the motion, charged a member of the bar with the crime of perjury? You also add that "in the argument of the appeal which took place in Albany last week (February 7th), the scandalous affidavits were directly ordered by the court to be restored to the record." This was intended as a statement that the court had passed upon the question whether the affidavits were scandalous and impertinent, and had reversed the decision of Judge Rosekrans. This statement would not have seemed strong had it appeared in the issue of the LAW JOURNAL of the date of February 11, as Mr. Shearman, without the authority of the court, had entered an order to that effect, which was published in the New York Tribune, with a statement that the decision of Judge Rosekrans was reversed. But when the order then entered by Mr. Shearman was brought to the notice of the court, it directed that order to be taken from the files, and an order to be entered in these words:

"At a general term of the supreme court of the state of New York, held in and for the third judicial department of said state, at the City Hall in the city of Albany, on the 13th day of February, A. D, 1871, present the Hon. Theodore Miller, presiding justice, the Hon. Platt Potter and the Hon. John M. Parker, associate justices. John W. Thompson and Mary T. De Forrest v. The Erie Railway Company. The defendant having made application that the affidavits, and parts of affidavits, struck out as scandalous and impertinent by Justice Rosekrans, may be filed and used as a part of the papers used on the motion made at special term, November 17, 1870, and inserted in the papers on appeal from the order of that date, and the plaintiff's consenting thereto on condition that the affidavit of Frank Thompson, sworn to September 30, 1870 (referred to in the affidavit of T. G. Shearman, adjudged to be struck out), also be considered as a part of the said motion papers on such appeal. Ordered, that all of said affidavits be put upon the files of the court as part of the papers in this matter, and this order is made without passing upon the question whether said affidavits were scandalous or impertinent. Ordered, that the order herein entered at general term by the defendant's attorney touching said affidavits, and dated February 7, 1871, be canceled and removed from the files."

"JOHN MCEWEN, Clerk."

All the questions involved in the motion before Judge Rosekrans, including the propriety of the affidavits struck out by him, are still under advisement by the general term. This last order of the court was published in the New York Tribune on the 15th of February, and several papers which had published the erroneous statement that Judge Rosekrans, order had been reversed have retracted such statement.

I presume this last order, and these retractions, had not come to your knowledge when you published the article in the issue of the 18th inst. Ought not a correction to be made of that article in the ALBANY LAW JOURNAL?

Yours respectfully,

FRANK THOMPSON.

BOOK NOTICES.

The Law of Wills. Two vols. Part II. Devises, Legacies and Testamentary Trusts; their construction, discharge and mode of enforcement. Part III. The Probate of Wills, the Duties of Executors, Administrators and other Testamentary Trustees, and the Settlement and Distribution of Estates, with the Law of Trusts. By Isaac F. Redfield, LL.D. Second edition. Boston: Little, Brown & Company. 1870.

The second part of Judge Redfield's treatise on the Law of Wills was given to the profession some four years ago, and the fact that a second edition is so soon demanded is a flattering indication of the favor with which it was received. Although, nominally, only a second edition, so much has been added as to make this, in some respects, a new work. The chapters upon the rights of widows

and upon guardianship are entirely new, while many of the subjects before treated have been materially amplified, both in the text and by notes. Besides these additions, there is a noticeable improvement in some parts of that which is old-the errors of omission and commission having been very considerably reduced in numbers.

