The defective quality of the steel received by the plaintiffs was not obvious upon inspection, and as the fault was a latent one, their acceptance and use of it is not material, either upon the theory that their cause of action did not survive the acceptance, or that their conduct starts the presumption that it was a satisfactry article. Undoubtedly the plaintiffs could have discovered the latent defects in the steel here if they had made a thorough test by heating and plunging it. The question however is not what they could have discovered, but what they did discover, and upon that question the testimony is decisive. Acting upon the assumption that the defendant had sent them the article ordered, there was probably a relaxation of their usual vigilance in testing its quality, but not a scintilla of evidence to show or raise the inference that they were aware of its defects until after it had been used, and the vises in which it had been used had been sold in the market.

The damages sustained by the plaintiffs were such as it was reasonably to be anticipated by the parties would accrue, in view of the special use to which the plaintiffs were to apply the steel if it proved to be unfit for the purpose. They ensued as the natural and ordinary consequence of the use of the steel in the manner contemplated by both parties. Upon the authority of many analogous cases the plaintiffs were entitled to recover to the whole extent of their actual loss. Hadley v. Baxendale, 9 Exch. 341; Smeed v. Foord, 102 E. C. L. 612; Passinger v. Thorburn, 34 N. Y. 634; Flick v. Wetherbee, 20 Wis. 392; Van Wyck v. Allen, 69 N. Y. 62; S. C., 25 Am. Rep. 136; White v. Miller, 71 N. Y. 118; S. C., 27 Am. Rep. 13.

It is undeniably true that when a party who is entitled to the benefit of a contract can save himself from a serious loss arising from a breach of it by reasonable exertions, he will not be permitted to charge the delinqueut with damages which arise in consequence of his own inactivity. Warren v. Stoddart, 105 U. S. 229. Good faith and good logic require that he be confined to a recovery of those damages only that arise from the default of the other party. If the plaintiffs here had had any just reason to suppose that the steel they were about to use was unfit for the purpose, they would not be permitted to shut their eyes to the probable consequences, and when they proved disastrous to fall back upon the defendant for indemnity. But they are not to be deprived of compensation to the extent of their loss upon the theory that they owed any active duty of investigation and experiment to the defendant. They had a right to assume that the steel sent them was what the defendant undertook to send them, and no implication of negli gence on their part can be indulged, in the absence of testimony to indicate that its unfitness was observed before it was used. None was offered, and the case rested on the uncontradicted testimony of the employees of the plaintiffs, all of whom testified that no defects were noticed during the process of using the steel.

Upon the whole case the conclusion is reached un. hesitatingly that the defendant cannot fairly complain of the rulings at the trial. There were no disputed facts, and no disputable inferences from the facts shown upon which a verdict for the defendant, or a recovery of a less amount of damages, would have been warranted; and it would have been the duty of the court to set aside such a verdict if it had been found by the jury.

The motion for a new trial is denied.

ages for personal injuries alleged to have been caused by defendant's negligence, the evidence of experts as to future consequences which are expected to follow the injury is competent. To authorize such evidence' however the apprehended consequences must be such as in the ordinary course of nature are reasonably certain to ensue; consequences which are contingent, speculative or merely possible are not proper to be considered in estimating the damages, and may not be proved. Curtis v. Syracuse & Rochester R. R. Co., 18 N. Y. 541; Filer v. N. Y. C. & H. R. Co., 49 id. 45: Clark v. Brown, 18 Wend. 229; Lincoln v. Saratoga R. Co., 23 id. 425, 435. Strohm v. New York, L. E., etc., R. Co. Opinion by Rapallo, J. [Decided June 17, 1884.]

