there contended that the plaintiff could recover only nominal damages, unless he could show that the goods could not have been carried by some one else; but the court said: "We think it is the duty of the defendant to do this, if practicable, and not of the plaintiff The market value of the article there (at the place of destination) at the time when it would probably have arrived and been ready for sale, is what it would have been worth to the plaintiff; and the difference between that, and the value at the place of shipment, added to the cost of freight, is the amount of loss which the plaintiff has sustained." It is to be observed that in O'Connor v. Foster an alternative measure of damages seems to be admitted, namely, the extra freight which the sender has been compelled to pay for getting the goods to the place of destination, if he has, in fact, as a reasonable man, adopted that course, or which he would have been compelled to pay if he had not adopted that course, and, if a reasonable man, he ought to have adopted it; but the burden of showing that he ought to have done so, if in fact he has not, was thrown upon the defendant. "If, as is usually the case here, another conveyance could have been obtained for this wheat before the canal froze up, by a little extra expense and the delay of a day or two, he would have no right to claim greater damages than would have been incurred by such extra expense and delay." But when this is examined, it will appear that it is only another form of stating the same rule. The value of the corn (the goods in question) at Pittsburgh, the place of intended shipment, was its value with reference to (among other things) the neighboring market of Philadelphia, the place of intended destination. If at the time when it was left behind it could still have been got to Philadelphia, its value at Pittsburgh was its value at Philadelphia, after deducting the freight it would have cost to get there. If freights had risen before it could be sent, its value would be so much less at Pittsburgh, unless there had been a corresponding rise of price at Philadelphia.

But in another American case the rise in freights was taken as a substantive thing, which itself afforded, without reference to any other circumstance, the measure of damages. This was held in Ogden v. Marshall, 4 Seld. 340, 1853, but from that decision two judges, Willard and Taggart, dissented, on the ground that the plaintiff did not show that he had any cargo to ship. If the case was that of a charter-party, which the plaintiff could have made use of by taking either his own cargo or that of any other person, there seems no reason to quarrel with the decision; if the ship had been placed at the plaintiff's disposal, he would have made a profit out of the rise in the rate of freight; but if this was not so, the decision seems open to question on the grounds relied on by the dissentient judges.

The same question lately arose here in the case of Featherstone v. Wilkinson, 21 W. R. 442, L. R., 8 Ex. 122. The defendant had contracted to supply a ship to carry a cargo of coals from Newcastle to Havre. He made default in supplying a ship, and the plaintiff thereupon chartered another vessel, for which he was compelled to pay a higher rate of freight. In an action for the breach of contract, the plaintiff claimed, not only to recover the extra freight which he had thus paid, but also to recover damages in respect to a rise in the price of coals. The only evidence which he gave as to this was that he had secured a "turn" for the vessel at a colliery; that, owing to the defendant's

default, this turn was lost; that he could not get another turn until he could name a ship in substitution, and that by this time coal had risen 1s. 6d a ton at Newcastle. The extra freight was conceded; but it was contended for the defendant that if coal had risen 1s. 6d a ton, it was 1s. 6d a ton more valuable in the market, and that, prima facie, it was to be taken that the price had also risen at Havre. But the court held that it lay upon the defendant to show affirmatively that the price had risen at Havre. It is certainly not easy to see how the defendant could call upon the court to presume from the rise at Newcastle a corresponding rise at Havre; and the argument seems to have taken up the question at too late a point. It would, we should have supposed, have been a much more plausible line of reasoning to say that the evidence as to the rise of price at Newcastle was irrelevant. If O'Connor v. Foster is right, and it is in close analogy with the other cases on this question, both English and American, the proper evidence of damage would have been the difference between the value of the coal at Havre at the time when it ought to have been delivered, and its value at Newcastle when it was left upon the plaintiff's hands. That difference would be probably the extra freight which it cost to get it to Havre, and perhaps, without further evidence, it might be presumed that it was so; leaving the defendant to show, if he could, that the rise in freight had also caused a rise in the price of coal at Havre. But what had the defendant to do with the rise at Newcastle? Why should the question depend upon whether the plaintiff had or had not a cargo on hand at Newcastle? No notice was given to defendant about the ' turn at the colliery, or that the plaintiff might be put to purchase at a higher rate. If he was to assume any thing, would he not rather assume that the plaintiff had a cargo on hand than that he had not? And if the plaintiff had had a cargo on hand he would have gained and not lost by the rise in price at Newcastle; he might have made his profit without sending to Havre at all. Suppose, again, plaintiff having a cargo on hand, the price had fallen at Newcastle, would he have been entitled to recover the difference? Why should he not, for what distinction can be made between the payment of an enhanced price and a depreciation in value? It seems to us that there was a great deal to be said for the proposition, that the plaintiff had given no evidence at all which showed a loss; but when it was once admitted that the plaintiff gave relevant evidence in showing a rise at Newcastle, and that a corresponding rise at Havre was to be presumed by way of meeting that prima facie case, the defendant seemed to admit himself out of court, for obviously no such presumption could be made. No authorities were cited, nor, so far as the English court are concerned, are we aware of any on the precise point in question. But neither was the question argued upon analogy, which might at least have been referred to. We cannot regard the decision as a very satisfactory one, and until it obtains some further confirmation we must hesitate to accept it as an authority. Solicitors' Journal.

