss to see why, when such evidence is held Prob. Div. 1875-6, 154, cited in 2 Greenl. Ev., $ 688 a, to be admissible for the two purposes just referred to, note 3.

it should not be equally receivable as proving the conIn this case the testator had executed a will witb tents of the will. If the exception to the general rule several (7) codicils. These papers were locked up by of law which excludes bearsay evidence is admitted on him in a box which was kept in his daughter's room, account of the exceptional position of a testator, for he retaining the key. After his death the will was not one purpose, why should it not be for another, where found in the box, but several codicils were found there. there is an equal degree of knowledge, and an equal His daughter, who had acted as his amanuensis, aud absence of motive to speak untruly ?” “I entertain who had been in his confidence in his business trans no doubt that prior instructions, or a draft authentiactions, and who had read the will several times, wrote cated by the testator, or verbal declarations of what out tho contents of the will from memory, and with he was about to do, though of course not conclusive out consulting any documents, and the correctness of evidence, are yet legally admissible as secondary eviher memory was attested by the codicils and other dence of tho contents of a lost will.” “The question papers in the handwriting of the deceased found in the here is simply one as to the admissibility of secondary box. There was evidence that the testator had made evidence, and has to be äetermined by the rules of evideclarations of his testamentary intentions within a dence alone. I am decidedly of the opinion that all few months of his death, which were in accordance statements or declarations, written or oral, made by a with the alleged contents of the will, and that he en testator prior to the execution of his will, are admissijoyed all his mental faculties until his death. The ble as evidence of its contents." writing made by the daughter was admittod as the “There can be no difference in principle as to the will of the deceased. There was also evidence of doc- admissibility of declarations made subsequently to the larations made by the testator as to the contents of his execution of the will. The position of the testator is will, made after the will was executed, and at various tho same, as respects both peculiar knowledge and motimes and to different porsons, up to the time of his tive for speaking the truth. In the case of its loss, his death. The following propositions, among others, statements afford morally the best evidence of its couwore decided :

tents. Yet we are asked to exclude their operation as 1. The contents of a lost will, like that of any showing the contents, though it is ackuowledged that other lost instrument, may bo proved by secondary such evidonce is available to rebut the presumption of evidence.

revocation and to establish what is called adhereuce to 2. Declarations witten or oral made by a testator, the will. The adoption of such a rule would moreover both before and after the execution of his will, aro in lead to a very strange anowaly. The great majority the event of its loss admissible as secondary evidenco of statements made by a testator for the purpose of of its contents.

proving adherence are in fact statements as to the On the subject of the admissibility of the declara contents of the will. But such statements of the contions of testator, Lord Chief Justico Cockburn, in tents of the will, assumed to be truthful, having been his opinion, says (p. 224 et seq.): “The question is admitted and acted upon for the purpose of showing whether tho declarations of the testator can be re that so far as the testator was concerned the will was ceived as secondary evidenco of the contents of the still alive, how is it possible to shut out the evidence lost will. No doubt, generally speaking, where second where the contents como directly in question? It apary evidence is admissible, if oral, it must be given on pears to me, that if as an exception to the general rule, oath, if documentary, it must bo verified on oath; | tho evidence is admissible for one purpose, it must be nevertheless the declarations of deceased persons are equally so for the other. How can wo use evidence of in several instances admitied as exceptions to the the contents of a will for an ulterior purpose, and shut general rule, where such persons havo had peculiar out the same ovidence when the contents of the will means of knowledge, and may be supposed to be with are themselves immediately in question ?” “I am out motive to speak otherwiso than according to the therefore of the opinion that the various statements of truth. It is obvious that a man who has made his will Lord St. Leonards, whether before or after the stands pre-eminently in that position. Ho must be execution of his will, aro admissible to prove its contaken to know tho contents of the instrument he has tents.'' executed. If he speaks of its provisions, he can have Iu Morris v. Swancy, 7 IIeisk. (Tenn.) 591 (1872), a no motive in misrepresenting them, except in the raro lost will was established upon secondary evidence instances in which a testator may have the intention alone. The will was alleged to have been made in 1845. of misleading by his statements respecting his will. Both the alleged subscribing witnesses were dead. No Generally speaking, statements of this kind aro hon copy of tho will was produced. No witness was sworn estly made, and this class of ovidenco may be put on who ever read tho will. The proof of the contents of the same footing as declarations of niombers of a fam- the will rested alone upon the testimony of witnesses ily in matters of pedigree.” “It is upon this princi- who repeated its contents from having heard it read ple, I presume, that the declarations of a deceased tes by others, tho witnesses themselves being illiterate. tator have in more than ono instanco beon admitted in This proof was corroborated by the declarations of the

