the party who took them in payment is not entitled to be paid over again.

Now, he is plainly not entitled to be paid over again, if it can be shown that when the note or other instrument was given to him he expressly agreed to take the risk of its being paid, and to receive it in full payment at all hazards.

On the other hand, he is clearly entitled to be paid a second time, if he can show that he only consented to receive the note upon the understanding that if it were not paid, he should return it to the debtor and renew his original claim.

But if it cannot be ascertained what was the understanding in this respect, it is then a question of law whether he ought to be paid again or not. The law on this point differs in different jurisdictions, though in most the rule prevails that in the absence of proof of an agreement to the contrary, a creditor is not paid by giving him the notes, checks, &c., of another person, unless these themselves are ultimately paid.

But all difficulty upon this subject will be saved if those who make or receive payments in such paper will state in the receipt what medium of payment is employed, and define the understanding upon which it is received. If it is taken absolutely and at the payee's risk, let this understanding be expressed. If it be understood that if the note or check be dishonored the debtor is to make payment over again, let that be stated. True, this is not absolutely necessary where other evidence is at hand. When payment is made in a note of a third person, the creditor may, notwithstanding the admission in his receipt that he has received payment, prove that he never realized anything from the note, and that the agreement was such that he is entitled to be paid again. He may prove this if he has any evidence; if not, he must suffer the loss. It is far more convenient to preserve evidence of these facts in the receipt.

OF THE OCCASION FOR GIVING AND TAKING RECEIPTS.

A man is not bound to give a receipt.

The custom of giving receipts is so universal, that one might suppose it was the legal duty of a creditor to give one when required, and that if the creditor refused to give a receipt, this would justify the debtor in refusing to make the payment. It is not so. The rule of law is, that a man shall not be compelled to furnish evidence against himself. To give a written admission of payment, is to furnish evidence against one's self, and no one can be required to do it.

If a creditor is so unreasonable as to refuse to give a receipt, it makes no difference in his legal right to receive the money due; and if the debtor wishes to secure evidence of the payment, the proper way is for him to make it in the presence of a witness. By universal custom and courtesy of business, every man gives receipts upon all ordinary occasions, when they are desired. They are to be asked for as matters of favor, however, not demanded as a right.

It is not best, as a general rule, to give a receipt when payment has not actually been made.

It is not very safe to do so, even when dealing with honest men; for even very honest men are sometimes surprisingly forgetful when the question is whether they owe money or not. A man who finds a receipted

bill among his papers, often thinks he recollects paying the money, when, in fact, he only forgets that he did not pay it. Then, in case of the death of one's debtor, those who should have charge of settling up his affairs would naturally suppose he had paid all bills which they found receipted, and would distrust the assertions of the creditors that the money was never paid.

There are some payments for which it is scarcely worth while to take receipts.

When payment is made by a check, drawn payable to the order of the creditor, he cannot obtain the money without indorsing the check. When, in course of time the check thus indorsed is returned to the drawer of it, it is equivalent in law to a receipt for the amount. There is this deficiency about it, that it does not state the intended application of the payment. When there is liable to be difficulty in respect to this point, a receipt should be taken.

Similarly, it is not usual to take a receipt on paying a note, draft, or other instrument indorsed by the payee. This is because the instrument itself, with the indorsement, becomes a receipt. Upon the same principle it is, that partial payments of such paper are indorsed on the instrument, instead of being receipted for. These indorsements constitute in effect a concise admission of payment, and only differ from a receipt in this, that they are not delivered to the payer. They do not become any part of the note or draft. They are considered as mere receipts; so that while the instrument cannot be contradicted by parol evidence, the indorsements can be.

It is not really safe to trust to a receipt when the transaction, in fact, involves an agreement.

At all events, the receipt in such a case should be drawn with great care; because, in case of any legal controversy, no explanation of it inconsistent with its language, can be given.

HOW LONG TO KEEP RECEIPTS.

