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her course, when she herself was already off the wind, and could have kept off a little more without difficulty. I think the brig was alone to blame in this collision, and therefore a decree must be entered for the libellants, and an assessor appointed to fix the damages, unless the parties can agree on the amount thereof.

CONTRACTS--SALE AND DELIVERY-WAIVER.

Bailey vs. The Vermont Western Railroad Company.

This was an action brought by Bailey to recover the value of an amount of iron delivered to the railroad company.

It appears that Bailey agreed to ship to the railroad company 5,500 tons of iron, 500 in June 1851, 2,500 in July and 2,500 in August, if it were practicable within that time, and the railroad company agreed to give their notes for each parcel of iron that should be shipped on receiving each bill of lading. No iron was shipped in June, and only part of what was required in July, and only part in August. By the 25th of October only 2,900 tons had been shipped in all. These, however, were received by the company without objection, nothing being said about the delay; but they neglected to give their notes for the iron actually received, and in April, 1852, this action was brought to recover the amount due on the iron. The case was argued before three Judges in the New York Supreme Court, (first district, New York city,) and the decision, which has not yet been reported, was rendered in June last, by his Honor Judge Mitchell. It was substantially as follows:

The defendants by accepting part of the iron, out of time and without objec tion, waived that part of the contract which required the iron to be delivered in due time, or admitted that it was delivered as soon after that time as was practicable. In either case they were bound to give their notes. They neglected to do so. This discharged the plaintiffs from any obligation to deliver the rest of the iron until the defendants should furnish their notes for the part delivered, and entitled the plaintiffs to commence a suit for the notes which should have been given, without tendering the delivery of the rest of the iron, although the time for the delivery of all was past before the suit was brought. The contract may not be rescinded by the omission of the defendants to give their notes, but the obligation of the plaintiffs to deliver the iron is suspended by that omission. Take a familiar case and similar to this, as an illustration. A builder agrees to erect a house for a certain sum to be paid by instalments; a certain part of this sum when the first tier of beams is on, another certain part when the second tier of beams is on, and so on throughout the work. He finishes the house so far as to have the first and second tier of beams on, and the owner refuses to pay him. He waits patiently for his money until the time elapses when the whole house should have been completed, and then sues for the sums to be paid under the contract when the first and second tiers of beams should be on. The owner denies his liability, because the whole house was not finished in due time, and appeals to the laws of New York as deciding that he never shall be liable for what was done for him, although he was in fault in neglecting to pay as the contract required, and that neglect would probably prevent the builder's being able to complete the work. Such a defense could never be sustained.

This case differs from that only because in this the iron was not delivered in due time. But it is conceded that the acceptance of the iron by the defendants waived the objection as to time. That being so the first fault and the continuous fault is in the defendants in not giving their notes, and it makes this case precisely like the one proposed.

If a servant is employed for $120 per annum, to be paid in equal monthly instalments, and leaves his employer before the year is out because he is not paid the instalments due, can he not recover at the end of the year for those instalments?

If a tenant hire a house for a year at a certain sum, payable in equal quarterly payments, and is evicted after the end of the third quarter, is the eviction any defense for the instalments of rent previously due?

A contract to pay for land by instalments and for a delivery of the deed when

the last instalment should be due, is different, because there the consideration on one side cannot be, and is not intended to be divided into parcels; and there it is properly decided that if the vendor do not sue until the last instalment fall due, he must aver a tender of the deed. But a different principle would apply if the contract were to buy one hundred different lots of land, and to pay for each lot, whenever a deed for that lot should be tendered. If the title were to fail as to one lot the vendor could, even after the time for the delivery of all was expired, recover for the ninety-nine lots conveyed, and justice would be done by allowing him damages for the non-delivery of the deed as to the one lot.

The answer in this case admits that the iron was received, but states, in substance, that it was received under protest. The answer cannot be read to prove this; but even if there were a protest that the defendants should not be bound to pay for the part delivered, if the rest should not be delivered in a reasonable time thereafter, that protest would not exonerate the defendants from liability to give their notes pursuant to the contract for the part actually delivered. They should have given their notes and protested that they would not hold themselves liable on them, nor excuse the past delay, nor accept or pay for the rest of the iron, but would claim damages for all breaches of the contract unless the rest of the iron should be duly delivered.