EMINENT DOMAIN-STATUTES STRICTLY CONSTRUED -FEE OR EASEMENT.-A statute authorizing the taking of private property against the owner's consent must be strictly construed; and while the property and the estate to be taken, whether an easement or a fee, and the purpose to which it is to be applied, may be designated in the statute, it must be by unequivocal words. The act providing for a supply of water in the village of Amsterdam (ch.101, L.1881, as amended by ch. 197, L. of 1882) authorizes and requires the taking of a fee in the lands required for the purposes of the act. As the commissioners in this case might purchase.so no doubt the Legislature might empower them to take by eminent domain, a right to enjoy a privilege in or out of the owner's estate which would not give them a right to enjoy the estate itself by exclusive or permanent occupation. Such a right, however acquired, would be an easement, and as no grant is pretended, the question before us concerns the proper construction of the statute (Brooklyn Park Com'rs v. Armstrong, 45 N. Y. 234), and the petition upon which the commissioners have undertaken to proceed. The act itself, inasmuch as it authorizes the taking of private property against the owner's consent, is to be strictly construed (Sweet v. Buffalo, N. Y. & Phila. Ry. Co., 79 N. Y. 293; Adams v. S. & W. R. Co., 10 id. 328), and while the property and the estate which is to be taken, whether easement or fee, and the purpose to which is is to be applied may be designated in the statute (People v. Smith, 21 N. Y. 595; Sweet v. Buffalo Ry. Co., supra; Brooklyn Park Com'rs v. Armstrong, supra), it must be by unequivocal words, and in pursuing it, all prescribed requirements must be strictly observed. Matter of N. Y. C. & II. R. R. Co., supra; Matter of Application of City of Buffalo, 78 N. Y. 362; Matter of Com'rs of Wash. Park, 52 id. 131. The owner may, if the Legislature so declares, be divested of the fee, although the public use is special, and not of necessity perpetual. Sweet v. Buffalo R. Co., supra. On the other hand, the entire estate need not be taken, but only that interest which is necessary to accomplish the prescribed purpose. 72 N. Y. 330. See also People v. Haines, 49 N. Y. 587; Matter of N. Y., etc., R. Co., 70 id. 191. Matter of Water Com'rs of Amsterdam. Opinion by Danforth, J.

[Decided June 24, 1884.]

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INSURANCE-POLICY-HOLDER-NO SET-OFF AGAINST RECEIVER.-At the time of the appointment of plaintiff as receiver of the A. M. L. Insurance Co., that company held certain claims against A.; and A. held two endowment policies not yet due issued by that company, by the terms of each of which it agreed to pay the sum insured to his wife in case of his death prior to the date specified; if he was living at that date, to pay the sum to him. In an action upon said claims, held, that A. was not entitled to set off the reserve value of the policies. It is true that they had a reserve value at the time when plaintiff was appointed receiver, and for that value they were entitled to their

the State under whose laws it is created or formed, and in which it has its corporate existence, and a suit by or against such corporation is therefore presumed to be a suit by or against citizens of the State which created it. O. & M. Ry. Co. v. Wheeler, 1 Black, 295, and cases there cited; Cowles v. Mercer Co., 7 Wall. 121; Railway Co. v. Whitton, 13 id. 283. And this rule is upon principle as applicable to corporations formed under the laws of a foreign country, as under the laws of any of the States of the Union, which are so far foreign to one another. A corporation formed under the laws of Great Britain is necessarily resident therein, and its members are presumed to be subjects thereof. The suit being between an alien on the one hand, and citizens of a State of this Union on the other, the court has jurisdiction of the controversy, let the questions involved therein be what they may. Art. 3, § 2, U. S. Const.; Act of 1875, § 1 (18 St. 470); Cummings v. National Bank, 101 U. S. 153. Cir. Ct., D. Oreg., Aug. 18, 1884. Dundee, etc., Investment Co. v. School Dist. No. 1. Opinion by Deady, J. AGENT TO SELL, CANNOT DEDICATE--STREET-VACATING-TITLE REVERTS TO ORIGINAL OWNER.

