this Court on review, must consider all the proceedings as relating to the time of filing the bill, and decide the cause according to the actual rights of the parties appellees at the time they were arrested, at the instance of appellants, by injunction, from proceeding with a work, which we hereby hold was then legitimately authorized. If by reason of the delays incident to the litigation the appellees have lost their right to finish their work, it is their misfortune; but the appellants cannot maintain their appeal by reason of it. The injunction granted originally, on complainants' prayer, ought not to have been granted when it was granted, therefore the final order dissolving it was correct. In addition to the reasons already assigned, it may be well to add, that to hold otherwise on this point would, in effect, be declaring a forfeiture of appellee's charter, in an incidental way, without any proceedings instituted for the purpose. We think the decree of the Circuit Court dissolving the injunction and dismissing the bill was right. Decree affirmed with costs.

MCALLISTER

v.

CHICAGO, R. I. AND P. R. R. Co.

(Advance Case, Missouri. October Term, 1881.)

Certain cattle while in transportation were unloaded from the cars of the company, and were then illegally seized under a writ for an alleged violation of the statute of the state prohibiting the introduction of Texas, Mexican, or Indian cattle into the state, and subsequently were sold to satisfy the fine, the costs of the proceedings, and the forage and care of the cattle. Held, that the company was not liable for the loss of the cattle, upon the allegation of a wrongful unloading, the damages being too remote.

Where the legislature have enacted a law, which has not been judicially declared to be unconstitutional, a private person is not bound at his peril in damages to know that the law is unconstitutional and void.

ERROR to De Kalb Circuit Court.

The facts sufficiently appear in the opinion.

RAY, J., in delivering the opinion of the court, said: This is not a suit to recover damages arising from delay in the transportation or delivery of freight or from a depreciation in the weight or market value of said cattle by reason of anything done or omitted by the defendant. On the contrary, the plaintiff seeks to recover damages for an alleged wrongful unloading of his cattle from certain cars, contrary to his directions and wish; whereupon certain other parties, entire strangers to the defendant, and over whom it had no control, acting under the forms of the law, caused his arrest

and the seizure of his said cattle for an alleged violation of the statute of the state, prohibiting the introduction of Texas, Mexican, or Indian cattle into this state, except under certain limitations and restrictions therein contained. In this connection it is further charged that the plaintiff was thereupon summarily tried and convicted of said charge, and his fine assessed at the sum of $100, which, with the costs of said proceedings and taking charge of and feeding said cattle, amounting to the sum of $216.10, was adjudged against the plaintiff in said proceedings; that plaintiff was allowed no time to procure evidence that said cattle were not Texas, Mexican, or Indian cattle; and that the said cattle were all sold to satisfy said fine and costs, and then and thereby became, and were, a total loss to the plaintiff. From this statement it is manifest that his said damage is the direct and immediate result of said arrest and seizure by said third parties, for whose conduct and acts this defendant is in no way responsible. In such case it is clear that said alleged wrongful unloading was not the proximate cause of said loss or damage. It is not even alleged that except for the unloading the arrest and seizure could not and would not have taken place, nor are any sufficient facts stated, whereby it became, and was, the duty of the defendant not to unload them. In the absence of any such statement, defendant certainly had no right to anticipate or apprehend any such consequences as followed. It is clear, we think, from all the authorities, that such consequential damages are too remote, and cannot be held under the facts in this petition to have been within the contemplation of the parties to the agreement and shipment when the same was made. Cutting v. R. R. Co., 13 Allen, 381-384; Hadley v. Baxendale, 9 Exch. 354; Clemens v. R. R. Co., 53 Mo. 366; R. R. Co. v. Ragsdale, 46 Miss. 458.

We are told by the plaintiff in error that the statute under which he was arrested and fined has since been held unconstitutional. We do not see how this can help him. If the law was invalid it was not unlawful to unload the cattle in Cameron; besides that, he nowhere charges or admits that his cattle came within the purview of that statute. If they did not it is immaterial whether the same be valid or invalid. In no event is he liable to its penalties or the defendant a wrong-doer by reason of having unloaded them at the place charged, provided no unnecessary delay in their transportation was necessarily occasioned thereby. The fact that they were thereupon seized by third parties (over whom the defendant had no control) under the forms of the law, and were ultimately sold to satisfy the fine and costs adjudged in said proceedings, and were thereby lost to the plaintiff, does not render the defendant liable for the damage thus sustained. It is not sued for improperly surrendering the cattle to an officer under void process. And if it was, the writ, if not void on its face, would justify the officer and protect the defendant in surrendering the cattle thereunder. It is not

charged that the writ was invalid upon its face. The defendant was not bound to know that the law, under which the proceedings were had, was unconstitutional. The legislature had enacted it under all the forms of the Constitution; the judicial proceedings thereunder were regular on their face, and up to that time no court had ever declared the same unconstitutional and void. But in any event, whether the law be valid or invalid, the damages in question were the direct result of said legal proceedings instituted and carried out by third parties, who were entire strangers to the defendant, and for whose acts and doings, whether right or wrong, it is in no way responsible. In no event was the unloading of said cattle the proximate or necessary cause of said loss. The defendant was not bound to anticipate, or apprehend that such proceedings, whether right or wrong, would be instituted, and the damages so resulting are too remote to be chargeable on the defendant. There is, therefore, no error in the record, and the judgment is affirmed. Judgment affirmed.