The length of time during which receipts should be kept depends upon a variety of circumstances.

In the first place, there are frequent cases, where it is perfectly safe to destroy receipts, because it is morally certain that the claim will never be revived. When the amount is very small, or the dealings have been definitely closed up, or the creditor's affairs, in consequence of his change of business, or removal, or death, have been finally settled-and in similar cases, it may often be unnecessary to preserve them. These are considerations, however, which can only be passed on by each individual for himself. The only general advice respecting them which we can give is contained in the remark, that a great many more men have incurred loss by losing or destroying receipts which they afterwards needed, than ever were seriously inconvenienced by keeping such as never proved to be useful.

The Statute of Limitations-which provides that after the lapse of certain intervals, actions shall not be brought to recover debts-has an important bearing upon this question. The statutes enacted in the different States differ somewhat, and the limitations prescribed are different for different kinds of claims. But, as a general rule, and in most of the United

States, suits upon all those claims for which receipts are usually given, must be commenced within six years-unless there are special circumstances, such as are defined in the statutes, which excuse the delay.

As a general rule, therefore, after the lapse of six years from the time when the debt became due, the party need no longer take any especial care of his receipt for the payment of it. From that time the Statute of Limitations will be his receipt.

JOURNAL OF MERCANTILE LAW.

THE VANDERBILT COMPANY-CHARTER-PARTY.*

Nisi Prius Court, Liverpool, England, April 5, 1856. Before Mr. Justice Wilkes. Alexander ts. Dowie and another.

James Alexander, of Liverpool, merchant, was the plaintiff, and Mr. Kenneth Dowie and Mr. W. Forbes, also of Liverpool, commission-merchants, and agents of Vanderbilt's New York Accessory Transit Company, plying between San Juan and San Francisco, were the defendants; and the action was on a charter-party, under which the plaintiff undertook that his ship Ambassadress should proceed from Cardiff to Nicaragua, or some other convenient port, with a cargo of coal for the defendants' steamers. The declaration stated that the vessel did proceed to San Juan del Suez, on the coast of Central America, and was ready there to deliver the coal, but that she was detained by the defendants seventy-three days; and the action was brought to recover damages for the loss sustained by that detention. The defendants, in their first plea, denied the charter-party; in the second, they denied detention; thirdly, they pleaded that the detention was caused by the plaintiff's own agent; and fourthly, that the full claim of the plaintiff had been met by the delivery of a bill of exchange for $1,617. Mr. James, Q. C., with whom was Mr. Quain, for the plaintiff; Mr. Forsyth, Q. C., and Mr. Mellish for the defendants. Mr. JAMES stated that the ship Ambassadress, then belonging to Mr. Alexander, but since purchased by Messrs. Fernie Brothers, sailed from Cardiff with a cargo of coal, on the 8th of July, 1852, the freight agreed upon being at the rate of 55s. per ton. The charter-party provided that on arriving at her destination, twenty-five days should be allowed for demurrage, over and above the time of discharging, such demurrage to be at the rate of £9 per ton daily; and that the vessel was to be discharged with all convenient dispatch, on arriving at her destination, the plaintiff to be entitled to so much per day for the time the vessel was delayed after being ready and in turn to deliver her cargo. The Ambassadress arrived at San Juan del Suez on the 25th December, and by the direction of the charterer's agent there she proceeded to Salinas Bay, where she arrived on the 2d January, 1853, her arrival being immediately notified to Mr. Morton, the agent there of the Vanderbilt Company, for whose steamers Salinas Bay was used as a coaling depot. At that time there were in the bay two sailing vessels the Damascus, belonging to Baltimore, and the Dumbarton. The Dumbarton was unloading into one hulk, but there was another hulk doing nothing. These hulks were kept by the Vanderbilt Company for the reception of coal for their steamers. At the expiration of the twenty-five lay days, Capt. Pentreith, (captain and part owner of the Ambassadress,) wrote to Mr. Morton, notifying him of that fact, claiming demurrage to 22d February, and protesting against any unusual detention. In a few days afterwards the ships Blanchard and Boadicea arrived with coals-about eight days afterwards; and about a fortnight or three weeks afterwards the Sea King and St. Peter, with coal, arrived, and they were

