complies with his directions, and exercises ordinary care over the goods until they are delivered to the person or line so pointed out, his responsibility ends with this delivery, in the same manner as it would if he delivered the goods into the hands of the owner.

This question of delivery has a very great importance in another point of view; and that is, as it bears upon the honesty, and therefore the validity, of the transaction. As the owner of goods ought to have them in his possession, and as a transfer of possession usually does, and always should, accompany a sale, the want of this transfer is an indication, more or less strong, that the sale is not a real one, but a mere cover. The law on this subject has fluctuated considerably; and is different in different parts of the country. Generally, and as the prevailing rule, it may be stated thus. Delivery is not essential to a sale at common law; but if there is no delivery, and a third party, without knowledge of the previous sale, purchases the same thing from the seller, he gains an equally valid title with the first buyer; and if he completes this title by acquiring possession of the thing before the other, he can hold it against the other. So, also, unless delivery or possession accompany the transfer of the right of property, the things sold are subject to attachment by the creditors of the seller. And if the sale be completed, and nevertheless no change of possession takes place, and there is no certain and adequate cause or justification of the want or delay of this change of possession, the transaction will be regarded as fraudulent and void in favor of a third party, who, either by purchase or by attachment, acquires the property in good faith, and without a knowledge of the former sale. In this country the rules of law on this point are hardly so strict as in England; and, generally, fraud would not be absolutely inferred from the want of change of possession, although it would be so inferred there. Indeed, in that country it seems to be hardly open to explanation; but here, this circumstance might be explained, and if shown to be perfectly consistent with honesty, and to have occurred for good reasons, and especially if the delay in taking possession was brief, the title of the first buyer would be respected.

If goods are sold in a shop or store, separated, and weighed or numbered if that be necessary, and put into a parcel, or otherwise made ready for delivery to the buyer, in his presence, and he request the seller to keep the goods for a time for him, this is so far a delivery as to vest the property in the goods in the buyer, and the seller becomes the baiiee of the buyer. And if the goods are lost while thus in the keeping of the seller, without his fault, it is the loss of the buyer. (In law the word bail means "to deliver." Thus a "bailor" is one who delivers a thing to another; the "bailee" is the party to whom it is delivered; and "bailment " is the delivery. The "bail" of a party who is arrested, is he or they to whom the arrested person is given up, on their agreement that he shall be forthcoming when required by law.)

In a contract of sale there is sometimes a clause providing that a mistake in description, or a deficiency in quality or quantity, shall not avoid the sale, but only give the buyer a right to deduction or compensation. But if the mistake or defect be great and substantial, and affects materially the availability of the thing for the purpose for which it was bought, the sale is nevertheless void, for the thing sold is not that which was to have been sold.

If the buyer knowingly receives goods so deficient or so different from

what they should have been that he might have refused them, he will be held to have waived the objection, and to be liable for the whole price; unless he can show a good reason for not returning them, as in the case of materials innocently used before discovery of the defects, or the like. Thus, where a man bought a chandelier warranted sufficient to light a certain room, and kept it six months, the court did not permit him to return it and refuse payment, although it was not what it had been warranted to be. Sometimes two or three months, or even less, is held too long a keeping to permit a subsequent return. But though the buyer cannot return the thing, yet, when the price is demanded, he may set off whatever damages he has sustained by the seller's breach of contract, and the seller can recover only the value to the buyer of the goods sold, even if that be nothing. But a long delay or silence may imply a waiver of even this right on the part of the buyer.

One who orders many things at one time, and by one bargain, may, generally, refuse to receive a part without the rest; but if he accepts any part, he severs that part from the rest, and rebuts (or removes) the presumption that it was an entire contract; the buyer will then be held as having given a separate order for each thing, or part, and as therefore bound to receive such other parts as are tendered, unless some distinct reason for refusal attaches to them. If many several things are bought at one auction, but by different bids, and especially if the name of the buyer be marked against each, there is a separate sale to him of each one, and it is independent of the others; so that he must take and pay for any one or more, although the others are not what they should be, or cannot be had. If, however, it could be shown by the nature of the case, or by evidence, that the things were so connected that one was bought entirely for the sake of the other, he would not be obliged to take the one unless he could have the other. This rule applies also when the things sold are lots of land. Indeed, the general rule may be stated thus. The question whether it is one contract, so that the buyer shall not be bound to receive any part unless the whole be tendered to him, will be deter mined by ascertaining from all the facts whether the parts so belong together that it may reasonably be supposed that none would have been purchased if the whole had not been purchased, or if any part could not have been purchased.