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testator and other circumstances. The chancellor Also held, that knowledge of the removal by the company was
charged the jury that the complainants were required not a waiver of the policy as to location, nor was the com-
to establish their case by the best evidence in exist pauy called upon to cancel the policy in view of such
ence; that however the law did vot require an impos knowledge to avoid liability.
sibility, and that if the will was lost, and the subscrib-

Tarsney & Meadock, for plaintiff and appellant.
ing witnesses dead, tho will might be proven by such
evidence as would clearly and fully satisfy their minds

Hanchett & Slark, for defendant. of its execution and of its contents. The jury ren COOLEY, C. J. Defendant in January, 1883, issued dered a verdict for the complainant establishing the to plaintiff a policy whereby he was insured to the will, and the verdict was sustained on appeal, the court amount of $2,000 on his household goods, furniture, holding that the testimony as to the contents of the clothing, etc., "all contained in his two-story frame will was proper.

dwelling-house and additions, occupied as a resiThe admissibility of this class of declarations must dence,” in Saginaw city, and to the further amount of now be considered to be established by the highest $300 on his horse, buggies, hay, etc., and barn tools. authority, and it is founded on sound reason.

A fire occurred November 13, 1883, which so far inIn proving the contents of a will, the gradations in jured the house so as to render it uninhabitable. At the evidence may be stated as follows:

the time of this fire inuch of the household goods cov1. The best evidence is the original will itself.

ered by the policy was removed to the barn and stored 2. In case of its loss, an authenticated copy is the best there. The parties adjusted the loss by this siro, and evidence.

no question now arises upon it. December 6, 1883, the 3. Witnesses may havo read the original.

barn was burned, and with it the household goods 4. Wituesses may have heard it read.

stored in it. Defendant adjusted and paid the loss by 5. The testator may have made declarations as to its this fire so far as concerned the property commonly contents.

kept in a barn, but refused to pay any loss on houseEither of these methods is competent, according hold goods. For that loss this suit is instituted. The to circumstances, to establish the contents of a Circuit judge hold thero could be no recovery, and dewill.

fendant had judgment. It is claimed for the plaintiff Tho provisions of the Code (sec 1865), which require that the barn in this case may be considered a part of that the contents of a lost or destroyed will must be the dwelling-house, it being within the curtilage. But clearly and distinctly proved by at least two credible there is no ground for this claim. This is a case of conwitnesses before it can be admitted to probate, must tract, and the question is what contract the parties be construed liberally in the furtherance of justice, havo made. For some purposes the law regards a barn and for the prevention of fraud; and the spirit of the within the curtilago as part of the dwelling-house; Code is complied with by holding that it applies only but it is not popularly so regarded, and it must be very to those provisions of tho will which affect the disposi- rare indeed that in a contract it is treated as such. It tion of thes testator's property, and which are of the certainly was not so treated in this case. There were substance of the will. Early v. Early, 5 Redf. S. 376; two classes of insured property; and the class to which Hook v. Pratt, 8 Hun, 102-9. But a lost or destroyed tho goods in question belonged was insured as situated will cannot be established on the testimony of two

in a described building, which the policy designates as witnesses, if they differ materially either as to the the dwellirg-house; and the description makes it very beneficiaries or the amount of the bequests. Sheridan clear that no other building was understood to be inv. Houghton, 6 Abb. N. (. 231. So in mc Vally v. cluded. The parties certainly did not understand that Brown, 5 Redf. 372, where from all the evidence the in insuring the household goods, etc., in the dwellingcourt could only surnise the probable effect of the house, and also horse, buggies, etc., and barn tools, will, no two witnesses pretending to give the whole, that the horse, buggies and barn tools were in the probate was refused.

