The Peytona, Lane, Jr., Claimant. tion of the shippers to consign these goods to Lewis & Millan. They were named as consignees in the bills of lading presented to him for signature. He did not object, and he had no right to object to their being the consignees. The point left unsettled was, whether he should agree to deliver to Lewis & Millan at their wharf. I am by no means clear that under the circumstances he was not bound to do so. As the bills of lading were drawn, they imposed that obligation on him. He refused to sign them, but agreed to see one of the consignors. He sailed with the goods without doing so. Certainly the consignors had not assented to any other delivery than that provided for by the bill of lading. Non constat that they would have assented to any other. And I think it would be difficult to maintain, that sailing with the goods under such circumstances was not an assent on his part to the terms of the bills of lading. But it is not necessary to decide on this ground. The master was apprised by the bills of lading that Lewis & Millan were designated by the shippers as the consignees of the goods, and to them he was bound to give notice of their arrival. Having failed to do so, the vessel is liable for the deterioration of their value, from exposure to the weather on the wharf. In respect to the amount of damage I affirm the judgment of the District Court. The libellant having taken additional evidence on the question of damages, has sought to increase the sum awarded below. But he did not appeal from the decree. It is only where the Circuit Court reverses the decree of the District Court, that it is to proceed to render such a decree as the District Court ought to have rendered. 1 Stat. at Large, 85, § 24. This Court cannot pronounce a decree for increased damages, without first reversing the decree of the District Court on the subject of damages. This it cannot do on the prayer of the appellee. Stratton v. Jarvis, 8 Peters, R. 4; Canter v. The American Ins. Co. 3 Peters, R. 307. A cross-appeal Myers v. The York and Cumberland Railroad Company. should have been taken, if he was dissatisfied with the amount of damages awarded by the District Court. Having omitted to do so, he has waived all right to further damages, and can claim nothing more than an affirmance of the decree of that Court. The decree of the District Court is affirined with costs. Evans, contra. JOHN G. MYERS VS. THE YORK AND CUMBERLAND RAILROAD COMPANY. A reference of a pending action, under a rule of Court, authorizes the referee to take into consideration only the subject-matter substantially shown by the declaration; but he may disregard all such formal defects as might be amended if the case were tried in court. The award cannot be accepted if it does not enable the Court, by inspecting it, to separate what was, from what was not awarded within the submission. But a general award of a specific sum, without specifying the items of which it is composed is good, in point of form. Reference of an action of covenant by a rule of Court, makes the referee the final judge of the lawful rule of damages, and the Court, on an application to accept the award, will not review his decision. Under a stipulation to pay for building a railroad by monthly payments, twenty-five per cent. to be paid in stock of the corporation, "reserving one half the stock as indemnity for the fulfilment of this contract until said division of said road shall be completed," the corporation having wrongfully interrupted the work before the completion of the said division, held, that the stipulation as to the stock was executory, and the covenantee had not obtained a title thereto, and consequently should be allowed in damages the value thereof. In an action of covenant, the plaintiff having been wrongfully prevented by the defendants from completing the work, the measure of damages is the difference between the price agreed to be paid for the work, and what it would have cost the plaintiff to complete it. THE case is stated in the opinion of the Court. Myers v. The York and Cumberland Railroad Company. CURTIS, J. This action was referred under a rule of the Court, entered at the April Term, 1853, to John Davis, Marcus Morton, and Nathan Hale, Esquires, and after these referees had fully heard the parties, one of their number, Mr. Davis, died, and then Mr. Morton became so ill as to be unable to act. The parties thereupon agreed, that the remaining referee, Mr. Hale, should make an award, and he having done so, it was presented to the Court at the last term, and its acceptance moved by the plaintiff, and opposed by the defendant, only one Judge being then present, by consent of parties, the case was continued to the present term, when the defendants filed their objections to the acceptance of the award, as follows: United States of America, Circuit Court of the United States for Maine District. In the action John G. Myers, plaintiff, v. The