Many of the subjects treated by Judge Redfield are among the most difficult, as well as important, that engage the attention of a lawyer. Legacies and devises; charitable uses and trusts; the settlement and discharge of estates; rights of widows, and the duties of executors and administrators, and other testamentary trustees, are topics of continual recurrence, and involve some of the most perplexing questions and distinctions known to the law. Most of these subjects have been treated by Roper, Hill, Williams, Jarman and others, but Judge Redfield, having the advantage of their methods and material, and of the more recent expositions of the courts, has given us a work 'surpassing in excellence the works of either or all of those authors. Perhaps the most striking features of the work are its richness in the citation of cases, and the fidelity and minuteness with which it deals with some of the drier and more troublesome questions-questions which other works have either passed in silence or vaguely generalized about. The chapter on the law of trusts is, as the author admits, little more than an outline, and it occurs to us that it would have been as well to have omitted it altogether. Although closely connected with the subject, it is neither necessarily nor properly a subject belonging to a treatise on wills, especially where, as in this work, the subject of testamentary trusts is elsewhere treated. But we shall not regret this part of the work if it lead, as the preface seems to promise it will, the learned author to the preparation of an extended and exhaustive treatise on the law of trusts. We know of no important branch of the law on which there is so much needed a thorough and reliable work, and we know of no one more competent to perform the task than Judge Redfield.

We are glad to notice that the books before us contain comparatively little of that "moralizing" which has been such a marked and unpleasant feature in some of the author's other works. The profession buy text books to learn from them what the law is, as the courts and the legislature have made it, and not the author's views however learned and sound -as to what it ought to be.

The Attorney's Business Docket, with a separate envelope for the papers in each case. Springfield, Ill., E. L. and W. L. Gross: New York, Baker, Voorhis & Co., 1871. This business docket will be found very useful in a lawyer's office, affording, as the publishers say, “a cheap, simple and easy means of placing on record for instant reference, and without posting, all the business transactions of an attorney, agent, collector or real estate dealer, keeping all the entries in one book, and each case by itself." The plan of it is very good, and it is well gotten up. With each docket is a number of large and substantial envelopes, properly indorsed, for containing the papers in each suit.

The Bankrupt Law of the United States, with the Rules and Forms in Bankruptcy, and Notes of Decisions, By Frederick C. Brightly, Esq., author of the Federal Digest," "United States Digest," etc. Second edition. Philadelphia: King & Brothers, 1871.

Of writing many books on the bankrupt law there seems to be no end. Some half dozen works are now extant, and others, we understand, are in preparation; but all of them, whatever their form or title, are nothing more than mere editions of the act, with explanatory notes more or less copious.

The compiler of the work before us "makes no pretensions to the authorship of a treatise on the bankrupt

law." His only claim is that the annotations are full to the present time; and this claim, we are inclined to say, from the examination that we have been able to make, is well founded. The general orders in bankruptcy, the rules in bankruptcy of the southern district of New York, and the forms adopted for practice, are also included. In an appendix Mr. Brightly has given the statutes of 1800 and 1841, which will frequently be found valuable for reference in connection with the decisions made under them on questions similar to those arising under the present law.

A Digest of the Decisions of the Federal Court, from the organization of the government to the present time. By Frederick C. Brightly, Esq., of the Philadelphia Bar; author of "The United States Digest," etc. Vol. II. Philadelphia, Kay & Brother, 1870.

The first volume of Mr. Brightly's digest of the decisions of the United States court was published in 1868, and has met with a very favorable reception. The present volume contains, in a compass of something over two hundred pages, the gist of the decisions since made. It has been well said, that now-a-days a knowledge of the law is not so essential as a knowledge of the place where you can find the law. The fact that the decision of many of the inferior federal courts are never published in regular series of reports, but are made public only through the medium of legal papers and periodicals, renders a digest, such as the present, of peculiar value. The same fact also would seem to require that the abstracts of such decisions should be unusually full, as most of the profession will never be able to refer to the opinions themselves. In this regard Mr. Brightly's digest is open to criticism, as his avowed object has been to condense as closely as possible. We also notice a remarkable paucity of cross references a very grave short-coming in any digest. Otherwise the work seems to be carefully done, and the book can hardly fail to prove useful.

Abbott's Practice Reports. Vol. IX, No. 3.

Howard's Practice Reports. Vol. XL, No. 3.