dwelling-house. But one of the conditions of the To warraut giving parol evidence of a will not shown policy would make the meaning very plain if it could to be destroyed, it must be first proved that diligent otherwise have beon considered in doubt. The assured search has been made, by or at the request of tho party is required to “state on oath in his proofs of loss, that interested, at the place where it is most likely it would all the merchandise and personal property for which be found; as among the papers of the devisor at his claim is made was at the time of the fire contained in residence, if the will do not appear to have been do the building on premises described in said policy.” posited in any public office. The search may be proved It was plainly impossible for this plaintiff to state in by a party in the cause, who made the search, though his proofs loss that the property for the burning of he be interested, as it is merely addressed to the court, which he now claims was in “his two-story frame in order to let in secondary proof. Dun v. Brown, 4 dwelling-house and additions, occupied as a resiCow. 483.

deuce," for it was in a very different building. CHARLES Z. LINCOLN. A further claim is that defendant, knowing that

these goods were stored in the barn, and not making

any objection thereto, or cancelling the policy on that INSURANCE,"CONTAINED IYKNOWLEDGE when the loss has occurred. But this is not a case of

account, has waived tho right to take the objection - WAITER,

objection and not a question of waiver. The question

is, for what loss this defendant has undertaken to be MICHIGAN SUPREME COURT, NOVEMBER, 1884.

responsible. Now we find the contract to be that de-
fendant will be responsible for


fire of these goods while they remain in the dwellingA fire policy insured household goods, furniture, clothing, house, but not when out of it. But the defendant

etc., "all contained in his two-story frame dwelling-house, could not insist that the goods should remain in the

etc.,” and also in another clause his horse, buggies, hay; dwelling-house. Plaintiff might remove them at will etc. Much of the houschold goods was afterward removed and for any reason that might incline him to do so; to the barn and stored there at the time of the fire on ac and this being his undoubted right, there would be count of a previous fire which rendered the house unin nothing for defendant to waive in respeot to it. habitable. Held, that the policy did not cover the house Waiver implies a right to object to what is being doue, hold furniture while in the barn.

but there was no such right here. Tho defendant merely

undertook for a certain responsibility while the regular, and that judgment was entered in favor of
goods were in the house; and it was at the plaintiff's said Larrabie against said Northwestern Company in
option to have them there or elsewhere, as he pleased. said action, and defendants held said bullion by virtue
If they were lost by fire when elsewhere the loss was of said writ of attachment.
not one against which the defendant had undertaken 3. That at and prior to the shipment of the ballion
to insure him. Nor was defendant called upon to can in controversy in this case there was an express con-
cel the policy by reason of the goods being removed tract between plaintiff and the Northwestern Com.
from the building where they were insured. If the pany, that in consideration of advances to be made by
dwelling-house had been repaired, and the goods re plaintiff to said company in carrying on its mining
stored to it, the policy would again have covered them; operations, said company would ship to plaintiff its
and this, for any thing that appears to the contrary, products of bullion, which was to be credited to its ac-
may have been what both parties desired. At any count.
rate, it does not appear that the plaintiff desired the 4. That at the time said bullion was shipped said
policy cancelled; and if he bad desired it, the cancel plaintiff bad advanced to said company upon the faith
ment would have been optional with defendant. of said contract about the sum of $6,000, which stood

The cases of Hartford Ins. Co. v. Farrish, 73 Ill. 166; as a charge against said company, and is yet upliqui-
Annapolis, etc., R. Co. v. Baltimore Fire Ins. Co., 32 dated and unsettled.
Md. 37; S. (., 3 Am. Rep. 112; and Bryce v. Lorillard 5. That said bullion was in accordance with the terms
Ins. Co., 55 N. Y. 240; S. C., 14 Am. Rep. 249, support of said contract shipped, marked and consigned to
the views here expressed, and aro decisive.

said plaintiff, and placed in possession of and received The judgment must be

by Gilmer & Salisbury, common carriers of freight and

Affirmed. express matter, upon a contract at special rates, to be The other justices concurred.

paid at Helena, Montana, by plaintiff, upon receipt of [See also ✓ Am. Rep. 638; Longueville v. IT'estern As said bullion by it, at said place, said charges for freight surance Co., 51 Iowa, 553; S. ('., 33 Am. Rep. 1-16, and to be charged to the account of said company. note, 147; Lyons v. Providence Washington Ins. Co., 13 6. That said bullion was to be credited to the acR. I. 347; S. C., 43 Am. Rep. 3:2, and note, 31.-E..] count of said company upon a sale thereof by plaintiff

and that said account was a running account.

