blasting it to pieces, and subsequently picking up the pieces and carrying them on shore or into deep water.

It is a cheap method, both on account of its economy in labor and of its extreme expeditiousness. The greatest improvements to be made by this mode of operating, will hardly ever require more than one season to carry them to a successful end.

It can be very advantageously connected or combined with other submarine operations, as f. i.:

With drilling, as an auxiliary operation towards facilitating and quickening the removal of those rocks, etc., which are so located that breaking them by blasting in connection with drilling, will involve less expense than the blasting without drilling.

With dragging and dredging, for the special purpose of breaking such obstructions as snags, or other solid objects, hard agglomerations, etc., which could not be overcome by the apparatus used for those operations, and by which, therefore, a considerable dragging or dredging operation might be stopped in its progress.

It can be most effectually used for the opening of navigation in thoroughfares obstructed by ice; and acting as well upon the bottom as upward, it will, in many instances, be the means of preventing the formation of bars in rivers, where such obstructions very often will accumulate under or against the ice bar.

This short account will be sufficient to indicate the many applications that may be made of Mr. Maillefert's invention, and to show that it is destined to take a prominent place among the agencies of those submarine operations upon which we must depend for the improvement of our maritime highways. It is calculated to overcome all the difficulties in the way of those grand improvements which could not hitherto be thought of, and we venture to say that, by its liberal application, the greater part of those dangerous rocks, reefs, and ledges, by which the navigation of the waters along our coast, and in our rivers and lakes, is made extremely perilous, causing every year numerous and most melancholy shipwrecks, can be removed in the course of a few years, if the necessary means (small when compared to the terrible losses which would thereby be obviated) can be obtained for such improvements, which the voice of humanity and the interests of the country loudly

call for.

JOURNAL OF MERCANTILE LAW.

ACTION OF ASSUMPSIT FOR GOODS SOLD AND DELIVERED.

In the Supreme Judicial Court of Massachusetts, Suffolk County, March term, 1852. Judge Fletcher presiding. The Frostburg Mining Company, vs. The New England Glass Company.

This was an action of assumpsit for goods sold and delivered. At the trial the plaintiff's produced one Child as a witness, who testified that he was the agent of the plaintiffs, who did their business in Baltimore, Md.; that about the 19th March, 1849, he received from the agents of the defendants, who do their business in Cambridge and Boston, a verbal order for a cargo of coal to be shipped by the plaintiff's from Baltimore in a vessel drawing not over ten feet of water, at a freight not over $2 25 per ton. This order the witness forwarded to the

agent of the plaintiffs in Baltimore, and on the 14th April, 1849, the cargo was shipped on board a schooner which drew, when fully loaded, nine feet nine inches only. The bill of lading was forwarded by the plaintiffs to Mr. Child, and received by him in due course of mail on the 16th or 17th April, and specified the freight to be $2 25 per ton. On the day it was received, it was indorsed by Mr. Child, and together with a bill of the coal left by him in the counting room of the defendants' agent, who was at that time absent. As soon as the defendants' agent returned, he sent back the bill of lading and refused to receive the coal. The bill for the coal reduced the price twenty cents per ton, so that the freight on the coal to be paid by the defendants would not exceed the limits of $2 25 per ton. On the passage from Baltimore to Boston the vessel in which the coal was shipped, foundered. After being raised and repaired, she arrived in Boston, where the plaintiffs, by their agent, tendered the coal to the defendants, who refused to receive it.

It was proved at the trial that by the usage of the coal trade between Baltimore and Boston, when coal is ordered in Boston from Baltimore, the delivery of it on board a vessel consigned to the person ordering it, is a compliance with the order, and the coal is thereafter at the risk of the party ordering it.