PRECEDENTS.-The principle of adopting precedent as the guide of judicial decisions, gives stability and vigor to the administration of justice. Speculative wisdom never can devise a code capable of providing for the infinite variety of cases arising out of the transactions of even the most simple state of society. A system of jurisprudence founded on precedents admits the engrafting of other precedents as they arise; and this will form the nearest approach to a perfect code; because, although no two cases are ever exactly similar, still no one new case ever happens which has not had a forerunner, in some earlier case, so nearly analogous to it, as to afford a rational rule to the tribunal.-Palgrave.

TERMS OF COURT FOR FEBRUARY.

SPECIAL TERMS AND CIRCUITS. 4th Tuesday, circuit and oyer and terminer, Malone; James.

4th Tuesday, circuit and oyer and terminer, Sandy Hill. Last Monday, circuit and oyer and terminer, Chemung; Murray.

Last Monday, circuit and oyer and terminer, Tioga; Boardman.

Last Monday, special term, Monroe; E. D. Smith.
Last Tuesday, special term, Albany.

LEGAL NEWS.

Col. John Baxter has obtained a judgment of $27,000 for libel against the Knoxville Whig.

The bar of New Orleans promise at least $3,500 for the fund for the daughters of the late Chief Justice Taney. The Massachusetts senate has passed a bill making bailable the offenses of rape and arson.

Judge O. C. Wightman, of Burlington, Iowa, hanged himself in his office a few days ago.

Colonel John S. Mosby, of guerilla warfare fame, has been admitted to practice at the bar of the United States circuit court, Richmond.

A Savannah paper is very confident that Hon. Benj. H. Hill, of Georgia, is to succeed Mr. Akerman as attorneygeneral.

The judiciary committee of the United States house of representatives have reported a bill dividing Kentucky into two judicial districts.

A bill is before the legislature of Wisconsin authorizing the admission of both a husband and his wife as witnesses in all cases wherein they are interested parties.

The Massachusetts legislative committee on prison reform have agreed to report in favor of sending a commission to the International Prison Reform Congress, proposed to be held in London in 1872.

The Maryland court of appeals has decided that a man who marries a minor becomes responsible for any debts which might have been enforced against her, notwithstanding her minority.

District Attorney Pearson, of Pittsburg, having sought the position of major-general of the militia, Attorney General Brewster has given an opinion that the offices of the district attorney and major-general of the militia are incompatible.

A dispatch from Athens announces that the court of appeals has confirmed the judgment against the accomplices of the bandits who perpetrated the Marathon massacre, and that the Englishman Noel will therefore be placed on trial at the assizes for murder.

Gen. J. A. Garfield has written a letter to Judge Paine, of Cleveland, Ohio, congratulating him on his splendid charge to the jury at the close of the Galentine case, and telling him that the whole country owes him a debt of gratitude for brushing away the wicked absurdity which has lately been palmed off on the country as law, on the subject of insanity.

A Georgia lawyer refused an appointment as district attorney, the other day, because the judge is a colored man, and his letter has brought out a reply from Gov. Bullock, who publishes the lawyer's petition for the very office he now so indignantly spurns, and also a letter from the colored judge, inclosed by him, indorsing the appli cation.

A curious lawsuit has just been commenced against the Belleville and Southern Illinois railroad. A lady, who was shortly expecting an addition to her family, was traveling over that road, and was so jostled by the roughness of the road that the event occurred much sooner than had been expected. She lays her damages at $10,000.

Chief Justice Bellows, of New Hampshire, in opening court at Newport, recently, spoke very decidedly against the means used to swindle money out of persons who oftimes cannot afford to give it, at church fairs and other gatherings, such as post-offices, lotteries, grab-bags, guesscakes, etc., with the intent to raise funds for disseminating the gospel. The judge said that all these are recognized in law as indictable offenses, and the officers failed to do their duty were they suffered to pass unnoticed.

