This closed the proofs, and the plaintiffs asked a judgment for the sum of $16,786, as shown in the above computation.

The defendants moved to dismiss the complaint on the three grounds :--The entire invoice never arrived in New York. None of it arrived within the time specified in the contract. The correspondence in June, and the subsequent silence of the plaintiffs were an abandonment of the contract. This motion was denied, and defendants excepted. The court then directed that a verdict be taken for plaintiffs for $16,786, on the basis of the above computation, subject to opinion of General Term; and defendants excepted to this disposition of the cause. No objection was taken, because it was not submitted to the jury to assess damages or to determine any question of fact, but simply to the rulings of the court as to the construction of the contract and the measure of damages.

For defence, it was alleged that on the 22d January, 1856, an invoice of 18,341 bags of sugar, weighing 112,060 pp., (a Manilla weight.) marked A. K., was shipped on account of the defendants at Manilla, consigned to them at Boston, in the ship Anna Kimball, (fol. 60.) The defendants were advised of this shipment by letter of February 7th, 1856, (fol. 56,) received at Boston April 21st, 1856, (fol. 55.) On 1st May, 1855, an agreement was made, through Hallett, Dow & Young, brokers, by bought and sold notes, (fol. 7 and fol. 15,) both alike, (except that of the plaintiff specified the wharf in New York for delivery,) for the sale of the invoice, 700 tons more or less, at 63 cents per pound, to arrive on or before 1st August, and sugar to be of current quality, clayed. On the 24th February the ship sailed with the invoice of sugar from Manilla, (fol. 74.) On the 3d March she met with a typhoon in the China Sea, which lasted three days, (fol. 63, 69.) The ship took in from 5 to 6 feet water, (fol. 63,) up to the seventh tier of bags; the sugar was melted and a quantity of it thus lost, (fol. 73;) by the master's estimate, 225 tons, (fol. 67.) What was on board damaged was taken on shore and sold at auction, (fol. 65.) If not landed it would have melted before reaching the Cape of Good Hope, (fols. 65 and 68;) 1,297 bags only remained in good order; 1,931 bags sea damaged, with sugar in them; 2,564 bags much sea damaged, and mostly empty, (fol. 75.) The ship remained thirty-seven days at Singapore, in repairing and restowing cargo, (fol. 70.) The ship, with the sugar on board, did not arrive on or before August 1st, as in the contract, but arrived in New York on the 30th August, with only the remnant of the sugar, (fol. 69.) after a passage of 140 days from Singapore, (fol. 71.) On the 23d June, 1856, the defendants at Boston, supposing that the ship would not arrive by the 1st August, authorized J. B. Glover & Co., brokers, to offer the sugars to the plaintiffs at 82 cents, (fol. 39.) The plaintiffs replied on the 24th June, asking time to consider the offer, (fol. 42.) On the 25th June, the defendants wrote to plaintiffs asking an immediate answer by telegraph, (fol. 44 ;) to this the plaintiff's replied by telegraph, that they would take the sugar at 8 cents, (fol. 45;) to which the defendants replied by telegraph on the same day, "offer not accepted," (fol. 45.) On 31st July, the plaintiffs wrote to defendants, claiming that they were entitled to the sugar, even if it did not arrive on the first of August, under the agreement, (fol. 46.) On the 1st of August, the plaintiffs telegraphed to the defendants, that the ship had not arrived. but claiming the sugar, if it should arrive afterwards, under their contract, (fol. 50.) defendants telegraphed in reply on the same day, that unless the ship arrived that day the plaintiffs were not entitled, (fol. 51.) and on 2d August answered the plaintiff's letter of 31st July, (fol. 48.) On the 2d July, the defendants sold the sugar to arrive to Roberts and Williams; sound and damaged; the latter increased in weight from 7 to 10 per cent, (fol. 34, 35.) The difference of value on the sound sugar delivered, between 63 the contract price, and 84 cents the price at the dates August 1 and August 30, was proved to be $14,985 31, (fol. 54,) for which, with interest, a verdict was ordered by the judge, reserving the questions of law presented, (fol. 78.)