Fletcher J. delivered the opinion of the Court. The defense was, that according to the provisions of the statute of frauds, this being a contract for the sale of goods, wares, and merchandise for the price of fifty dollars or more, and there being no note or memorandum of the bargain in writing, the contract was not binding unless the purchaser should accept and receive part of the goods, or give something in earnest to bind the bargain or in part payment. There was nothing given in part payment, or in earnest, and the only question was, whether the defendants did accept and receive the goods, or any part of them? That there was no actual taking or acceptance of the coal by the defendants, is quite clear. So soon as the defendants' agent had knowledge that the bill of lading was left at his counting-room, he forthwith sent it back to the plaintiff's agent, and expressly refused to receive the coal. When the coal itself arrived, and was tendered to the defendants' agent, he at once refused to receive it. So that the defendants had promptly repelled all attempts to make an actual delivery of the vessel to them, and had promptly refused to accept and receive the coal or any part of it. But it was contended by the plaintiffs' council that it is not necessary that there should be an actual manual taking or occupation of the coal, but that there may be a constructive accepting and receiving, and that the receiving on board the vessel was a sufficient accepting and receiving by the defendants. The proposition of the plaintiffs that there may be a constructive accepting and receiv ing, or a receiving without the actual manual occupation by the purchaser, seems to be well sustained by the authorities. Therefore, in many cases it is made a question to the Jury whether the purchaser by his mode of acting or forbearing to act, or by some acquiescence, has not accepted the goods though there has been no actual manual taking and occupation of them by him. The further proposition of the plaintiff, that the acceptance and receipt to satisfy the statute of frauds are not such as to preclude the purchaser from afterwards to the quantity or quality of the goods is certainly fully sustained by the case of Morton vs. Tibbett (15 Adol. & Ellis.) This case in this particular differs from many previous cases, which are all carefully referred to and commented on by the Chief Justice of the Queen's Bench, in delivering the opinion of the Court. In Morton vs. Tibbetts, the receipt of the goods is considered as a substitute for writing, leaving to the purchaser the same right to object that the contract has not been complied with, which he would have if the contract had been in writing. The other and most material proposition on behalf of the plaintiffs, that the coal when delivered on board the vessel was accepted and received by the defendants, within the provision of the statute, remains to be considered.

That a delivery to a carrier is not sufficient to satisfy the statute, as a general proposition, is undoubtedly true, and is very properly admitted by the plaintiffs' council. But it is maintained that the master of the vessel under the particular circumstances of this case, was an agent to accept, to satisfy the statute, because in the first place he was a carrier nominated by the defendants. But the facts

show that the verbal order of the defendants was merely to transmit the coal shipped by the plaintiffs, from Baltimore, in a vessel drawing not more than ten feet of water, at a freight not over $2 25 per ton. No reference was made to any particular vessel or master. Even this very general order was not complied with by the plaintiffs, as the freight was $2 45 per ton, instead of $2 25, as was ordered. This departure in the price of the freight would, perhaps, of itself be sufficient to exempt the defendants from the liability to take and pay for the coal, But it is not necessary to put the case on that ground, or attach any importance to that fact. The order as to a vessel was very general, referring to no particular vessel, or master, specifying only the draft of water and price of freight. The master was merely a carrier, and the taking by him would in no sense, and upon no principle, be regarded as a receipt by the vendee. The case of Morton vs. Tibbetts was much stronger than the present one. There, the defendant himself sent a particular lighterman to receive the wheat. But the delivery to the lighterman was not considered to be a receipt by the vendee, though other acts of the vendee, tending to show an acceptance by him, were regarded as sufficient to justify a verdict for the plaintiff. So also in Bushel vs. Wheeler, in the same volume, the vendee ordered the goods to be forwarded by a particular sloop, yet the delivery on board the sloop was not regarded as a receipt by the vendee within the statute, though the subsequent acts, and forbearing to act, on the part of the vendee, were held to be sufficient to go to the jury, to find an actual receipt by the vendee. It is therefore quite clear that a delivery on board the vessel, in this case, cannot be regarded as a receipt, within the provision of the statute, by the vendee, on the ground that the defendants ordered the coal to be forwarded in that way.

But it is further maintained by the plaintiffs, that the master of the vessel was an agent to accept, within the statute, because the usage of trade made him such in the coal trade between Boston and Baltimore. The usage, as shown, was that when coal is ordered in Boston from Baltimore, the delivery of it on board a vessel consigned to the person ordering it, is in compliance with the order, and the coal is thereafter at the risk of the party ordering it. It does not in terms appear whether or not this usage applies to mere verbal orders which are intended by the statute of frauds. Nor is it shown upon what ground this usage can be set up and maintained against established provisions and principles of law? Upon general principles of mercantile law, where a person accepts a written order, and delivers goods on board a vessel according to the order, consigned to the person ordering them, in common form, they are then of course at the risk of the consignee. When orders have been received and executed, and delivery has been made to the master of the ship and bills of lading signed and forwarded, the seller is functus officio, and can do nothing more, except so far as he may have a right of stoppage in transitu.