The buyer may have, by the terms of the bargain, the right of redelivery. For sales are sometimes made upon the agreement that the purchaser may return the goods within a fixed, or within a reasonable time. He may have this right without any condition, and then has only to exercise it at his discretion. But he may have the right to return the thing bought, only if it turns out to have, or not to have, certain qualities; or only upon the happening of a certain event. In such case the burden of proof is on him to show that the circumstances exist which are necessary to give him this right. In either case the property vests in the buyer at once, as in ordinary sales; but subject to the right of return given him by the agreement. If he does not exercise his right within the agreed time, or within a reasonable time if none be agreed upon, the right is wholly lost, the sale becomes absolute, and the price of the goods may be recovered in an action for goods sold and delivered.

OF CONTRACTS VOID FOR ILLEGALITY OR FRAUD.

As the law will not compel or require any one to do that which it forbids him to do, no contract can be enforced at law which is tainted with illegality. It may, however, be necessary to consider whether the contract be entire or separable, and whether it is wholly or partially illegal. If the whole consideration, or any part of the consideration, be illegal, the promise founded upon it is void, whether the promise is legal or not. But if the consideration is legal, and the promise is in part legal and in part illegal, it is valid for the legal part and may be enforced for that part. Thus, if a master of a vessel agreed to smuggle goods, and in consideration of his doing so the owner promised to pay him one-fourth of his profits, and also to advance twenty dollars a month to his family during a certain time, the master could enforce no part of this promise, and recover no damages for any breach of it, because the consideration is illegal. But if, for one thousand dollars paid, the receiver agreed to sell and deliver a quantity of merchandise, and also to assist the buyer in some contemplated fraud, he would be bound to sell and deliver the goods, because the consideration was legal, and this part of the promise was legal, but not to assist in the fraud, because this part of the promise is illegal. We mean to say, that if a whole promise, or any part of a promise that cannot be severed into substantial and independent parts, is illegal, the whole promise is void. But if the consideration is legal, and the promise is legal in part and illegal in part, and that part of the promise which is legal can be severed from that part which is illegal, and there be a substantial promise having a value of its own, this legal part can be enforced. For further remarks upon this subject, however, we refer to the previous article on Consideration.

Formerly, an agreement to sell at a future day goods which the promisor had not now, and had not contracted to buy, and had no notice or expectation of receiving by consignment, was considered open to the objection that it was merely a wager, and therefore void. But later cases have admitted it to be a valid contract.

We have already said that fraud vitiates and avoids every contract and every transaction. Hence, a wilfully false representation by which a sale is effected; or a purchase of goods with the design of not paying for them; or hindering others from bidding at auction by wrongful means; or selling at auction, and providing by-bidders who should run the thing up fraudulently; or selling "with all faults," and then purposely concealing and disguising them, as when a man advertised a ship for sale at auction "with all faults," but purposely put her in a situation where an important fault could not be easily detected; or any similar act, will avoid a sale. No title or right passes by such sale to the fraudulent party; but the innocent party, whether buyer or seller, may waive the fraud, and insist that the fraudulent party shall not take advantage of his own fraud to avoid the sale. And by an exception to the general rule that he who has no title can give none, if a fraudulent buyer sells to a third party who is wholly without participation in or knowledge of the fraud, the innocent buyer may acquire a good title.

A buyer who is imposed upon by a fraud, and therefore has a right to annul the sale, must exercise this right as soon as may be after discover

ing the fraud. He does not lose the right necessarily by every delay, but certainly does by any considerable and unexcused delay.

A seller may rescind and annul a sale if he were induced to make it by fraud. But he may waive the right and sue for the price. If, however, the fraudulent buyer gets the goods on a credit, and the seller sues for the price, this suit is a confirmation of the whole sale, including the credit; or rather it is an entire waiver of his right to annul the sale, and the suit cannot be maintained until the credit has wholly expired.