7. That after such bullion was so shipped and couBILL OF LADING TITLE, WIEV PASSES ON signed to said plaintiff, and while in possession and SHIPMENT

custody of said carriers en route to its destination, the

samo was attached at the suit of Larrabie, and levied SUPREME COURT OF MONTANA, JAN. 29, 1885. upon by his co-defendants as the officers charged with

the execution of said process, on the 31st day of May, FIRST NATIONAL BANK OF IIELENA V. MCANDREWS.* 1879, at Deer Lodge city, Montana. The transmission of a bill of lading by the consignor to tho 8. That said property was at said time of the value of

consignee is a delivery of the possession of the goods cov $3,000, and was, and still is, detained by defendered by it, and the title to the property shipped thereby ants. passes from the former to the latter. But the mere ship The bullion in question, having been “billed, shipment of goods, in pursuance of a contract between the ped, marked and cousigned” to the respondent under consignor and consignee whereby the former was to pay and by virtue of the contract mentioned in the findings the freight, and the latter, after he had sold the goods, of fact by the court, and placed in the possession of was to credit the proceeds to the account of the consignor, the common carrier, did the possession of and propdoes not vest the title to the property shipped in the con erty in the bullion thereby become vested in the resignee, in the absence of a bill of lading or notice of the

spondent, or did such possession and property remain shipment to him.

with the Northwestern Company until the bullion

had been actually received by the respondent and Lodge County. The opinion states the facts.

credited to the account of the company?

There was no bill of lading transmitted to the bank, J. C. Robinson, for appellants.

and no letter or notice informing it tŁat the bullion E. IV. & J. K. Toole, for respondent.

had been shipped. The advances by the bank bad been WADE, C. J. This was an action of claim and deliv

made prior to the shipment, and the situation was as ery in which tho plaintiff sought to recover the posses

if the shipnient had been made under a contract in

satisfaction of antecedent advances. sion of certain cases of silver bullion shipped to it by

We shall have to consider what effect the absence of the Northwestern Company at Phillipsburg, and while

a bill of lading and of notice of the shipment to the en route, seized by attachment in an action by Samuel E. Larrabio against said Northwestern Company. The

bank had upon the rights of these parties. A. bill of case was tried to the court, who made certain findings

lading is a commercial instrument, and is a written of fact, and thereon rendered a judgment in favor of

acknowledgment signed by the master of a vessel, or by plaintiff, from which, and an order overruling a motion

a common carrier, that he has received the goods for a new trial, the defendants appeal to this court.

therein described from the shipper, to be transported The facts found by the court are as follows:

on the terms therein expressed to the described place 1. Thas the bullion described in plaintiff's complaint

of destination, and there to be delivered to the conwas produced from the Northwestern Company, and

signce, or parties therein designated. Abb. Shipp. 7 was shipped by it to lIelena, consigned to plaintiff.

Am. ed. 3:23; O'Brien v. Gilchrist, 34 Me. 558; 1 Pars. 2. That the same was seized by defendants, McAn

Shipp. 186; Macbl. Shipp. 338; Emirigon Ins. 521. drews and Smith, under a writ of attachment, while

A bill of lading is a symbol of the ownership of the in transit, in an action by defendant Larrabie against goods covered by it; a representative of the goods. It the Northwestern Company, and that defendants, Mc

is regarded as so much cotton, grain, iron or other arAndrews and Smith, were at said time the sheriff

ticles of merchandise. The merchandise is very often and deputy sheriff of Doer Lodge county, Montana,

sold or pledged by the transfer of the bill of lading and that all the proceedings to obtain said writ were