We are indebted to the concise and reliable reports of the Liverpool Albion for this and several other interesting mercantile cases.

all discharged before the Ambassadress. Several letters passed between Captain Pentreith and Mr. Morton, and between Capt. Pentreith and Messrs. Body, White, and Company, who had been appointed agents for the New York Accessory Company, in place of Mr. Morton, with respect to the delay, and demurrage, at the rate of £9 per day, was from time to time paid, Capt. Pentreith, however, giving notice that he did not consider that a full discharge of his claim for loss caused by detention. For the plaintiff it was contended that he was entitled to demurrage for seventy-three days, three months, between March and June, 1853, which had been paid; and also to the recovery of the value of the vessel to the plaintiff during those seventy-three days. The estimated value was thus ascertained. In her outward voyage, which occupied 139 days, the Ambassadress made £2,964, which would leave profits for seventy-three days £1,557. They maintained that they were also entitled to recover £400 as the amount of damage the vessel had sustained by remaining that length of time under a burning sun. Capt. Pentreith, in deposing to these facts, stated that on the 14th of January, after waiting from the 2d, he commenced discharging into the Brother Jonathan, a large steamer belonging to the Vanderbilt Company; but after receiving about 320 tons the Brother Jonathan went away, and the Ambassadress was detained three months. In a subsequent part of his evidence, he stated that the vessel was afterwards lost in the Bay of Fundy. In reply to Mr. FORSYTH, witness admitted that on the 28th of March he received instructions to place coals on board the steamer Pacific. He tried to beat to her, but found it was impossible. The Pacific could easily have come alongside the Ambassadress, which had a good anchorage, with plenty of water. In answer to the jury, the witness said the Ambassadress was 846 tons burden, and her actual expenses, while in Salinas Bay, were £15 or £16 a-day. Mr. Fernie, of the firm of Fernie Brothers, merchants and shipowners, stated that his firm were the agents for, not the owners of, the Ambassadress. He calculated that she was worth between £25 and £30 to her owners. Capt. Pentrieth interrupted the witness during his examination, and ran imminent risk of being ordered out of court by his lordship. Mr. J. S. De Wolfe was examined as to the value of freights to Nicaragua between March and June, 1853. He estimated the freights at that period, on such a voyage, at fifteen shillings per ton per month. Mr. FORSYTH contended that until the Damascus and Dumbarton were discharged, the turn of the Ambassadress had not come; that they filled the hulks, which, therefore, could not be made available for the cargo of the Ambassadress; that no steamer came up, and that, therefore, there was no possibilty of taking the coal from the Ambassadress until March; that then the Pacific arrived at Salinas, and intimation was given to the captain to place himself alongside, but he refused to do so; that no other opportunity was afforded until the 14th June; that not only had all the legal claims presented by Captain Pentreith, as to demurrage, been paid, but that demurrage for the eleven days between the 2d and 14th of January had been paid, that being on a period in reference to which there was no legal claim; that the captain had received $1,617 in full settlement of all claims against the Vanderbilt Company; and that this was the first time, after a lapse of three years, that the extraordinary claim for loss of profit had been set up. The action, he said, was an unjustifiable attempt to extract from the pockets of the defendants damages with respect to a transaction which had been entirely settled three years ago. After his LORDSHIP had summed up, the jury almost immediately returned a verdict for the defendants, on the ground that there had been a full discharge of all claims. His LORDSHIP: Then you are of the opinion, gentlemen, that Mr. Pentreith had authority to settle the matter? The FOREMAN: Certainly.

COMMON CARRIERS-GIVING THROUGH TICKETS DOES NOT MAKE PARTNERS.