Judge J. S. Black recently made a speech in the Pennsylvania constitutional convention in favor of swearing every member of the legislature at the close of every session that he had cast no vote in which he was personally interested, and had supported no corrupt proposition.

DIGEST OF RECENT AMERICAN DECISIONS.*

BANKRUPTCY.

1. Action by creditor after proving debt.—Under the provisions of section 21 of the United States Bankrupt Act of 1867, a creditor who has proved his debt is deemed to have waived his right of action against the bankrupt, and cannot maintain such action. Wilson v. Capuro, 85.

2. Control of bankrupt's assets exclusive in federal tribunals.- It is the intent of that act that the federal tribunals shall have the exclusive control of the assets of the bankrupt, and shall distribute the proceeds among his creditors. Ib.

CONSTITUTIONAL LAW.

1. Power of judiciary to declare statute unconstitutional. The power of the judiciary to declare a statute unconstitutional should never be exerted, except where the conflict between it and the constitution is palpable and incapable of reconciliation. S. & V. R. R. Co. v. City of Stockton, 149.

2. Constitutional power of taxation: legislative discretion. The principle upon which taxation is to be imposed by the State government is pointed out by the constitution; but the extent to which it may be carried is left unlimited, except by legislative discretion. Ib.

3. "Public use" to support taxation for railroad purposes. The same kind of "public use" which will authorize the taking of private property in aid of a particular railroad, in the exercise of the power of eminent domain, will support the laying of a tax in aid of the same road under the taxing power. Ib.

CRIMINAL LAW.

1. Confession as evidence. — The confession of a party, made to a sheriff arresting him for grand larceny, after being told by the officer that it was useless to deny taking the property, that there was evidence to convict him, and that it would go lighter with him to confess, is not a voluntary confession, and cannot be properly given in evidence. People v. Johnson, 452.

2. Evidence of character of prisoner. — In a criminal case, proof of bad character of the deceased is admissible only when it tends in some way, in connection with the immediate circumstances under which the killing was done, to show that the prisoner had sufficient grounds, as a reasonable man, to fear that he was himself about to receive at the hands of the deceased some great bodily harm, and that he acted under the influence of fear in killing the deceased. People v. Edwards, 640.

DEED.

Inserting name of grantee in a deed. A deed, in due form, signed and acknowledged by the grantor, does not become his deed until the name of a grantee is inserted therein; and an agent of the grantor cannot insert the name of a grantee in the absence of the grantor, unless his authority is in writing. Upton v. Archer, 85.

EVIDENCE.

Entering house of prostitution.—The fact that a married man enters a house of prostitution in the evening and remains all night raises a strong presumption of adulterous intercourse, and casts the burden on the party who does so of showing that he is innocent. Evans v. Evans, 103.

LANDLORD AND TENANT.