- (1) A power of attorney to sell and convey does not imply authority to the attorney to dedicate or give any part of the principal's property to the public; but when the power is expressly to dedicate, the owner is estopped to deny the act of his agent. (2) In the event of a street, previously dedicated to the city of Chicago, being vacated by an ordinance of the common council, such vacation to continue so long, and so long only, as the ground shall be used for railroad purposes, a subsequent resolution, declaring the vacation absolute, is sufficient to operate as a waiver by the city of its reserved rights in the premises, notwithstanding the fact that the latter resolution was passed by a majority rather than two-thirds of the aldermen elected. (3) When the city of Chicago assumes to vacate, even conditionally, a street previously dedicated to it loses all title with which it was vested by the act of platting. (4) By the vacating of the city of Chicago of a street previously dedicated to it, the title to the ground does not pass to the abutting lot-owner, but to the original owner of the land. Hyde Park v. Borden, 94 Ill. 26; Canal Trustees v. Havens, 11 id. 554. Cir. Ct., N. D. Ill., May, 1884. Wirt v. McEnery. Opinion by Blodgett, J.

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ignorant of the circumstances which render it voidable by the principal. Thompson v. Lockwood, 15 Johns. 256; Fisher v. Shattuck, 17 Pick. 252; RobinsonTM v. Gould, 11 Cush. 55; Bowman v. Hiller, 130 Mass. 153; Harris v. Carmody, 131 id. 51; Griffith v. Sitgreaves, 90 Penn. St. 161. The case of Hawes v. Marchant, 1 Curtis, 136, in this court, was not a case of duress at common law, but of oppression by the illegal exercise of official power in excess of statute authority and was decided upon that ground. (4) A mere allegation of fraud in general terms, without stating the facts upon which the charge rests, is insufficient. J'Anson v. Stuart, 1 Term R. 748, 753. Lord Chancellor Selbourne, Lord Hatherly and Lord Blackburn, in Wallingford v. Mutual Society, 5 App. Cas. 685, 697, 701, 709; 34 Eng. Rep. 65; Service v. Heermance, 2 Johns. 96; Brereton v. Hull, 1 Denio, 75; Weld v. Locke, 18 N. H. 141; Bell v. Lamprey, 52 id. 41; Phillips v. Potter, 7 R. I. 289, 300; Sterling v. Mercantile Ins. Co., 32 Penn. St. 75; Giles v. Williams, 3 Ala. 316; Hynson v. Duun, 5 Ark. 395; Hale v. West Virginia Co., 11 W. Va. 229; Capuro v. Builders' Ins. Co., 39 Cal. 123; Cole v. Joliet Opera House, 79 Ill. 96. Cir. Ct., D. R. I., Aug. 4, 1884. Hazard v. Griswold. Opinion by Gray, J. ([4] See 7 Am. Rep. 281.—Ed.) CONTRACT-ESTOPPEL WHETHER PRINCIPAL OR AGENT-ADEQUATE REMEDY AT LAW.-(1) He who contracts as a principal will not be permitted to show, in the absence of mistake, fraud or illegality, that he contracted as an agent in a controversy between himself and the other contracting party. Whart. Ag., §§ 410, 492. And the knowledge of the other contracting party of his real character does not affect the rule. Tayl. Ev., § 1054. The case is not like those where a part only of a verbal contract has been reduced to writing (Potter v. Hopkins, 25 Wend. 417; Batterman v. Pierce, 3 Hill, 171; Grierson v. Mason, 60 N. Y. 394). or where an agreement collateral to the written agreement is set up (Lindley v. Lacey, 17 C. B. [N. S.] 578; Chapin v. Dobson, 78 N. Y. 74; Crossman v. Fuller, 17 Pick. 171) which does not interfere with the terms of the written contract, though it may relate to the same subject-matter. The written contract here is of the very essence of the transaction between the parties, and creates the relation of vendor and purchaser between them. It fixes their mutual rights and obligations, and cannot be subverted by extrinsic evidence. As is stated by Denio, J., in Barry v. Ransom, 12 N. Y. 464, "the legal effect of a written contract is as much within the protection of the rule which forbids the introduction of parol evidence as its language." (2) While courts of equity have concurrent jurisdiction in all cases of fraud, they will not ordinarily exercise it, if there is a full and adequate remedy at law (Bisp. Eq., $200; Ambler v. Choteau, 107 U. S. 586), and the Federal courts are especially admonished not to entertain such cases. The statutory enactment (§ 16 of Judiciary Act, Rev. Stat., § 723), if only declaratory of the pre-existing law, is at least intended to emphasize the rule and impress it upon the attention of the court. New York Co. v. Memphis Water Co., 107 U. S. 205. It is the duty of the court to enforce this rule sua sponte. Oelrichs v. Spain, 15 Wall. 211; Sullivan v. Portland R. Co., 94 U. S. 806. Cir. Ct., S. D. N. Y., Aug. 11, 1884. White v. Boyce. Opinion by Wal