TO SUBSCRIBERS. The volumes of the LAW JOURNAL are strongly and uniformly bound at this office for $1.50 full sheep, and $1 half sheep.

The Albany Law Journal.

ALBANY, MARCH 4, 1871.

THE LAW OF EXTRINSIC EVIDENCE.

I.

The rule excluding extrinsic evidence in the construction of written instruments is applicable only to controversies between the parties to the instrument and their privies, and does not apply to controversies between third persons, or between one of the parties and a third person.

that the controversy was between third parties, or between one of the parties to the note and a stranger; but was introduced for the purpose of making liable, as a party to the note, one who did not appear on its face to be a party to it. The effect of the extrinsic evidence was to create a contract as against another party than the party apparently bound. The court in effect held that a promissory note cannot be constructed by parol, in the absence of any ambiguity which parol evidence would be competent, in the fulfillment of its true office, to explain.

This principle was recognized, although perhaps not necessarily involved, in Whitbeck v. Whitbeck, 9 Cowen, 270 (1828). "Parol evidence to show the true consideration of the deed or assignment from Peter to John Whitbeck was properly received. The plaintiff was not a party, nor, in strictness, I apprehend, a privy to that conveyance; and the rule which prohibits the contradiction by parol of what is expressed in a deed, even if applicable to the con

rule:

In Overseers of Berlin v. Overseers of Norwich, 10 Johns. 229 (1813), the question was the settlement of a pauper. The court say: "The purchase of an estate in a town will not gain a settlement for any longer time than the purchaser inhabits such estate, unless the consideration for the purchase amounts to $75 bona fide paid. The overseers of the poor of the town of New Berlin offered to prove, that, though the pauper had purchased a lot in that town for the consideration of $250, and had mortgaged the lot back to secure the payment of $200, yet, in fact, he had not paid any part of the consideration, and the evidence was rejected. The overseers of New Berlin were clearly entitled to show this fact, and were not estopped from showing it by the deed or mortgage, to which they were not parties. Such a conclusion would be unjust, by enabling a person at any time to procure a settlement by a purchase without payment, and so to defeat the provision in the act. It is a general rule that parties and privies are estopped from contradicting a written agreement by parol proof, but the rule does not extend to strangers, who have an interest in investigating and knowing the real truth of the case." The principle of our proposition is thus clearly recognized, although it seems that the evidence offered was competent even between the parties, as explanatory only of the consideration.

In Stackpole v. Arnold, 11 Mass. 27 (1814), referred to by Senator Verplanck in Evans v. Wells, the declaration averred that the defendant made the several promissory notes declared on, by Cook & Foster in one instance, and by Zebedee Cook in the others, as his agent; the notes were signed simply Cook & Foster, and Zebedee Cook; no hint of agency appeared in the notes; evidence that they were really given for the defendant having been admitted, and a recovery had against the defendant, a new trial was granted on the ground that such evidence was improper.

This is the leading case on the doctrine which it lays down, but there seems to be nothing in it inconsistent with the doctrine of our proposition. The extrinsic evidence was not introduced on the theory |

privies to the deed. The rule is founded on the principle that a party is estopped from impeaching or contradicting his deed. But the rule does not apply to the acknowledgment of consideration paid, in a deed, even as between the parties."

The rule was again recognized in Krider v. Lafferty 1 Whart. 314 (1835), in which Kennedy, J., remarks: "It cannot affect third persons, who, if it were otherwise, might be prejudiced by things recited in the writings, contrary to the truth, through the ignorance, carelessness or fraud of the parties; and who, therefore, ought not to be precluded from proving the truth, however contradictory to the written instruments of others."