For plaintiffs, H. H. Stuart and C. O'Conor. For defence, D. Lord.

The

PRACTICE-WHEN A COUNTER CLAIM CAN BE SUSTAINED.

In the Superior Court-Special Term--October 7. Before Judge Hoffman. The Xenia Branch of the State Bank of Ohio vs. James Lee and Benj. C. Lee. Motion to strike out a counter claim in an answer. The plaintiffs, a corporation created by the laws of Ohio, allege that they became possessed of certain bills of exchange and acceptances (which they enumerate) by taking and discounting them in the regular course of business; that, to facilitate the collection of them, they indorsed and transmitted them to their agent, the Ohio Life Insurance and Trust Company, at its office in New York; that such company was only authorized to collect and pay the proceeds to the plaintiffs, without power to sell, pledge, or otherwise dispose of them; that such company was indebted to the defendants for money loaned upon usurious interest, and transferred and delivered the bills and acceptances in question to the defendants as collateral security for such usurious and precedent indebtedness; that the defendants took the same, with knowledge that they were the property of the plaintiffs, and that the Trust Company had no power to transfer the same.

A statute of Ohio is then set forth, under which the plaintiffs became incorporated, by which it was enacted that no notes or bills discounted by such bank should be assignable, except for collection, or to pay and redeem the circulating notes of such bank, or to pay its liabilities; that the defendants had notice of such statute.

The complainant then states a demand and refusal to deliver; an unlawful detention and conversion; that the value of the securities is the sum of $51,833 86, and demands judgment for such sum.

The answer denies the allegations of the complaint, and avers that the several drafts or bills of exchange mentioned were indorsed in blank by the Ohio Life and Trust Company, by Edward Ludlow, its cashier, and were delivered to the defendants before their maturity; that they were received in good faith without any notice of their being the property of the plaintiffs, or not being the property of the said Ohio Life and Trust Company, and were delivered and received as collateral security for the payment of lawful money loaned to such company, on the faith and credit of such bills of exchange so indorsed; that the amount loaned was equal to the amount payable by the terms of the drafts, and became due before the demand made upon them; further, that the plaintiffs have received the full amount of the drafts or bills from the drawers or indorsers; that the plaintiff's were at the commencement of the action, and are now, indebted to the Ohio Life and Trust Company, in an amount exceeding the whole of the drafts, and they, therefore, claim the right to retain them as indorsers of such company.

The answer then sets up, by way of counter claim, the making of the several drafts by the respective makers, with dates, &c., in favor of Jas. B. Scott, cashier, or order, addressed to E. Ludlow, Cashier of the Ohio Life and Trust Company; that the plaintiff's were in fact the payees of them respectively, Scott being their cashier; sets forth their indorsement by Scott, as such cashier, and delivery to the Ohio Life and Trust Company, who became the legal owners and holders thereof; the indorsement of thein by the cashier of such company, and delivery to the defendants; the due presentment at maturity at the office of the company, to the cashier, on demaud, and refusal, protests, and notice to the plaintiffs, and its reception. The defendants allege that there is due upon the bills an aggregate amount of $51,833 86, with interest as stated, and demand judgment for this sum against the plaintiffs.

HOFFMAN, J.--The question is thus presented. The plaintiffs have brought an action to recover damages for the unlawful detention and conversion by the defendants of certain bills of exchange, which they aver belonged to them, and were illegally obtained and converted by the defendants. The defendants admit the possession, deny the property or right of the plaintiffs, insist upon the legality and justice of their own title, state the mode of acquiring the possession in good faith and for value, and make out, upon their own showing, a case of a full de

fence to the plaintiffs' claim. They then aver that the plaintiffs are indorsers upon the bills, a demand at maturity of the drawees, refusal, protest, and notice; and they claim judgment against the plaintiffs for the amount. Can such a counter claim be admitted under the Code?

The 150th section warrants a counter claim in favor of a defendant against a plaintiff, for a cause of action arising out of the transaction set forth in the complaint, as the foundation of the plaintiff's claim, or connected with the subject of the action. (Sub. 1.)