MASSACHUSETTS SUPREME JUDICIAL

COURT ABSTRACT.

CORPORATION-FRAUDULENT TRANSFER OF STOCKNEW CERTIFICATE ISSUED.-We see no principle upon which it can be held that by merely recording the

transfer and issuing a new certificate in accordance with it, the defendant is guilty of negligence which renders it liable to the estate for the stock or its value in any form of action. When a transfer of its stock is presented to a corporation, it is bound at its peril to see that it is a genuine transfer by one who has the power of disposition over the stock. Sewell v. Boston Water Power Co., 4 Allen, 277; Merriam v. Boston, Clinton & Fitchburg Railroad, 117 Mass. 241; Pratt v. Taunton Copper Co., 123 id. 110. If it issues a new certificate upon a forged or unauthorized transfer, the real owner retains his property in the stock, and the corporation may also be liable to a bona fide holder of the new certificate. But when a transfer, by one who has the full power to transfer, is presented, it has the right to act upon it, and it is not its duty to inquire into the purposes of the parties or to investigate the question whether the transaction is in good faith or is fraudulent. Rand, as executor, had the full power of disposing of this stock; there is nothing in the will restricting his general authority as executor as to it; he had the power and right to sell it or to pledge it for the purposes of the estate. The defendant took care to inform itself of the authority of Rand, and knew the relation of heir and legatee which Dillon sustained toward the estate. We do not think it was bound to go further and ascertain at its peril whether the transaction between Rand and Dillon was in fraud of the estate. Hutchins v. State Bank, 12 Metc. 421. Crocker v. Old Colony R. Co. Opinion by Morton, C. J.

[Decided July, 1884.]

INSOLVENCY-HOLDER OF COLLATERAL SECURITYPROOF OF CLAIM.-Where the creditor of the insolvent estate of a deceased person holds a mortgage or other collateral security for his debt, which he received from his debtor, he cannot be admitted to prove his debt except for the balance which may remain after deducting the value of the security (which value is first to be ascertained by sale or appraisal), unless he will surrender the security to go into the common fund for the payment of creditors. Amory v. Francis, 16 Mass. 308; Middlesex Bank v. Minot, 4 Metc. 325; Savage v. Winchester, 15 Gray, 453; Haverhill Association v. Cronin, 4 Allen, 141. But as this rule does not apply where the collateral security is furnished by a third person not primarily responsible for the debt, because if the security is first applied to the reduction of the debt there is eo instanti created a new debt of equal amount in favor of the surety whose property is thus expended, the claimant deems that it has here no proper application. The security in question was certainly furnished by the debtor; but the claimant's contention is that as it here appears that Seekell, previously to conveying in mortgage to the plaintiff, had made a quit-claim deed of the premises to Foster, reserving to himself and wife a life estate therein, although the record title was still in him, he had no right thus to furnish security to the claimant, and it must be dealt with as if it had been furnished by Foster. A proceeding to which Foster is not a party does not afford the means of determining whether as between her and Seekell the latter had a right to make this mortgage and furnish the security, nor whether the application to the reduction of this debt would or would not immediately create a new debt equal in amount thereto from the estate of Seekell to her. As the security was not furnished to the plaintiff by Foster, it has made no contract and is under no obligation to her, and it should avail itself of the security received from Seekell toward the satisfaction of its debt, or by a proper assignment and transfer of it to the administrator of Seekell's estate enable him to assert, as against Foster, the right of Seekell to do that