York and Cumberland Railroad Company, defendants. And now at the September Term of said Court, the defendants in the above entitled cause come into Court and object to the acceptance of the award of Hon. Nathan Hale, as referee in the above action, and allege the following objections to the acceptance of the paper offered as an award of the said referee : First. That the said Hale has acted and awarded upon, and included in said award, damages for a subject-matter not referred to him. Second. That the said Hale has included in his said award damages for a claim not embraced in the plaintiff's writ or declaration, and not sued for in the above action, and not referred to his arbitration or decision. Third. That in and by his said award he has awarded to the plaintiff in said action damages for the non-delivery of the reserved stock specified in said writ and declaration, and in Myers v. The York and Cumberland Railroad Company. the contracts therein set out and copied, although the said reserved stock is not sued for, nor is any allegation made in the said writ and declaration that the same had been. demanded, nor was any proof of demand of the same offered at the hearing before said referee, nor was any claim for the same referred for his arbitration or decision. Fourth. That the said Hale has awarded damages to the said plaintiff, in lieu of profits for work not performed by the plaintiff, under his said contracts, contrary to law. Fifth. That there having been no proof or claim that the defendants, in fraud of the plaintiff's rights under his said contract, had taken the contract from the plaintiff and given it to any other person at a lower rate, or taken it for the purpose of giving it to any other party, at a lower rate, the referee has awarded a sum as damages to the plaintiff, for prospective profits not earned by him, contrary to law. Sixth. That it does not appear in and by said award whether the said referee has credited or charged the plaintiff with an amount of bonds deposited in the hands of Levi Morrell, under the terms of the supplementary contract dated February 6, 1851, and set out in said writ and declaration. Seventh. That it does not appear in and by said award what disposition was made by the referee, of an amount of bonds in the hands of D. C. Emery, the Treasurer of said Corporation. Eighth. That it does not appear in and by said award whether the said referee charged the said plaintiff with an amount of bonds in his hands purporting to have been issued by one Nathaniel J. Herrick, describing himself as Treasurer pro tempore of said Corporation. Upon these objections, by permission of the Court, the testimony of Mr. Hale, the referee, was taken, and the counsel of the respective parties having been heard, and the objections to the award considered, we will now state our opinion thereon. 1 Myers v. The York and Cumberland Railroad Company. The first three objections are statements in different forms, of the same thing. Their substance is this, that the referee exceeded his authority, by awarding to the plaintiff damages on account of certain stock of the defendant corporation, called reserved stock. This involves two inquiries: 1. Whether the referee did, in point of fact, allow such damages; and 2. Whether that subject-matter was referred to him. The first has been answered by the referee himself. He has testified "the value of the reserved stock, as estimated by me, was included in the damages I awarded." And it is insisted by the defendants, that the referee had not authority to include in his award a compensation to the plaintiff, for not receiving this stock. The argument is, that this was not a reference of all demands, but only of this action; that nothing was referred which was not sued for; that under the declaration in the case neither the reserved stock, nor its value, nor a compensation for not receiving it is demanded; that the referee therefore exceeded his power in awarding damages on this account, and as the amount of those damages does not appear upon the award, so that they can be separated from the residue of the damages, by the Court, the whole award is void. To the correctness of many of these positions the Court at once assents. This being a reference of the action, it was not competent for the referee to take into consideration any subject-matter, not substantially shown by the declaration. We say substantially, because formal defects in a declaration may be, and should be overlooked by a referee of an action under a rule of Court. He has not the power possessed by the Court, to allow them to be amended, but he may disregard them. Coffin v. Cottle, 4 Pick. 454; Forsyth v. Shaw, 10 Mass. R. 253. Still the declaration must in substance, embrace a subject-matter, to enable a referee of that action, under a rule of Court, to include that subject-matter in his award. We are of opinion also, that under our practice, the award it |