It is unnecessary to consider how far there could be any usage affecting the rights of the parties in this case, as it is quite clear that the case is not within the usage set up and relied upon. The usage is said to be, that when coal ordered is delivered on board a vessel consigned to the party ordering it, that is a compliance with the order, and the coal is thereafter at the risk of the party ordering it. But in the present case, the coal was not consigned to the party ordering it, but on the contrary was consigned to the plaintiffs' own agent. By the bill of lading the coal was to be delivered to Addison Child or his assigns. But the bill of lading expressed that it was to be delivered to Addison Child for the New England Glass Co., and when the bill of lading was received by the consignee he indorsed it and offered it to the defendants' agent, which it is said was a substantial compliance with the alleged custom. The supposed custom required the coal to be consigned to the defendants, but it was in fact consigned to the plaintiffs' agent. This, so far from being a substantial compliance with, was the widest possible departure from the custom. The bill of lading gave the defendants no right to, or control over the coal, and when indorsed and offered to defendants' agent, were promptly rejected. There was, therefore, no acceptance of the coal by the defendants, to satisfy the statute of frauds, and the plaintiffs must become nonsuit.

WHAT CONSTITUTES DUE DILIGENCE IN MAKING A DEMAND UPON THE DRAWER OF A NOTE, ETC.

The following opinions delivered by Judge Lewis, in the Supreme Court of Pennsylvania, April, 1852, are of interest to the bar and business men. The one is in reference to the practice in pleadings, and the other relates to what constitutes due diligence in making a demand upon the drawer of a note.

Bennett vs. Young-Lewis J.-In this case we are unable to perceive any error in the proceedings of the Court below. On the contrary we are gratified to find that the Court was so properly impressed, in regard to its powers and duties, and so careful of the rights of the parties as to instruct the jury distinctly that "the question of what is due diligence in making a demand upon the drawer, when the facts are undisputed, is a question of law exclusively, and that where it depends upon controverted facts, it is for the jury to determine what the facts are: and if the facts are ascertained the law settles it, whether there has been due diligence." There was no error in this instruction.

But it seems that the Notary undertook to draw to himself the cognizance of the whole question of law and fact by a sweeping certificate that he had "made diligent search and inquiry" for the drawers. The Judge admitted this certificate in evidence, and that threw upon the defendant the burden of disproving the facts therein stated. This was rendered exceedingly difficult by the omis sion to state in the certificate the acts of the Notary, with the material circumstances of time, place and persons, which were supposed by him to amount to "diligent search and inquiry." Where did he search? Did he go to the last place of residence of the drawers? Did he inquire of the holder himself, who is presumed to know, before he takes the note, the residence as well as the circumstances of the drawers? Did he even take the trouble to examine the common source of information, the Directory? The certificate is silent on all these questions. But difficult as the task was, the defendant gave ample evidence to show the dangerous nature of admitting the certificate of the notary as evidence of facts not distinctly stated, so that the party may have the means of rebutting the evidence, and the Court the means of judging, if the facts are not contested, whether they constitute due diligence or not. The act of January 2, 1815, makes the official acts, protests, and attestations of all Notaries Public acting under the authority of this Commonwealth, certified under their respective seals of office, prima facie evidence. But it has been properly said that this statute was not intended to enlarge the official duties of Notaries, but merely to furnish the means of authenticating such acts as were within their official authority be fore. Chief Justice Gibson, in delivering the opinion of the Court in Bellimere vs. Bank of the United States, 4 Whar. 113, states that "though generally if not universally employed on such occasions, the official character of a Notary extends only to the protest, and not to the hunting up of the parties." Under our present view of the value of these certificates in the form in which this was made up, and the great abuse which may be practiced by means of them, we are not surprised that the Judge below told the jury that he had "some question whether the certificate was any evidence at all." It is not necessary to decide the question at present. It is sufficient to say that this remark to the jury furnishes no ground for reversing the judgment. Judgment affirmed.