In Johnson v. Blackman, 11 Conn. 342 (1836), A., the payee of a note made jointly and severally by C. and D., assigned it to B., with this indorsement: "I assign the within note to B. ;" and received another note of the same amount from B., who was executor of C. In an action on the former note against D., it was claimed that this note was paid by the note of B.; and evidence that the indorsement was not made until after the note in question was thus paid, although, at the same interview, was held competent, on the principle laid down in our proposition, the court citing Reading v. Weston, and Overseers of New Berlin v. Overseers of Norwich,

In Evans v. Wells, 22 Wend. 345 (1839), in the court of errors, Senator Verplanck remarks: "The written instrument is held to merge all former conversations, negotiations, and explanations between the parties privy to it, but it should not, and does not, control the rights of either party against another person responsible on the same account, with whom no written agreement has been directly made. The writing is to such third person a negotiation inter alios, and can only be received as inferential evidence touching his liabilities, not as exclusive of all other testimony. The law will not permit parties to contradict, by external evidence, their own written contract. This is a sound principle of legal policy, but surely it does not follow from this, that the written contract between A. and B., which is conclusive as to them, must be of necessity so as to the proof of any rights or claims of A. against C., merely because they grow out of the same

business. Numerous as are the authorities and decisions for the exclusion of parol evidence, offered in order to discharge the liability of persons bound by their own written agreement, I have found but one (11 Mass. 27), which extends the doctrine so as to make the written evidence of one man's liability on a contract, exclusive of all parol testimony of the liability of another on the same matter."

Woodman v. Eastman, 10 N. H. 359 (1839), was an action against the indorser of a promissory note, signed by John Averill, dated July 25, 1835, payable in one year. On the 25th of August, 1836, the plaintiff received from Averill, the maker, a note and draft, the note being taken in part payment, and agreed in writing that the draft, when paid — it having ninety days to run-should be in satisfaction of the first note, and that he would then deliver it up to Averill; otherwise the said note to remain in full force." The defendant introduced, under objection, the testimony of Averill, as to the conversations which took place between Averill and the plaintiff at the time of the execution of the agreement, to the effect that the plaintiff agreed not to attempt to enforce the note in suit until the draft fell due. In respect to this the court say, at page 365: “Nor is the evidence of Averill objectionable because it goes to prove an agreement which is not contained in the written receipt or agreement signed by the plaintiff, when he received the note and draft on the 25th of August. So far as it shows an agreement for delay, it does not contradict any thing in that instrument, but is entirely consistent with it. But if it had contradicted it, the defendant would not be precluded, by any writing between the plaintiff and Averill, from proving all the terms of the agreement. The rule that evidence cannot be admitted to contradict or add to the terms of a written instrument, has no application to third persons who are not parties to the written agreement."

Reynolds v. Magness, 2 Iredell, 30 (1841), was an action against Benjamin Magness' executors to recover money paid as bail for Samuel Magness, against which Benjamin had indemnified the plaintiff. For the purpose of showing that the plaintiff had paid these moneys, he produced a bill of sale of certain negroes, and a deed of a tract of land executed to the surviving administrator of William Magness, which the parties said was to pay up an execution for which the present plaintiff was bound as bail for Samuel Magness, and the plaintiff said it was to enable him to recover the amount back from his principal, Samuel Magness. For the purpose of avoiding the effect of the statute of limitations, the plaintiff offered to prove that said deed and bill were only a mortgage. The defendant objected that the plaintiff was estopped. Judge Gaston remarked: "It is true, that if a controversy had arisen between the parties to these conveyances, and the bargainee had denied the parol agreement, the plaintiff would have found serious, perhaps insuperable, difficulty in establishing it. The rule of evidence, that where the parties to a contract have reduced their agreement to writing, parol evidence shall not be received to alter or contradict the written instrument, applies to controversies between the parties, and those claiming under them. The parties have constituted the written agreement to be the authentic memorial of their contract, and, because of

this compact, the instrument must be taken, as between them, to speak the truth, and the whole truth, in relation to its subject-matter. But strangers have not assented to this compact, and therefore are not bound by it. Where their rights are concerned, they are at liberty to show that the written instrument does not disclose the full or true character of the transaction. And if they be thus at liberty, when contending with a party to the transaction, he must be equally free when contending with them. Both must be bound by this conventional law or neither."