If there is an entire contract, and no payment to be made by the defendant until the whole contract be completed, the decisions in this State are strict and do not allow a recovery for the part performance, but that is because the bond is so; the parties have chosen by their agreement to say that payment shall be made only when all is completed. Here the bond is not so; the parties have prudently chosen to say that payment shall be made as the parcels are shipped. The principle of both decisions is the same, that the parties may be a law to themselves, and that the courts will carry out their contracts as they make them.

EXTENSION OF TIME-SURETY'S LIABILITY.

In the Supreme Court, General Term, June, 1854. Roosevelt, and Clerke. Draper vs. Romeyn.

Before Judges Mitchell,

Action against the defendant as surety of a promissory note. Defense, agreement by the plaintiff with the principal to extend the time of payment. It appears that when the note fell due, the principal, who is employed by the plaintiff as his agent, called upon him to obtain an extension of time, and in urging him for it, expressed his willingness to forward the sale of his lands during his absence in Europe, without any additional cost to the plaintiff. The plaintiff agreed to let the note stand for some days, but refused to fix any specified time for payment.

CLERKE, J.-Did the plaintiff make such an agreement with the principal as to entitle the surety to a discharge from his liability as surety?

It is a rule too well settled to admit of dispute now, that an extension of the time of payment for a single day, without the consent of the surety, would exonerate him. But this extension of the credit must be founded on a consideration, and must be such an agreement as precludes the creditor from enforcing payment against the principal until the expiration of a specified period. In this case, the evidence in relation to the alleged extension shows nothing like an agreement of this nature. There is nothing in it from which a sufficient consideration can ever be inferred, or such a promise on the part of the plaintiff that could prevent him from commencing an action against the principal at any time after the note became due. The willingness of the principal to serve the plaintiff in another matter could not be deemed a legal consideration sufficient to support an agreement; and even if it were, the promise was too indefinite and uncertain to debar the plaintiff from resorting to his legal remedy against the principal at any time after the note became payable by its terms. The promise, at most, was merely gratuitous, and imported no legal obligation whatever.

COMMERCIAL CHRONICLE AND REVIEW.

COMMERCIAL EMBARRASSMENTS-THE GATHERING AND BURSTING OF THE STORM-THE BANK PANIC CONDITION OF THE BANKS IN NEW YORK, BOSTON, AND MASSACHUSETTS-ILLEGITIMATE BANKS AND BANKING-DEPOSITS AND COINAGE AT THE PHILADELPHIA AND NEW ORLEANS MINTS FOR OCTOBER, AND AT ALL THE MINTS FOR THE FIRST NINE MONTHS OF THE YEAR, AND SINCE THE DATE OF THEIR ORGANIZATION-RECEIPTS FOR CASH DUTIES AT NEW YORK AND PHILADEL PHIA-IMPORTS AT NEW YORK FOR OCTOBER AND SINCE JANUARY FIRST-IMPORTS OF DRY GOODSEXPORTS FROM NEW YORK TO FOREIGN PORTS FOR OCTOBER AND SINCE JANUARY FIRST-SHIPMENTS OF SPECIE-COMPARATIVE EXPORTS OF DOMESTIC PRODUCE-QUARTERLY STATEMENT OF EXPORTS FROM NEW ORLEANS, ETC.

