The United States v. Tuska. ferred to, the questions determined were not presented by a plea in abatement, they furnish no authority in the present case, where the objections are taken by plea. But, it is obvious, from the language of these decisions, that their effect was not intended to be dependent upon the form in which the questions were brought up. In neither of the cases were the questions raised by a challenge; and, in the latter case, it is plain that the points in judgment were determined as if raised by plea. Furthermore, I incline to the opinion, that, where there is no averment of injury or prejudice to the defendant, irregularities such as are here complained of become matters of mere form, within the scope of g 1025 of the United States Revised Statutes, which provides, that no trial, judgment or other proceeding upon an indictment shall be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant. In regard to the order directing that 48 persons be summoned to attend, I desire to say further, that it is not open to the charge of irregularity. No statute of the United States fixes the number of persons to be summoned, nor has the State law as to number been adopted; and, moreover, there is no uniform law of the State upon the subject, in force throughout the locality comprising the Southern District of New York. In some parts of the District the State law allows the summoning of 50 persons; in other parts the number is 36. Resort to the common law also fails. Whether, at common law, an irregularity would be committed by the sheriff in selecting and summoning more than 24 jurors to attend as grand jurors, I do not stop to inquire. If such be the rule applicable to an officer charged with the duty not only of summoning but of selecting good and lawful men to compose a grand jury, the reason of the rule fails under our system of procedure, where the marshal has simply to summon designated persons, and the Court, in the absence of any other mode provided by statute, must select the requisite number of fit persons from those in attendance. In the absence of The United States v. Tuska. statutory regulation, the Court must necessarily determine what will be a sufficient number to enable a grand jury to be constituted; and the existence of this power will be found to be implied in § 808 of the United States Revised Statutes. It should be added, that it has been of frequent occurrence, in this District, to direct that 48 persons be summoned; and, in at least one instance, an order similar to the one in this case was made by the Circuit Judge. Nor is there any ground to contend that any possible injustice could arise to the defendant from the course pursued. The plea shows, that, of those who were summoned, only 22 persons fit to be sworn attended, and that all these were sworn. As to Rule 60, which has been referred to, it has been deprived of effect by the subsequent Rules, but it supposes the Court to be vested with power to fix the number of jurors to be summoned. To the averment of the plea, that the names were not drawn by the clerks, as the Rules require, the plea itself furnishes a sufficient answer, for, it sets up the certificate of the clerks that the names were drawn in conformity with the Rules. It cannot be permitted to a defendant to set up such a certificate as part of the record upon which the Court has acted, and then to contradict it by his plea. Moreover, upon the plea as worded, it must be presumed that the drawing was done by the deputy clerks. In regard to the averment of want of qualifications in some of the grand jurors as to residence and property, there appears to me to be no room to contend that the objection is not fully covered by the decision in Reed's case. It may, however, be said, in addition, that the ground for a rejection of a similar objection, found by the Supreme Court of Massachusetts, (Commonwealth v. Smith, 9 Mass., 107,) in the form of the indictment used in that State, differing, as it does, from the English form, and from the form used in many of the States, is to be found in this case. The averment of the present indictment, in this particular, is similar to the averment in the Massachusetts case. I add further, that the argument from The United States v. Tuska. inconvenience and delay, which the Courts of this State have given controlling weight adversely to the present objection, (The People v. Jewett, 3 Wendell, 314,) seems to me to be entitled to control here. If, in every criminal prosecution, the accused has the legal right, by a plea in abatement, to raise the question of the residence and the property of each of the members of the grand jury, and require that issue to be tried before a jury, before calling upon him to answer the charge, it is easy to see, that, in localities like New York, the practice would substantially render the trial of an offender optional with him, for, in the absence of any better method of selecting juries for Courts of the United States than that permitted by existing laws, it doubtless happens that some one of the grand jury is open to question as to his residence or property. It is also easy to see, that, if matter forming ground for a challenge is allowed to be the foundation for an issue for the jury, when set up by plea in abatement, the effect of the provision of the statute requiring that "all challenges, whether to the array or panel, or to individual jurors, for cause or favor, shall be tried by the Court," (§ 819,) will be substantially destroyed. In the discussion of this case I have been referred to many and conflicting decisions in the Courts of the several States, upon the questions under consideration, but, as before stated, the adjudged cases in this Circuit, to which reference has been made, must furnish the law for the present case; and they compel the sustaining of this demurrer. It is ordered that the plea be set aside, and that the accused plead anew to the indictment. Benjamin B. Foster, (Assistant District Attorney,) for the United States. Benjamin F. Tracy, John J. Allen, and Edward T. Wood, for the defendant. Ayres v. The Western Railroad Corporation. JOHN B. AYRES vs. THE WESTERN RAILROAD CORPORATION. Goods, in the course of transportation from West Springfield, Massachusetts, to Cleveland, Ohio, were destroyed by fire in the depot of the Western Railroad Corporation, at East Albany, New York. That corporation, when it received the goods at West Springfield, gave a receipt, setting forth that it had received 4 cases, marked J. B. C., Cleveland, Ohio. The receipt, on its face, said: "This contract, and the responsibility of the parties hereto, being limited and controlled by the rules and regulations printed upon the back of this receipt; it being also understood, that this corporation assumes no liability beyond the end of its own line, and that, so far as it acts as agent for other parties participating in the joint transit aforesaid, said parties are separately liable." The back of the receipt said: "The following rules and regulations have been adopted by the several railroad corporations in regard to freight.” “The company will not hold itself liable as common carriers, for articles of freight, after their arrival at their place of destination and unloading at the company's warehouse or depots." 'All articles of freight must be taken away within 24 hours after being unladen from the cars." The cases were marked as described in the receipt, and also marked, "care of Western Transportation Co.," a corporation engaged in carrying freight on the Erie Canal. The terminus of the road of the Western Railroad Corporation was at East Albany. The goods arrived there and were unladen at its warehouse. Three days afterwards the warehouse took fire, and the goods were consumed, without fault on the part of the corporation. It did not appear that notice of the arrival of the goods was given by the corporation to the Western Transportation Company: Held, that the Western Railroad Corporation was liable for the value of the goods. (Before WALLACE, J., Southern District of New York, October 19th, 1876.) WALLACE, J. The plaintiff seeks to recover the value of certain paper destroyed by fire in the freight depot of the defendant, while in course of transportation from West Springfield, Massachusetts, to Cleveland, Ohio, and other points beyond the terminus of the defendant's road. Upon the shipment of the goods, the defendant gave the shipper a receipt Ayres v. The Western Railroad Corporation. depot there, to ..... in the following terms: "Western Railroad Corporation, West Springfield, June 26th, 1861. Received of Southworth Mfg Co., 10 cases paper, marked and numbered-4, J. B. Cobb & Co., Cleveland, Ohio-5, J. R. Dayton, Quincy, Ill. -1, Ogden, Brownell & Co., Keokuk, Iowa; contents and value unknown; to be transported to and delivered at the .... on the payment of freight therefor, together with such expenses as shall be shown by vouchers to have been advanced on the same; this contract and the responsibility of the parties hereto being limited and controlled by the rules and regulations printed upon the back of this receipt, as also by the terms of their printed tariffs of freight; and it being, also, understood, that this corporation assumes no liability beyond the end of its own line, and that, so far as it acts as agent for other parties, participating in the joint transit aforesaid, said parties are separately liable." Upon the back of the receipt there was an endorsement: "The following rules and regulations have been adopted by the several railroad corporations in regard to freight.". Then follow a number of rules, among which are these: "The company will not hold itself liable, as common carriers, for articles of freight, after their arrival at their place of destination and unloading at the company's warehouse or depots." "All articles of freight must be taken away within twentyfour hours after being unladen from the cars, the company reserving the right of charging storage on the same, or placing the same in store at the risk and expense of the owner, if they see fit, after a lapse of time." The several parcels of goods were marked as described in the receipt, and also marked "care of Western Transportation Co.," a corporation engaged in carrying freight upon the Erie Canal. The terminus of the defendant's road was at East Albany, where the goods arrived and were unladen at the defendant's warehouse on the 2d of July; and, on the 5th of July, the warehouse took fire and the goods were consumed, without fault on the part of the defendant. It is not shown that notice of the arrival of the goods was given by the defendant to the Western Transporta |