which covers it. Shaw v. Railroad Co., 101 U. S. 564,

565. Hence it is held by the authorities that the trans*9.C., 5 West Coast Rep. 636.

mission of a bill of lading by the consignor to the con


signee is a delivery of the possession of the goods cov within the statute of frauds, and the action cannot be ered by it, and that thereby the title to the property maintained.” passes from the consignor to the consignee. See Hille If a bill of lading had evidenced the intent and purv. "Smith, 1 B. & P. 563; Desha V. Pope, 6 Ala. pose of the consignor in shipping the bulliou, or if this 690; Gibson v. Stevens, 8 How. 38-4; Grove v. Gilmor, intent had been evidenced by any other conclusive unid. 429; Bryans v. Nixt, 4 M. & W.7175; Anderson v. conditional act, such as a notice of the shipment to the Clark, 2 Bing. 20; Holbrook v. Wright, 24 Wend. 169; consignee, then a delivery to the carrier in pursuance Grosvenor v. Phillips, 2 Hill, 147; Sumner v. IIamlet, 12 of such bill of lading or notice would havo vested the Pick. 76; Nesmith v. Dyeing Co., 1 Curt. 130; title in the consignee. But in a caso where the conValle v. Cerre, 36 Mo. 575.

signee had never seen or accepted the property, where The transmission of a bill of lading amounts to the there was no bill of lading or notico of shipmont, the actual delivery of tho possession of the property de consignor paying freight, and having the right to rescribed in it, and is a compliance with the statute of call the goods, or to change their destination, and the frauds as to the sale and delivery of property. The agreement under which they are shipped providing contract mentioned in the findings was an executory that the property shall not be credited to the account contract, to be completed by the delivery of the bul of the consignor, antil the same has been actually relion therein described. Knight, the cashier of the ceived and soll by the consignoe, then the mero act of bank, testifies that the bullion was to be delivered to shipment would not havo the effect to vest the title in the bank at IIelena. In the absence of a bill of lading, the consignee. or a letter or notice from consignor to consignee in In the case of Ilalliday v. Hamilton, 11 Wall. 564, the forming hini of the shipment of bullion, is the fact Supreme ('ourt of the United States says: “If this that the bullion in question was “billed, shipped and were the case of a mere agreement to ship produce in marked and consigned” to the respondent, such an ap satisfaction of antecedent advances, which will not in propriation of the property to tho contract as com goneral give the factor or consignee a lien upon it for pletes a bargain and sale, and delivers the possession his general balance until he obtains actual possession thereof to the purchaser? If tho consignor had done of it, the attachment would hold the property. some conclusive, umconditional act, by which the con But the agreement in question is of a different characsignee was, or was to be, informed that the bullion tor, and rests on a different legal principle. It approshipped was to be applied on the consignor's account priates specifically 1,250 bags of corn to Hamilton & for money advanced, then undoubtedly the delivery of Dumnica, with an intention that they shall sell it to the property to the common carrier, properly marked pay tho draft drawn against it, and this appropriation and addressed, would have been a delivery to the con did not rest in intention merely, for it was exercised, signee, and an appropriation of the property to the so far as the parties in St. Louis could execute it, by contract. But the more shipment of the property the transmission of a bill of lading to Ilamilton & Dun. without notice was not such conclusive act. The ship nica. As soon as the corn was deposited with the comment did not bind the consignor. IIe did not thereby mon carrier, who was the bailee for that purpose, the lose his control over the property. Ile night have title to it and the right of property in it was changed stopped it while en route to its destination, and sent it and vested in Ilamilton & Dunnica, to whom it was to some other place or person. By the terms of the delivered. This is the effect of all the cases on the subcontract the company, the consignor, was to pay the ject.” freight, and the bullion was not to be credited to This case is a clear illustration of the rule. If there the account of the company until it had been received was a mere agreement to ship goods or produce to pay and sold by respondents. There was something to be for advances, the property shipped would not belong done besides a delivery to respondent: “Said bullion to tho consignee until actually received and possessed was to be credited to the account of the company upon by him. But if the agreement appropriates specific a sale thereof by plaintiff.” The respondent had no property to the payinent of such advances, and such right to make this credit until the sale of the bullion. appropriation is evidenced and authenticated by a bill When tho property was sold tho proceeds belonged to of lading, then the title to the property passes to the the respondent. If there was to be no credit until a consignee by a delivery thereof to the carrier. sale, what property passed until a sale had been made? In the case of Hodges v. K'imball, 49 Iowa, 577, tho There must be an acceptance as well as a delivery. facts were that in the spring of 1875 the plaintiffs and Supposo this bullion had been “billed, shipped and W. II. Valleau, at Milwaukee, in the State of Wisconmarked” at double its value, would the consignee sin, entered into a contract whereby tho plaintiffs have been bound by the valuation of the consignor? were to advance the money to said Valleau, on his Tbe carrier had no right to accept of the property for drafts (drawn on them, to purchase wheat and other the consignee; the value was to be ascertained by a produce, to be shipped by him, consigued to them at sale, and then, and not until then, had the consigneo Milwaukee, to be by them sold on the usual commisany right to make tho credit.