The commercial embarrassments noticed in our last have continued, and in many sections of the country the pressure has increased, until credit is shaken everywhere, and all classes are made to realize the insecurity of worldly possessions. The causes which led to this have been a long time at work. The prosperity which prevailed almost universally up to the middle of last year had made our business men so confident in their own strength, that all classes had expanded their engagements far beyond the protection of their own resources, and were exposed to the storm which began to gather on every side. The first great shock to credit was the discovery of the Schuyler fraud, which brought to a stand nearly all those works of internal improvement for whose successful completion a large share of public confidence was so necessary. From that moment sacrifices began, and the Railroad interest will never wholly recover from the blow. The war in Europe created more or less money pressure abroad, and capitalists there were less liberal in their investments here, at a time when their assistance would have been most acceptable. Goods which had accumulated abroad where the demand has almost ceased, were crowded upon our shores, at whatever advance could be obtained, thus aggravating the evil. At that moment, instead of liberal shipments of breadstuffs to cover this new drain upon our resources, the exports fell off, owing to the high prices of cereals in the interior, and the great scarcity at the seaboard. The failure in the harvests here had been greatly exaggerated, and farmers were led to hoard their products. The cotton crop, part of which might have been relied upon in this emergency, was kept back by the dreadful ravages of the epidemic which prevailed in the vicinity of Southern ports. From New York, those who had contracted large foreign debts were obliged to send the specie, and this rapidly increased the evil. While this was going on at the seaboard, a worse panic began in the interior, and especially in the West and Northwest. In Ohio, Indiana, Illinois, Michigan, Wisconsin, Iowa and Missouri, and to some extent in the States on the south of the Ohio, a large circulation of bank notes, mostly of the free banks, had been obtained through expenditures for railroad purposes, and the general expansion of business. When the contraction began, this circulation came in rapidly, and found the banks wholly unprepared to meet it. As the difficulty became known, the excitement increased, and every effort made for relief only hightened the panic. All the banks which had balances at the East drew for them, and borrowed to the extent of their credit besides, while between twenty and thirty, perhaps more, of institutions which were really solvent, were compelled to suspend payment. A large number of private bankers were carried down in the

crash, and the distress became general. The public mind is now less excited, but the difficulty is not removed, and cannot well be until there be a revival of business, by large shipments of the produce now hoarded. At the South the evil has not, as yet, been so seriously felt. The planters have not been for many years in so secure a position, and if the crop of cotton now making shall sell briskly in Europe, they will escape to a great extent the panic which has elsewhere prevailed. During all this severe pressure in the money market, and general disturbance of public confidence, it is a cause for congratulation, that the mercantile community have stood the trial so nobly. Very few merchants previously in good credit have been obliged to suspend payments, and even among the weaker houses the failures have not been as numerous as might have been expected. The reason of this may be found in the increased supply of metallic currency remaining in the country. Over one hundred million dollars in gold coin have been added to the circulation of the United States, since the discovery of gold in California. Thus although the rates of interest have been high for nearly eighteen months, there has been no such scarcity of money as has been felt in former periods of commercial embarrassment. The impression now prevails that the convulsion has reached its hight, and that having passed the crisis affairs must now gradually mend.

The banks have been severely tried, but those in our large cities (with the exceptions before noticed.) have mostly stood the shock unmoved. In New York the deposits have been drawn down by country institutions, and thus the loans on call, reserved for such an emergency, have been called in, reducing the total under that head. The discounts have also been contracted to meet the drain of specie for export. We annex a continuation of the weekly averages of the New York city banks :

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We also annex a continuation of the weekly statement of the condition of the Boston banks:

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The following will show the latest returns of the banks of Massachusetts, not including the Boston banks noted above:

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How far the present excitement will go before it is permanently checked, it is now impossible to predict; but the people will ere long discover that they are the worst sufferers, and that any blows aimed at sound banks can but fall on the heads of the business community. While, therefore, all who have the gift of reason should exercise patience and forbearance toward the banks at such a crisis, the banks themselves should derive a useful lesson from the excitement.

Nearly all of the new banks which have been started in the West and Northwest within the last two years, have been originated by speculators and not by capitalists, and a great many of them have been managed in a way little calculated to inspire confidence. They have pushed out their circulation as far from home as possible, and some have tried various dodges, in the way of inaccessible locations and inconvenient coins, to evade or delay the redemption of their isBanks without capital can flourish only in prosperous times. They are, in fact, borrowers of money, and when the people ask them to pay up, they find the settlement exceedingly inconvenient. If banks, which are lenders of money, become so expanded as to risk their existence, what dependence can be placed upon banks which have no capital to lend? The recent shaking up of these institutions will sift out some of the weakest, and entitle those which sustain themselves to greater confidence.

sues.

Now that the Assay Office at New York is in full operation, the deposits at the Philadelphia mint have, of course, largely decreased; but the receipts from California have been augmented by the arrangement for weekly steamers.

DEPOSITS AND COINAGE AT PHILADELPHIA AND NEW ORLEANS MINTS.

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