which he did. It is only in this mode that, as between the other creditors of Seekell and Foster, it can be determined whether he had such a right. The result to which we have arrived does not conflict with the decision in Wilson v. Bryant, 134 Mass. 291. Bristol Co. Savings Bank v. Woodward. Opinion by Devens, J. [Decided July, 1884.]

LIMITATIONS-NEW PROMISE-LETTER.-The general rules of law applicable to this case are well settled in this Commonwealth. As the plaintiff's original cause of action accrued more than six years before his suit was commenced, it is incumbent upon him, in answer to the defense of the statute of limitations, to prove a new promise in writing, either absolute or conditional, by the defendant within six years. Pub. Stats., ch. 197, § 15; Bangs v. Hall, 2 Pick. 368; Gardner v. Tudor, 8 id. 206; Bailey v. Crane, 21 id. 323; Penniman v. Rotch, 3 Metc. 216; Roscoe v. Hale, 7 Gray, 274; Weston v. Hodgkins, 136 Mass. 326, cited. The defendant in his letter does not deny or question the plaintiff's debt; by fair implication he admits it. But the letter does not contain any new promise to pay the debt. The plain object of the letter was not to make a new promise, but to refuse to make a new promise by giv ing a note as requested by the plaintiff. The only plausible ground for contending that the letter contains a new promise is founded upon the last sentence. Construing it in connection with the other facts of the letter, it cannot reasonably or by fair implication be inferred that the defendant intended by it to make a new promise or create a new obligation. The fact to be proved by the plaintiff is a new promise, and we are of opinion that the letter is insufficient for this pur pose. Krebs v. Olmstead. Opinion by Morton, C. J. [Decided Sept., 1884.]

SHIP AND SHIPPING-GENERAL AVERAGE-FAILURE TO MAKE ADJUSTMENT OF LOSS-FIRE EXTINGUISHED BY MUNICIPAL AUTHORITY.-The gist of the action negligence in delivering the cargo without an adjustment of the loss as a general average loss, and without taking security for the payment of the contributive shares. The fundamental question is, was this a general average loss? Although the steamship was at her wharf, the maritime adventure was not at an end; the ship was still bound to the cargo for its safe delivery, and the cotton, on account of which the suit has been brought, was undischarged. It must be considered that it is now established that damage to unburnt portions of the cargo, caused by water intentionally used to extinguish a fire in a ship, is of the nature of a general average loss. Whitecross Wire Co.v.Savill, 8 Q. B D. 653; Nelson v. Belmont, 21 N. Y. 36; Nimick v. Holmes, 25 Penn. St. 366. The defense is that the fire was extinguished, not by the master or by any person in charge of the steamship or her cargo, but by the chief engineer of the fire department of New Bedford under his authority to extinguish fires within the city, and that it was necessary to do what he did, not only for the purpose of saving the ship and cargo, but for preventing the spread of the fire to buildings and other property in the city. The right to extinguish fires in the city of New Bedford a part of the police power of the Commonwealth. It is clear that the chief engineer and his men were not employed to extinguish the fire by any person lawfully in charge of the steamship, but that they acted wholly under their public employment. To constitute a general av erage loss, there must be an intentional sacrifice of a part of the property for the purpose of saving the remainder from a common peril, or extraordinary expenditures must be incurred for the purpose of saving the property in perll. The authority to determine when a sacrifice shall be made and what property shall