sions, and out of tho net proceeds thereof to reimburso In the case of Johnson v. Cuttle, 105 Mass. 419, the themselves for the advances so made; that said Valcourt says: “Acommon carrier, whether selected by leau was to forward the railway shipping receipts to the selle: or by tho buyer, to whom the goods are in plaintiffs as soon as consignments were made; that in trusted, without express instructions to do any thing pursuance of said contract Palleau, on the 10th day of but to carry and deliver them to the buyer, is no more May, 1876, shipped fire car-loads of wheat consigned to thav an agent to carry and deliver the goods and has no plaintiffs, and delivered to the Chicago, Milwaukee & implied authority to do tho acts required to constitute St. Paul Railway Co., and receipts giren therefor; an acceptanco and receipt on the part of the buyer, that on the same day, and after said shipment and and to take the case out of the statute of frauds. The consignment, said wheat was attached as the property steamboat company having no authority to receive of Valleau in the suit of Kimball & Farnsworth against and accept the goods so as to bind the buyer, and there him,and was afterward retaken upon a writ of replerin being no evidence that the buyer in person, or by any in tbis action. This contract and the attending facts authorized agent, ever had actual possession of the are, in substance and effect, the same as in the case at goods, or opportunity to see them, or ascertain whether bar. The court in deciding the case says: “Tho caso they conformed to his order, or ever exercised any must be determined upon the facts reported by the control over them by sale or otherwise, or even re referee, with the additional fact that the grain was not ceived any bill of lading of the goods, the case is bought with money furnished by the plaintiffs. From

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the facts reported it appears that the grain in question the principle of the cases reviewed in the foregoing was shipped on the 10th of May, 1876, from Cresco. | opinion.' On the same day the grain was attached at Cresco, at The rule seems to be that in order to change the title the suit of the defendants, as the property of W. H. to the property shipped and vest it in the conValleau. The shipping receipts were not forwarded to siguee, there must be a bill of lading, receipt or letter the plaintiffs until the 13th day of May, and did not of information forwarded to the consignee, or that reach them until the 15th. The advancements, on ac the advancements were made upon the faith of the parcount of which the plaintiffs claim their lien, were all ticular consignment. It is claimed however that this made before this grain was shipped [as in the case we contract was an executory one, and that the shipment are considering]. The facts of this case bring it upon of the bullion completed the purchase thereof by the all fours with Elliot v. Bradley, 23 Vt. 217, in which it consiguee. In answer to this it may be said that this was held that when goods are consigned to a factor is not a contract of purchase and sale. It is a mere under an agreement, that he shall sell them and apply loau of money, with an agreement to ship bullion as the proceeds to repay the advances previously made security to the loan. The shipment is not payment. by him to the consignors, he must, in order to acquire The bullion has to be sold by the consiguee and cona valid lieu upon the goods, as against the creditors of verted into money before any credit can be made on the consignor, have the actual or constructive posses the account of the consignor, or applied upon the loan. sion of the goods.”