Smith et al. vs. Latour.-Where the facts set forth in a declaration or plan do not in any form in which they may be stated, constitute a good cause of action in the one case, or a valid defense in the other, the parties may, if they prefer that course, contest the facts in the first place before the jury, and afterwards call for the judgment of the Court upon them as found and set forth upon the record. But if the objections touch not the substance, but go merely to the form, in which the facts are set forth, this course cannot be pursued. He that stands upon matters of form-has a slippery footing, and if he slips at the time when the law requires him to stand, the objection is cured by his own inattention to the very matter which he charges upon his adversary. It is assuredly very late in the day to announce, in a decision of the highest Court in the State, that duplicity in a declaration and defects of form in setting forth a good cause of

action cannot be taken advantage of after verdict. The first is cause for special demurrer only, (Todd 647,) and the last is cured by the verdict, 2 Todd, 826. The second count, it is true, is informal; but we can readily perceive therein the elements from which a formal declaration, containing a good cause of action, might have been constructed.

The defendants below are therein charged with fraudulently obtaining goods from plaintiff below by pretending and asserting that they would pay the value, in a note against McMillan, which it is in effect asserted, they knew to be worthless. After verdict, we may understand this declaration as containing the averments that the defendants represented the note of McMillan to be good and valuable; that they knew at the time that this representation was false, that they intended by means of this falsehood to defraud the plaintiff, and that they thereby succeeded in fraudulently obtaining his goods. These facts properly set forth, constitute a good cause of action. But if this were not the case, it does not follow that the judgment should be reversed. It is the ordinary case of one entire verdict upon several counts, some of which are good and one is supposed to be bad. In that case, although the evidence may have been applicable to all the counts, the court below might have extended the verdict and judgment upon the good ones. Under the act of assembly which authorizes this court to enter the judgment which the court below ought to have entered, and upon the general principles which, now independent of the act of assembly govern the courts in administering the law according to common sense and justice, this court might now enter the verdict and judgment upon the counts admitted to be good. Having the whole evidence before us, we might do what was done in Catherwood vs. Kohn, 7 Barr, 392. But this is not necessary, as we are of opinion that the informality of the second count consists merely of the defective manner in which a good cause of action is set forth, and this, as already stated, is law by the verdiet.

The court below was asked in the 14th point to instruct the jury that the first count in the declaration was defective; and it is here complained that the court refused to give this instruction, and stated that the defendants should have demurred to it or should move in arrest of judgment. This was undoubtedly correct. The jury was empanelled to try the issue of fact, not to assume the office of the court and determine the question of law arising upon the face of the declaration. What had the jury to do with the defects in the declaration? They were to ascertain whether the facts which it alleged were established by the evidence or not, and the effect of the finding was for the decision of the court afterwards. To permit a party to obtain a verdict of not guilty, upon technical objections to the form of the declaration, would be a prostration of justice. The court was perfectly correct in its view of this point of the case. Fifteen points were presented for the solution of the court below, and there are nineteen specifications of errors here. But we perceive no error in any part of the proceedings below. Judgment affirmed.

BROKERS-CONTRACT TO DELIVER STOCKS, ETC.

In the Superior Court, City of New York, February, 1852, before Judge Duer, Paine, and Bosworth. John B. Staples, vs. Charles Gould.

[Contract to deliver stock at stipulated price. Deposit by principal with broker to cover contingent loss in sale of stock on time. A contract to deliver stock on time when none is owned either by broker or principal, whether in name of broker or principal absolutely void under the statute. Money deposited with broker to secure him against loss in such transactions not recoverable.] The pleadings and evidence establish the following facts:-The plaintiff, on the 15th of January, 1851, employed the defendant, a broker, to sell for him 200 shares of Canton Company stock, at the price of $66 per share, deliverable, at the option of plaintiff, at any time within 30 days from that date, the stock to be paid for on delivery. In pursuance of such employment, the defendant, on the same day, as such broker and agent, and with the knowledge of the plaintiff, contracted to sell 100 shares to Gilbert, Cobb & Johnson, and 100 shares to Wheelock & Brothers, at $66 per share, deliverable at the option of the plaintiff,