Landlord and tenant. If the landlord sells and con

* From 41 California Reports.

veys the leased premises, and assigns the lease, the grantee must inform the tenant of the sale before demanding rent, and if the tenant refuse to pay rent to the grantee, when he does not know of the sale, the refusal is not a forfeiture of the lease. O'Connor v. Kelly, 432.

MUNICIPAL CORPORATION.

Opening of streets. - The opening of streets in a city is clearly a municipal purpose; and whether the cost of such enterprises should be borne by the contiguous property, or by all the property of the city, or a certain proportion by each, is a matter for legislative discretion. Linton v. Ashbury, 525.

RAILROADS.

1. Taking portion of a street for a railroad. — The condemnation of land in a street for the use of a railroad company, to enable it to lay and operate its track, gives it no title to the land condemned, nor any interest in it, except a mere easement in common with the general public. S. P. R. R. Co. v. Reed et al., 256.

2. Damages for laying more than one railroad track on street. If a party dedicates a public street through his land, and a railroad company afterward procures a condemnation of land along the street for its track, and damages are awarded to him therefor, this is no reason why he should not be awarded further damages, to be paid by another railroad company, which seeks to build another track on the same street. Ib.

3. Damages for building railroad on street. - If the authorities of a city grant to a railroad company the right to lay its track along a public street, this grant does not preclude the owners of lots along the line of the street from recovering such damage as they sustain thereby. Ib.

4. Idem.-A person who owns lots fronting on a street dedicated by himself to the public use is entitled to damages if a railroad company lays its track along the street, and by that means obstructs it for the use of teams and vehicles, and if the value of his lots is diminished thereby. Ib.

STATUTORY CONSTRUCTION.

1. Statutory construction: policy of law not to be considered. In the consideration of a statute, duly passed by the legislature, the supreme court will not inquire into the motives of its authors, or entertain the question whether it be a wise or a foolish law. S. & V. R. R. Co. v. City of Stockton, 149.

DIGEST OF RECENT ENGLISH DECISIONS.

FOREIGN DOMICILE.

Testamentary suit: probate issued under law of domicile, and unrevoked: pleading: practice.-If a will of the deceased has been formally recognized and acted upon by the court of competent jurisdiction in the country of his domicile at the time of death, and remains unquestioned in that country, the court of probate will not allow the validity of such will to be litigated here. Miller v. James, L. R., 3 Prob. and Div. 4.

FRAUD.

False representation: signature of party to be charged: signature by agent of company formed under 7 Geo. IV, ch. 46: principal and agent: action against joint tortfeasors. The plaintiff sued W. & G. jointly, for a false representation with respect to the solvency of R. The defendant W. was sued as the public officer of a banking company, formed under 7 Geo. IV, ch. 46, and

the defendant G. was the manager at one of their branches. The plaintiff was a customer of the S. bank, and requested the manager of that bank to inquire for him as to R.'s credit. The manager wrote a letter addressed to "the manager" of the defendant's banking company, requesting information whether R. was responsible to the extent of £50,000. The defendant G. wrote a letter, which he signed as manager, giving a favorable reply as to R.'s responsibility. The plaintiff, in consequence of this letter, supplied R. with goods, for which he never was paid in consequence of R.'s insolvency. The statement made by G. was false to his knowledge. The defendants' banking company had no knowledge, otherwise than through G., that such a letter had been written, and gave him no express authority to write the letter, but the writing of such a letter was an act done within the scope of the general authority conferred on G. as manager.

Held, 1st. That the signature of G. as manager was the signature not merely of an agent, but the defendants' banking company itself, and therefore the signature of the party to be charged within s. 6 of 9 Geo. IV, ch. 14, § 6, so as to make the banking company liable for his false representation. 2d. That the letters showed that the communications were between the two banks; and the representation was not merely the representation of G. personally, but of the defendants' banking company. 3d. That inasmuch as it is usual for the customers of a bank to make inquiries like that made by the plaintiff, it must be taken to have been within the contemplation of the defendants that the inquiry as to R.'s solvency might have been made on behalf of a customer of the S. bank, and that the representation might be communicated to him; and that the banking company and G. were liable to the plaintiff, he being the customer who had made the inquiry. 4th. That, on the authority of Barwick v. English Joint Stock Bank Law Rep., 3 Ex. 259, the banking company was liable for the false representation of its manager, made in the course of conducting the business of the bank. Lastly, That as all persons directly concerned in the commission of a fraud are to be treated as principals, the banking company and G. might be sued jointly. Swift v. Winterbotham, P. O., and Goddard, L. R., 8 Q. B. 244.