Fuller v. Acker, 1 Hill, 473 (1841), was an action of replevin for wrongfully taking household furniture, claimed by the plaintiff under a mortgage from William Wagstaff. The mortgage was dated March 11, 1837, and was conditioned to pay by "the tenth of March, one thousand eight hundred and thirty." It had been renewed for three years. The defendant, who was sheriff, had seized the property under execution against Wagstaff. On the trial, Wagstaff was allowed to testify that in drawing the mortgage an error was committed, the time of payment being intended to be March 10, 1838, the word "eight" being omitted by mistake. On review, the court held the evidence properly admitted, Cowen, J. remarking,

66

on questions of fraud like this, which is inter alios, the objection of an estoppel does not apply, as it would if the litigation were between the immediate parties." In Taylor v. Baldwin, 10 Barb. 587 (1850), it was held, that although, at a trial at law, the parties to a deed could not vary its terms by showing that it was intended as a mortgage, yet the rule was different as to strangers; and that a stranger "was not precluded from inquiring into the true character of the transaction, provided he has an interest in the subjectmatter, which may be injuriously, if not fraudulently, affected if the truth cannot be shown. *** To persons thus situated, the law has, in certain cases, allowed the right to show, by parol, the true character of a transaction in which the parties and their privies would have been estopped by their deed or other written instrument. The exception in favor of strangers, is to prevent a fraudulent operation of the instrument upon their rights. Reading v. Weston, 8 Conn. 121. This is the extent to which the authorities relied upon by the counsel go, and I have seen none which extends the principle beyond this."

In Furbush v. Goodwin, 25 N. H. 446 (1852), parol evidence was received to contradict an instrument claimed on one hand to be a contract, and on the other to be a mere receipt. The court held such evidence admissible in either event. They said: "But if it might be supposed that the receipt in question was in truth a contract between the parties to it, and as such, as between them, could not admit of the explanation offered in this case, still as it is not a contract between the parties to this suit, upon that ground it was admissible. The rule excluding explanatory parol evidence applies only in a case where the contract to be explained is between the parties to the suit, and not where it is between other parties."

In Eaton v. Alger, 2 Keyes, 41, 45 (1865), C. transferred to E. a note payable to bearer, drawn by J. P. A., and indorsed by W. S. A., and took E.'s receipt for it, agreeing "to account for the same on demand." In an action by E. against the maker and indorser, the

receipt was introduced as evidence to establish the position that title to the note was not in the plaintiff, and that it was a contract of bailment, and testimony both of C. and E. offered to prove the nature of the contract and the consideration of the transfer was excluded. On appeal, this was held erroneous. The court say: "The general rule is, that estoppels are mutual. Parties to an instrument are mutually precluded from varying it by parol; but the rule does not apply to persons who are neither parties nor privies to the contract, and whose rights are not affected thereby. It cannot be doubted, that, if the rights of the defendants were injuriously affected by the receipt, they could contradict it by parol; and, therefore, the parties to the receipt are not estopped as to them, and in an action with them may show the real agreement by parol."