This is not a purchase of bullion. A person cannot beThe court then recites the facts in the Vermont case come a purchaser without his knowledge or consent. as follows: “In this case an agreement was made be There must be an acceptance and delivery of possestween a manufacturer of cloth in the State of Version. If this were a purchase, there was no acceptmont and the plaintiffs, who were commission mer ance of the property by the purchaser. He had never chants of New York, by which the manufacturer was seen the property. It had never been in his possesto send his cloth to the plaintiffs for sale on'commission, sion. He did not have any notice of the shipment. He and was to draw upon them in advance of the sales, could not accept the goods even by a carrier appointed and also in advance of sending the cloth if necessary, by himself. upon sending the invoices of the cloth forwarded, or Says Mr. Benjamin (Benj. Sales 149, $ 160): “It is to be forwarded, and the plaintiffs were to apply the settled that the receipt of goods by a carrier or wharfavails of the sales to repay their advances. Under this inger appointed by the purchaser does not constitute arrangement the consignor forwarded to the plaintiff's an acceptance, these agents having authority only to from time to time invoices of the cloth sent and to be receive, not to accept, the goods for their employers.' sent, and the cloth was then sent to forwarding mer Boardman v. Spooner, 13 Allen, 353; Grimes v. Van chants at Burlington, and was by them sent to the l'echten, 20 Mich. 410; Rodgers v. Phillips, 40 N. Y. plaintiff as soon as convenient. The drafts were drawn 519 ; Denmeal v. Glass, 30 Ga. 637; Shepherd v. Presand the acceptances charged and sales credited upon scy, 32 N. II. 49; Mluxwell v. Brown, 39 Me. 98; Spencer general account. No bill of lading was sent to the Hale, 30 Vt. 315; Cross v. O'Donnell, 44 N. Y. 661: plaintiffs, but shipping bills were sent by the forward Snow v. Iarner, 10 Metc. 132; Quintard v. Bacon, 99 ing merchants to their agents in New York, describ Mass. 185; Allard v. Greasert, 61 N. Y. 1. ing the consignor, the consignees, and the marks upon We do not know upon what principle a consignee or the goods in order to guide the agents in delivering other person can be made the purchaser of property the goods to the consignees. It was held that the that he has never seen or accepted, and to which posgoods, after being sent to the forwarding merchants, session was never delivered, either actually or conand while upon the transit between Burlington to New structively. York, remained at the risk and subject to the control The judgment is reversed and the cause remanded of the consignors, and liable to attachment by their for a new trial. creditors. In fact this case is stronger in favor of the consignees than the one at bar, for the cloth was in transit, and the shipping lists had been sent to the SPECIFIC PERFORMANCE-STATUTE OF FRAUDS agents of the forwarding merchants, while in the case

- PART PERFORMANCE. at bar the wheat had not moved from the place where it was shipped, and the shipping receipts still remained

MAINE SUPREME JUDICIAL COURT. in the hands of the consignor.” The court also decides that the case of Daris v.

GREEN V. JONES.* Bradley, 27 Vt. 118, is not in conflict with that of Elliot v. Bradley, and cites Bank of Rochester V. Jones, 4

In April, 1862, G. made an oral agreement for the purchase of Comst. 497; JVinter V. Coit, 3 Seld. 288; Kinlock v.

real estate of his brother-in-law, S., who agreed to convey Craiy, 3 T. R. 119, in support of its decision, and re

the premises free from all incumbrances, when paid for. views IIolbrook v. Wight, 24 Wond. 169; Grosvenor v.

G. paid part of the purchase-money down, and entered Phillips, 2 Hill, 147; Bailey v. Iulson R. R. Co., 49

into the possession of the, premises, and thereafter reN. Y. 70; Hille v. Smith, 1 B. & P. 563, and

tained the possession. Ho made payments toward the Krulder v. Ellison, 47 N. Y. 36, and finds that

balance of the purchase-money at different times, comthey are not in conflict with its decision. Upon a mo

pleting the payments in 1869. At the time of the agreetion for a rehearing the following additional authori

ment the premises were incumbered by a mortgage, and ties were cited: Anderson v. Clark, 2 Bing. 20; Cu

so remained incumbered until about August, 1882. In ming v. Brown, 9 East, 506; Vertue v. Jewell, 4 Camp.

September, 1882, S. died intestate. Held, upon a bill in 31; Putten v. Thompson, 5 M. & S. 350; IVade v. Ilan

equity by G. against the administrator and heirs of S., ilton, 30 Ga. 450; Grove v. Brien, 8 IIow. 429; Bryans v.

that he was entitled to specific performance of the agree

ment to convey. Nix,4 M. & W.774; Evans v. Nichols, 3 Man. & G. 614;

5 and the court in reviewing them says:

and joined. The case was by have examined all of these authorities with care. The consent reported to the law court, upon the facts almost of them are cases where a bill of lading, or ro leged, to make such decision and order such decree as ceipt, or letter of information, was forwarded to the the rights of the parties required. consignee, or advancements were made upon the faith of the particular consignment, and they fall within

*S. C., 76 Me, 563.

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