MARINE INSURANCE.

Warranty as to the amount of insurance on the hull: non-communication of a material fact coming to the knowledge of the assured after the acceptance of the risk. A proposal for insurance on freight was made and accepted on the 11th of March. On the 16th the ship was lost. On the 17th the assured, with knowledge of the loss, but without communicating it to the insurers, demanded a stamped policy. The insurers then, for the first time, required to be informed as to the amount of insurance upon the hull, and inserted in the policy (which the assured accepted) the following warranty: Hull warranted not insured for more than £2,700, after the 20th of March." The vessel was, in fact, insured for an additional £500 in an insurance club, by the rules of which all ships belonging to members were insured from the 20th of March in one year to the 20th of March in the following year, "and so on from year to year unless ten days' notice to the contrary be given," and in the absence of notice the managers were to “renew each policy on its expiration."

Held, that, notwithstanding those rules, regard being had to the Stat. 30 & 31 Vict. ch. 23, §§ 7-9, the clubpolicy was not a continuing policy beyond the 20th of

March of the current year, and that, the ship having been lost before that day, no new effective policy could have been made, and consequently that the warranty was complied with.

Held, also, that the risk having been accepted by the insurers on the 11th of March, the addition on the 17th of a term for their benefit, and not affecting the risk, did not prevent the policy from being one drawn up in respect of the risk accepted on the 11th, and, therefore, upon the authority of Cory v. Patton, L. R., 7 Q. B. 304, the non-com munication of the loss was not a concealment of a material fact so as to avoid the policy. Lishman and another v. The Northern Maritime Insurance Company, L. R., 8 C. P. 216.

PRIVILEGED COMMUNICATION.

Libel and slander: proceedings of court of inquiry instituted by commander-in-chief under articles of war: evidence.-A court of inquiry, instituted by the commander-in-chief of the army under the articles of war, to inquire into a complaint made by an officer in the army, though not a court of record, nor a court of law, nor coming within the ordinary definition of a court of justice, is, nevertheless, a court duly and legally constituted and recognized in the articles of war and the mutiny acts; and statements, whether oral or written, made by an officer summoned to attend before such court to give evidence, are absolutely privileged, even though they be made mala fide, and with actual malice, and without reasonable and probable cause. Such statements are part of the minutes of the proceedings of the court, which, when reported and delivered to the commanderin-chief, are received and held by him on behalf of the sovereign, and on grounds of public policy cannot be produced in evidence. Dawkins v. Lord Rokeby, L. R., 8 Q. B. Ex. Ch. 255.

RAILROAD.

Carriers of cattle: negligence: conditions as to restiveness of cattle: principal and agent: agreement for interchange of traffic. The plaintiff desired to send a cow from D. to S., and took her to the station at D., belonging to the G. N. Co., where he booked her for S. by the defendants' railway. He signed a contract, under which it was agreed between him and the G. N. Co. that they should not be responsible for any loss or injury to cattle, in the delivering, if such damage should be occasioned by kicking, plunging, or restiveness. The cow was put into a truck belonging to the defendants, and on arriving at S. was brought to a siding by the defendants' yard for the purpose of being unloaded. A porter in charge of the yard began to unfasten the truck. The plaintiff thereupon warned him not to let the cow out, as she would run at him; nevertheless he did let her out; she ran about the yard, and ultimately got on to the line and was killed. By an agreement between the defendants and the G. N. Co., it was provided that a complete and full system of interchange of traffic in possengers, goods, parcels, etc., should be established from all parts of one company, and beyond its limits to all parts of the other company and beyond its limits, with through tickets, through rates, and invoices and interchange of stock at junctions; the stock of the two companies being treated as one stock That the two companies should aid and assist each other in every possible way, as if the whole concerns of both companies were amalgamated. In an action brought against the defendants for the loss of the cow, the court having power to draw inferences:

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