Reading v. Weston, 8 Conn. 117 (1830), at first sight seems to maintain a doctrine in conflict with our proposition, but, on closer examination, it will be seen to be in harmony with it. The action was brought by the inhabitants of the town of Reading against the inhabitants of the town of Weston, for the support of the wife and minor children of Samuel Darling. The paupers derived their settlement from Lucy Darling, the mother of Samuel Darling. The defendants claimed that in March, 1808, she became the owner of a piece of land in the town of Reading, of the value of $800, by deed, absolute on its face, from Joseph Burr. Simultaneously with the delivery of the deed, she executed to Burr a writing, agreeing, if within three years he should pay her $800 and interest, to surrender the deed; otherwise he forfeited all claim. Evidence of this agreement was offered, but rejected. Verdict for defendants. A new trial was denied. Chief Justice Hosmer says: "Undoubtedly there have been determinations, some of which have been cited, proving that a stranger is not estopped by a written agreement; but that he may produce parol testimony to prevent a fraudulent operation of it upon his interests. The King v. Scammonden, 3 Term, 474; New Berlin v. Norwich, 10 Johns. 229; 3 Stark. Ev. 1018, 1052. But this principle has no application to the present case. The plaintiffs have not suggested that there was any fraud contemplated and practiced on them. The pretense would have been very strange, unless it were followed up by explicit testimony to this effect. The inhabitancy of Lucy Darling, prima facie, with property sufficient to purchase a farm of the value of $800, was a benefit to the plaintiffs, and not a prejudice; and all our towns would be pleased in this manner to extend their population." It will thus be seen that the principle of our proposition was not denied, but it was held not applicable to this particular case.

Tyler v. Taylor, 8 Barb. 585 (1850), on a cursory glance might also be deemed in conflict with our proposition; the syllabus conveys that idea; but, in reality, it is not. The dispute was between the assignee of one chattel mortgagee and the assignees of other mortgagees in the same mortgage, as to the ownership of some of the mortgaged property. The parties to the suit were thus not strangers, but privies to the original parties. Parol evidence offered by the plaintiff to show that the defendant's assignment was intended only as a release was properly

excluded. Viewed in the light of these facts, there is nothing in the opinion of the court in conflict with our doctrine: "I apprehend tha. the principle of those cases cannot be applied to this, without also offering to show that the assignment was, by fraud, made to read differently from the actual agreement between the parties, to accomplish some covert pur pose. It cannot be that when I have purchased a mortgage, and the assignment expresses the contract of purchase, it may be shown by parol that the assignment was intended merely to discharge the mortgage, without showing some other facts than the mere error in the assignment, and without any offer to show that the error was fraudulent. Such a doctrine would be alarming, and would leave the holders of such securities at the mercy of their debtors. In this case the offer was not made by the plaintiff claiming to be a stranger," etc. That is to say, the writing was binding on the plaintiff - because he was not a stranger unless it could be shown to be fraudulent.

IRVING BROWNE.

LIABILITY OF CARRIERS FOR WRONG

DELIVERY.

-

The question of the liability of a carrier for the delivery of goods to a wrong person is one of great practical importance, and one which has derived additional interest from a couple of recent and apparently adverse decisions on the subject. In the recent edition, by Mr. Bennett, of Story on Bailments, at page 507, the following principle is laid down: "Care must be taken to deliver the goods to the right person as well as at the proper time, and at the proper place. For if delivery be by the carrier to a wrong person, although it may have been made by his own innocent mistake, or by his being imposed upon, he will be liable to the true owner for the whole value of the goods so lost. Indeed, such a wrongful delivery is, in the common law, treated as a conversion of the property."

The first case cited as an authority for this proposition is the leading case of Stephenson v. Hart, 4 Bing. 476. In that case, the plaintiff, having been imposed upon by a swindler, consigned a box at Birmingham by the defendants, as common carriers, to "J. West, 27 Great Winchester street, London." The defendants found, on inquiry at the address, that no such person resided there; but upon receiving a letter some ten days after, signed "J. West," requesting that the box might be forwarded to a public-house at St. Albans, they delivered it there to a person calling himself West, who showed that he had a knowledge of the contents of the box; that person having disappeared, the defendants were held liable to the plaintiff in an action of trover. The decision was placed mainly on the ground that the defendants had not delivered the box according to the due course of their business and duty; that, upon failing to find the consignee at the place addressed, they had no right to deliver it at another place, without further instru tions from the consignor.

Burrough, J., in the course of his opirion, said: "At the outset, no doubt, the contract was between the carrier and the consignee; but when it was discovered that no such person as the consignee was to