The transaction out of which the plaintiffs' claim arises, or on which it is founded, is the delivery to, or possession by, the defendants of the bills in question.

The case of the plaintiffs is, that such delivery and possession gave no title to the defendants; the claim of the defendants is, that it vested in them a full right to the bills and their avails, and necessarily to all remedies against all parties to them. Thus the plaintiffs' claim and the defendants' demand seem strictly to spring from the same transaction, although other circumstances attending that transaction will make the case turn in favor of the one or the other.

Again, what meaning is to be given to the broad language, "or connected with the subject of the action?" The subject of the action is the possession and right to the bills. The cause of action of the plaintiffs is the illegal withholding of them by the defendants. The cause of action of the defendants is the legality of their possession and ownership. The cause of each is connected with the same subject.

The legal character of a counter claim, under the Code, was fully discussed in the case of Gleason rs. Moer (2 Duer Rep., 624.) It is such a cause of action as, under the former system, would have sustained an action at law, or a suit in equity, against the plaintiff on record. The old set-off is comprised; any claim or contract, sealed or unsealed, and whether the damages are liquidated or unliquidated, is included; and also, any breaches by the plaintiff of any promise or contract on his part contained in the contract sued upon; any equitable relief against a legal demand formerly attainable by a bill in chancery; and any affirmative relief which, in equity suits, could be had by a cross bill.

Comprehensive as this description of a counter claim is, and clearly as it defines the laws, at least in our court, it perhaps does not, by any logical inference, include precisely the present case. Certainly, however, there is nothing to exclude its being comprised within the legal scope and meaning of a counter claim. In the case of the Mayor of New York vs. Maybie (3 Kernan R., 151,) it was held, independently of the Code, that in an action by a lessor for rent, the lessee might recover damages sustained by a breach of an implied covenant for quiet enjoyment. In the court below, the question was suggested whether, under the Code, it might not be done, but the case depended upon the law before the Code. In Drake vs. Cockroft, (10 Howard Rep., 377.) the action was for rent received in a lease, and the defendant set up a claim for damages resulting from the plaintiff breaking open a stable, part of premises hired, and taking away certain personal property. This, it was held, he could not do. A mere trespass was no more connected with the subject of an action brought for rent, than an assault and battery of the tenant by the landlord would be.

Mr. Justice Woodruff, in delivering the opinion of the court, states proposi tions fully co-extensive with the principle of the decision in the Mayor, &c., vs. Maybie, subsequently made. (See page 382.)

In Ashins us. Hearne, (3 Abbott Rep., 184,) Justice Emmott thought that a counter claim could not be sustained upon the following facts :-The plaintiff sued for damages for the conversion of a ring. The defendant alleged an exchange of rings, each to be kept until the o her should be returned, and averred a tender of the one, and demand of the other, and asked judgment for his ring or its value.

It is supposed that the ground of this case is, that opposite causes of action for torts cannot be the subject of counter claim. Yet, perhaps, a distinction may

be suggested that where the ground of each claim is really a contract, although the form of action under the old system would be for a wrong then, when the transaction which gives rise to each is the same, the Code is broad enough to include a counter claim. The exchange alleged of the rings was, in fact, a mutual agreement.

In Pattison vs. Richards, (22 Barbour Rep., 143.) the action was for damages in diverting the water of a stream from the plaintiff's land by ditches cut on the land of the defendant. The defendant set up a claim for the violation of an agreement by the plaintiff, relative to the deepening of the channel of the stream through their respective lands, made four years previously. It was held by the General Term to be inadmissible as a counter claim.

It is apparent, that the alleged counter claim did not arise from the same transaction, and was not connected with the subject of the plaintiff's action, except in the most indefinite and remote manner, as relating to the land. But the learned judge does state, that in an action of tort, previous to the Code of 1852, set-offs were not allowed; nor are they now allowed as counter claims, under the second sub-division of section 150 of the Code of 1852. Counter claims under the Code of 1852, embrace both set-offs and recoupments, as they were understood prior to the Code.