If a party who has been defrauded by any contract brings an action to enforce it, this is a waiver of his right to rescind, and a confirmation of the contract. Or if, with knowledge of the fraud, he offers to perform the contract on conditions which he had no right to exact, this has been held so effectual a waiver of the fraud that he cannot set it up in defence, if sued on the contract.

NEW BANK LAW OF MASSACHUSETTS, 1863.

Chapter 102 of the laws of 1863, approved March 18th, provides as follows:

SECTION 1. No bank shall hereafter procure any bills to be printed except in pursuance of a vote of the directors, passed at a regular meeting of the board, and a copy of such vote, duly certified by the cashier or clerk of the board, shall be forthwith transmitted to the office of the bank commissioners. Whenever any bills, so ordered, shall have been printed, and shall be delivered to said bank, they shall be accompanied by duplicate certificate, signed by the printer or other proper officer on his behalf, stating the number and denominations of the bills so delivered, one of which certificates shall be retained by the bank, and the other forth with transmitted to to the office of the bank commissioners.

SEC. 2. This act shall not apply to banks organized under the general laws.

THE ACT OF NEW YORK TAXING MONEYED CORPORATIONS.

AN ACT IN RELATION TO THE TAXATION OF MONEYED CORPORATIONS AND

ASSOCIATIONS, PASSED APRIL 29, 1863, THREE-FIFTHS BEING PRESENT. The people of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. All banks, banking associations, and other moneyed corporations and associations, shall be liable to taxation on a valuation equal to the amount of their capital stock paid in or secured to be paid in, and their surplus earnings (less ten per cent of such surplus) in the manner now provided by law, deducting the value of the real estate held by such corporations or association, and taxable as real estate.

SEC. 2. This act shall take effect immediately.

LEGAL TENDER UNITED STATES NOTES.

DECISIONS OF THE FIRST AND SEVENTH DISTRICTS OF THE SUPREME COURT OF THE STATE OF NEW YORK.

WE give below the opinions of the court in two districts of the Supreme Court of New York State, upon the question whether Congress has the power to declare Treasury notes lawful money, and make them a legal tender. It will be seen that in the First District, (New York city,) the judges at General Term have held that no such power exists, while in the Seventh District at General Term the judges took just the opposite view, and deci ded that such power does exist, and the notes are legal tender for all debts, etc. It will be remembered that there are eight Supreme Court districts in this State, and only these two have passed upon the question. We shall, however, soon have the opinion of the Court of Appeals. A case involving the points at issue was submitted, we understand, at the last term of the court. Whether this be so or not, there is certainly one if not two to be argued at the present June term, so that by September at farthest we shall know what is the opinion of the court of last resort in this State upon this important question. We give the following opinions without further comments, as it is useless to speculate upon matters which will so soon be settled by our courts:

OPINION OF THE COURT AT A GENERAL TERM IN THE FIRST JUDICAL DISTRICT, HOLDING THAT TREASURY NOTES ARE NOT A LEGAL TENDER.

LOUIS H. MYER VS. JAMES J. ROOSEvelt.

By the Court-INGRAHAM, P. J.

It is difficult to conceive of a question that can be submitted to the adjudication of the Courts in a matter affecting property, that involves more momentary and important consequences than are connected with the proper decision as to the powers of Congress in making the treasury notes of the government a legal tender.

The interests of the country, and of individuals to an almost unlimited extent, are affected by it, and its importance is not lessened by the consideration that it involves the construction of the powers granted by the Constitution of the United States.

Although this case was fully and ably argued before us by the learned counsel engaged therein, we do not deem it necessary for the disposition thereof to pass upon all of the questions so argued; and, unless absolutely necessary for the decision of the case before us, a particular examination of them at this time will not be required.

At the time when the contract which forms the subject-matter of this action was made, and at the time when it became due, there was no lawful money of the United States except gold or silver coin that could be used as a legal tender, and it cannot be pretended that any other could then be used for that purpose. Under such circumstances the contract had been made, had matured, and the rights of the creditor under it had