it was allowable to file a bill after a decree had been recovered, but not executed, to carry it into effect after the death of the complainant, and the acquisition of his interest by another person. The same relief may be obtained by means of a supplemental complaint under the Code. (See Robinson agt. Brisbane, 7 Hun, 180.)

COMMISSION.

1. Irregularities in the return to a commission to examine a witness should be taken advantage of on motion before trial, when there is abundant time. (Becker agt. Winne, 7 Hun, 458.)

2. Consent to the issuing of a second commission to examine the same witness is not a suppression of the first. (Id.)

3. Where, on the trial, the defendant gave in evidence, the evidence taken under the second commission, and then the plaintiff gave in evidence, under objection, the evidence taken under the first, held, that the evidence under the first commission was not open to the objection, that the witness could not be contradicted by previous statements made by him, without his attention being first called to them. (Id.)

COMMON CARRIER.

1. The defendants carried cattle over their road for the plaintiffs, at less than one-half the usual rate, under a special contract with the plaintiffs for exemption from liability, as follows: "In consideration that the said company have, at our request, agreed to transport said stock at said reduced rate, we do hereby agree to, and do hereby release and discharge the said company from all claims, demands and liabilities, of every

kind and character whatsoever, for or on account of, or connected with, any damage or injury to, or loss of said stock, or any portion thereof, from whatsoever cause arising." The cattle were injured by reason of the negligence of an employe of the defendants, in leaving the door of the car, in which the stock were,

open.

Held, 1. That the agreement was on valid consideration, and embraced an injury through negligence, which was the cause of damage in this case.

2. That a common carrier in this state can limit his liability by contract even for gross negligence.

3. That although in Lockwood's Case (17 Wall., 357) the law is held otherwise, still, on this subject, the federal and state courts have co-ordinate jurisdiction, and the state courts can adhere to their own conclusions and decisions. (Mynard agt. Syracuse, B. & N. Y. R. R. Co., 7 Hun, 399.)

carry a cargo of freight for the voyage, the charter party is considered & mere affreightment sounding in covenant, and the freighter is not clothed with the character or legal responsibility of ownership. (Id.)

5. The defendants in this action were the owners, and victualled, manned and sailed a ship chartered by Moore & Co. for a voyage from San Francisco to New York. Held, that defendants were liable for baggage, received as freight on the vessel and lost. (Id.)

After a passenger has been removed

from a railroad car for a refusal to pay fare, he has no right to require the common carrier to take him back on his tendering the fare. (See Nelson agt. Long Island R. R. Co., 7 Hun, 140.)

COMPLAINT.

1. A complaint in an action for the foreclosure of a mortgage of real estate with an accompanying bond, cannot be verified by the attorney for the plaintiff on the ground that the action is upon a written instrument, for the payment of money only, which is in his possession. (Peyser agt. McCormack, ante, 205.)

2. Where such a complaint is thus verified by the attorney for the plaintiff, the service of an unverified answer is regular. (Id.)

See INSURANCE, Life.

Vogler agt, World Mutual Life
Ins. Co., ante, 301.

3. The case having been called for trial, the plaintiff proposed to discontinue, the defendant moved to dismiss the complaint. Held, that the complaint was properly dismissed. (Duncan agt. De Witt, 7 Hun, 184.)

to the latter of a certain amount of ice in one year, at a stipulated price, and the contract provides "that, in case of the inability of the defendants to lay up a full supply of ice, or other casualties, then the defendants are bound only to deliver to the plaintiffs such proportion of the above amount during such year as the quantity of ice laid up be to their full supply:"

And, under this clause, the defendants inform the plaintiffs that they had been unable to lay up a full supply of ice for that year, and, upon measurement of the whole amount, the plaintiffs were entitled only to twenty-nine thirtythirds per cent of the amount stipulated to be delivered as their proportion, and thereupon procured from the plaintiff's a defeasance, or modification of the contract, to that extent (the plaintiffs not then having the means of ascertaining, other than the defendants' statement, the correctness of such information),

When, in fact, the defendants had then their full and usual supply of ice, but claimed that the amount of new ice which defendants had received and laid in from two different sources was the supply to which the plaintiffs were limited, when no limitation of the quantity, nor the obtaining of it from any particular source, was mentioned in the agreement:

The defendants not only grossly violated their contract, but, in doing it, perpetrated a palpable fraud on the plaintiffs in procuring from them a modification of the contract accepting a portion of the ice, when they were justly entitled to their full amount. (Kemp agt. Knickerbocker Ice Co., ante, 31.)

2. The damages to which the plaintiffs are properly entitled to recover of the defendants for the breach of the contract is the difference between the contract-price and the market-price on the ice

not delivered under the contract at the time of the breach. (Id.)

3. In the contract was a clause, in substance, that the plaintiffs agree to pay, and the defendants to forfeit, one dollar for each ton of ice unaccepted or undelivered. This sum of one dollar thus agreed to be paid on the one part and forfeited on the other, must be regarded as a penalty for a forfeiture, and not as stipulated damages for a breach of the contract. (Id.)

4.

Where one party agreed with another to accept the drafts of a third person, in consideration that the one should purchase and pay for seed to be manufactured for their joint benefit, the seed to be purchased on the order of such third person, the forbidding by the party obligated, of such third person to draw the draft, the seed having been purchased and paid for, accompanied by a declaration, that he would not accept the drafts if drawn, is a breach of the contract. A positive declaration of an intention not to perform such contract is a breach thereof. (Wills agt. Simmonds, ante, 48.)

5. When, however, a person agreed to accept drafts drawn for the seed, after the same should have been delivered in Boston, his declaration that he would not accept, made while the seed was still afloat upon the sea, and before arrival, is not a breach, as there was a locus penitentiæ. (Id)

because fraud on the part of the defendants induced him to execute it, he must fail in his application, where it appears that he has acted upon the contract after the time he knew that defendants intended to hold him to the performance of its provisions. (Id.)

8. Nor can it be sustained on the ground of fraud, by reason of certain alleged promises made in behalf of the defendants, before the execution of the contract, that the defendants would not hold the plaintiff to the performance of certain stipulations in the written contract. Because a person is conclusively bound to know the law, that oral promises are merged

in a written contract made in reference to the same subject, and especially where both parties are on a level, with equal knowledge of the facts. (Id.)

9. The proposition that where a contract for work, labor and services has been procured by an illegal and unlawful combination to put up the price, the party for whom the work is done can, with full knowledge of such combination, require and demand its performance, voluntarily and with full knowledge pay the stipulated price, and then in an action recover his damages, which, of course, is the difference between the price which the contract calls for and the sum for which it

could have been let had such combination not existed, cannot be maintained. (People agt. Stephens, ante, 235.)

10. When the party complaining directs and requires the fulfillment of such contract, he stands before the court asking compensation for his own folly, and redress for a grievance which he has himself created, a redress to which he is not entitled, because he has himself directed such fulfillment. (Id.)

16.

Where a general engagement of a servant, at a salary of fifteen hundred dollars a year, payable weekly," unaffected by any other considerations growing out of the custom of the place, the conduct of the parties, or other extraneous evidence disclosing a contrary intention, constitutes a contract of hiring for the year. (Bleeker agt. Johnson, ante, 380.)

17. Where both defendants were present and took part in the contract of hiring the plaintiff, which the plaintiff testified was for one year at the rate of $1,500, payable week