If the several proprietors of different portions of a public line of travel, by agreement among themselves, appoint a common agent at each end of the route to receive the fare and give through tickets, this does not per se constitute them partners as to passengers who purchase through tickets, so as to render each one liable for losses occurring on any portion of the line. (Ellsworth vs. Tartt. Supreme Court of Alabama.)

BANKRUPTCY-NEW CODE OF MERCANTILE MORALS.

In Supreme Judicial Court, April Term, 1856, at Worcester, Massachusetts, Judge B. F. Thomas presiding. Turner, Wilson & Co., appellants, vs. John H. Comer, assignee, et al.

This novel bankrupt case, presenting an entire new code of morals of the merchants of Boston, came up by appeal from the decision of Commissioner A. H. Bullock, in the Court of Insolvency in the County of Worcester. It appeared, in evidence, that James Snow, the insolvent debtor, had once before been unable to pay his debts in full, when a contract was drawn up by his creditors, releasing him from all liability to them by paying fifty per cent on their several claims, a copy of which we annex :

BOSTON, January 6, 1854.

We, the undersigned creditors of James Snow, of West Brookfield, agree to release said Snow from all liability to us, upon his paying, within thirty days from the date hereof, 50 per cent on our several claims-25 per cent in cash, and 25 per cent in six months, without interest, satisfactory paper; accounts to be made up to January 10, 1854. This obligation not binding unless all creditors become parties hereto.

It was alledged that one of the leading dry goods firms in Boston received their pay in full in consideration of signing the contract to take one-half. The financial partner of that firm being in Europe, the allegation failed in proof.

It was in evidence that J. W. Blodget & Co. received 75 per cent, and Jordan, Marsh & Co., 70 per cent on their claims, the names of both firms appearing on the above contract. Turner, Wilson & Co., and other creditors, who had been misled by these decoys, and settled their claims according to the contract, finding on investigation the fraud perpetrated on them, offered for proof before the Commissioner the unpaid 50 per cent. Lester M. Clark, et al., assignees of J. W. Blodget & Co., also offered for proof their unpaid 25 per cent, all of which claims were rejected. The evidence before the Court was substantially the same as before the Commissioner. The counsel for the plaintiff's relied upon their contract, while the defendants argued that, inasmuch as they had accepted of the 50 per cent, they had, by the act, waived any further claim. The Court ruled that the contract, being conditional, the plaintiffs' claim was valid with the evidence. The jury returned a verdict for the plaintiffs.

Exceptions were taken, and it will go before the full bench in October, 1856.

CASE OF SMUGGLING SILKS TO UNITED STATES-BREACH OF CONTRACT.

At the Liverpool Assizes. Brennan vs. Howard.

This was an action for the recovery of damages for a breach of contract, arising out of rather singular circumstances. Mr. Atherton, Q. C., with whom was Mr. Ovens, was counsel for the plaintiff; and Mr. Edwin James, Q. C., with whom was Mr. Blair, for the defendant. In stating the case to the jury, Mr. Atherton said that the plaintiff is Mr. John Brennan, a silk merchant of Manchester, and who had also a place of business at New York. The defendant is Mr. Henry Howard, who held the situation of berthing clerk in the employ of Messrs. Grimshaw & Co., of Liverpool. In November, 1853, the plaintiff, being desirous of forwarding some silk goods to New York, came to Liverpool for the purpose of entering into arrangements with Messrs. Grimshaw & Co. to forward the same. Plaintiff met a person named Devine, to whom he stated his object. Devine then introduced him to the defendant, and the three arranged to meet in the evening, which they did. Plaintiff stated that he wished to forward a considerable quantity of silk goods to New York, packed, not in the usual way, but in fact in hampers, with the view, it must be acknowledged, of escaping the ad valorem duty that would be exacted upon their importation into New York. Devine said that the defendant was just the very man, being intimately acquainted with several mates of ships in the New York trade. An arrangement was then entered into