Assuming that, in a pure action of tort, as before understood, no counter claim for a tort is permissable, we do not yet obtain a rule which would clearly exclude a claim to or upon a piece of property or chose in action, by contract express or implied, when the plaintiff's demand is to recover that property or its value. And, as I have before endeavored to show, every essential element, either in relation to the transaction or subject matter, required by the Code, is in this case found to exist.

I think the counter claim is properly set up within the Code, and the motion must be denied. Order accordingly.

Mr. William Stanley for plaintiffs; Mr. Seward for defendants.

DECISIONS IN REVENUE CASES.

United States Circuit Court. Before Judge Nelson. Conrad H. Banneldahl ts. H. J. Redfield; Carl Beckhacher, et al., vs. same; Carl Waldthausen vs. same; H. Heyman, et al., vs. same; Jules Scheidt vs. same; Robert Waldthausen

vs. same.

The following opinion is in the first of the above suits. In the other suits the same order was made:-This was an action to recover back a penalty paid the Collector, under protest, imposed under the 11th section of the act of 1842, of 50 per cent on duties for undervaluation. The plaintiff claims to have been a mauufacturer of the goods imported, and therefore not subject to the above penalty as coming within the section aforesaid; also, that the re-appraisal should have been under the acts of 1823 and 1830.

Held, That the re-appraisal was properly made under the act of March 3d, 1851, which applies to all goods imported by the manufacturer as well as by the purchaser; and further, that the 17th section of the act of 1842 is general, and not limited to the case of the importation of purchased goods, but applies to all goods imported, and authorizes the penalty of 50 per cent for undervaluation of all goods imported other than those purchased, which latter are provided for by the 8th section of the act of 1846, imposing a penalty of 20 per cent on appraised value. Judgment for defendant upon the question reserved in the case made.

COMMERCIAL CHRONICLE AND REVIEW.

SUPPLY OF MONEY-DECLINE IN IMPORTS-SPECIE IN THE CITY-AMOUNT IN BANKS-EXCHANGES, TABLE OF RATES OF MONEY ABROAD SILVER SHIPMENTS-RATES OF EXCHANGE-SPECIE MOVEMENT-EXPORTS OF BOSTON AND NEW YORK-NATURE AND DESTINATION-COINACE AT PHILADEL PHIA NEW YORK ASSAY-OFFICE OPERATIONS- UNITED STATES COINAGE EXPORTS OF GOLDINCREASE OF COINS SILVER COINAGE-LEGAL TENDER-METALLIC CURRENCY-IMPROVED BUSTNESS SPECIE IN TREASURY EXCESS OF EXPENDITURE UNITED STATES DEBT-SEMI-ANNUAL

INTEREST.

THE supply of money in the market has remained during the month very abundant, and at low rates for the season. There has been no increase in the business movement, but, as will be observed in the trade tables annexed, the exports, with the exception of cotton, have declined in value as compared with last year. Nevertheless, the decline in imports has been such as keeps exchanges at a very low point, considering the season of the year, and to limit the export of specie below the average of the last few years at this season. For the month of November the receipts of specie from California exceeded the exports by $2,000,000, but the same circumstance that kept foreign exchanges in favor of New York also kept exchanges in favor of the South and Southwest, and, in face of the fact that the California supplies have exceeded the exports, the amount in the city has declined $1,000,000. Although remittances to the South, and the accumulation in the banks of New York, has been nearly $2,500,000 during the month to December 6th, there has been no revival of demand for money that could cause a rise in the discount lines, and our tables of weekly bank returns show very little improvement in discounts. The rate of money has therefore undergone no material change, but may be quoted as follows:

These figures indicate the abundance of money on call and the decline in prices on short paper, with some inclination to put it up on long dates. The rates of money continue very low abroad, and the Bank of Frankfort, which put the rate up to 5 per cent on the resumption of the Bank of Austria, has put it down again to 4 per cent. In the other cities it is apparently increasingly abundant, although in France there are signs of a renewal of the shipment of silver. This arises in some degree from the demand caused by the resumption in Austria, and the reported failure of the China tea crop, which would cause a rise and speculation in that article. There has remained, however, for a long time an unusual approximation of the price of money in London and New York, which has aided in keeping steady the exchanges. These have been as follows:—