FREDERICK CHAFFEE

v.

THE RUTLAND R. R. Co. AND TRUSTEE.

(53 Vermont Reports, 345. February Term, 1881.)

An action based upon a written contract itself can only be brought against the party named in the instrument; hence, an action of assumpsit cannot be maintained against a railroad company, based upon a written contract, signed by, and in the name of, the trustees of the mortgage bondholders of

such road.

There could not be a novation of parties in this case; because the trustees had bound themselves, not binding the company, and one of them was also president of the defendant company; and acting in this double capacity, he could not contract with himself; could not discharge himself and put the company in his place.

A Court of Chancery could charge upon the trust property the legitimate expenses incurred in managing it; but not even this upon the bondholders personally.

Distinction between the powers of an agent and trustee.

The plaintiff, being a stockholder in the defendant company, is charged with knowledge of the capacity in which the trustee was acting.

Action of asSeveral quesbearing upon

THIS case was tried at May Term, 1879, BARRETT, J., presiding. Trial by the Court, and judgment for the plaintiff. sumpsit on a written contract; plea, non-assumpsit. tions were raised in the court below; but the facts the case as decided by the Supreme Court sufficiently appear in the opinion, except the contract, which is as follows:

RUTLAND RAILROAD COMPANY.

I, Frederick Chaffee, of Rutland, propose to deliver on the line of the Rutland Railroad, at Ludlow Station, and near Ludlow Station, on the line of said Railroad, twelve thousand cords of mixed wood, at four dollars per cord, to be one half hard wood and one half soft wood, to deliver from one to two thousand cords per annum until the twelve thousand cords is delivered. . . . (Here follows a description of the wood, how to be cut, piled, etc., etc.) Dated at Rutland this first day of Dec. A.D. 1870. F. CHAFFEE. Rutland, Vt., Dec. 1st, 1870.

The foregoing proposal of F. Chaffee this day accepted. Payment to be made within thirty days after delivery, measurement, and inspection.

By I. J. Vail.

JOHN B. PAGE,

Trustees 2d M.

E. A. BURCHARD, B. R. & B. R. R.

James C. Barrett, for the plaintiff.

As to the novation or substitution: The findings of the County Court upon the question of fact are conclusive. The exceptions show the following:

"Said company (the defendant) assumed to be the party of the second part, and the plaintiff understood it to be so, and upon that understanding went on under it as above set forth."

Two things are plain: First,-Upon the facts relied upon by the defendant, touching the point in question, no implication whatever arises as matter of law. Secondly,-Even if such implication of law would arise in the absence of a finding of the fact to the contrary, yet, such fact being found, the fact must prevail. Conventio legem vincit.

Actual delivery overcomes any presumption arising from any act of measuring, or the like, remaining to be done. Benjamin on Sales, s. 331, and note h.; and cases there cited; Ib. s. 346; Ib. 334, note t., 13 Pick. 183; Sumner v. Hamlet, 12 Pick. 76; Kelsea v. Haines, 41 N. H. 254; Reporter, Feb. 11, 1880, 182; Hanson v. Meyer, 6 East, 614; Benjamin on Sales, 257, n. f.; Ib. s. 311, n. c.; Ib. Bk. II., Part II., C. III., IV., V.; Gibbs v. Benjamin, 45 Vt. 124; Ward v. Shaw, 7 Wend. 404; Tyler v. Strong, 21 Barb. 198, 206; Fitch v. Burk, 38 Vt. 683, 689.

Prout & Walker, for the defendant.

The written contract was not the contract of the defendant. Has there been in law a substitution either of parties or of liability? This can result only from agreement. There must be a mutual agreement between all the three parties, the creditor, his immediate debtor, and the intended new debtor, for the substitution of the new debt in the place and stead of the original debt. 1 Addison on Cont. 530, s. 373; Wilsford v. Wood, I Esp. 183; Forth v.

Stanton, 1 Saund. 211; Thomas v. Shillibeer, 1 M. & W. 124; Caxon v. Chadly, 3 B. & C. 591; Price v. Easton, 4 B. & Ad. 433; Cochrane v. Green, 9 C. B. (N. S.) 448; Shaffer v. Henkel, 75 N. Y. 375.

Besides, it is not found as a fact that the original debtors were ever released, or that the parties ever had any communication upon the subject. Anderson v. Davis, 9 Vt. 136; Watson v. Jacobs, 29 Vt. 169; Williams v. Little, 35 Vt. 323; Fullam v. Adams, 37 Vt. 391; Cole v. Shurtliff, 41 Vt. 311; Newall v. In

graham, 15 Vt. 422.

Acceptance necessary to the passing of the title. Rider v. Kelly, 32 Vt. 268; Carpenter v. Brainard, 37 Vt. 147; Hodges v. Fox, 36 Vt. 81; Boardman v. Keeler, 21 Vt. 78; Gibbs v. Benjamin, 45 Vt. 124; Outwater v. Dodge, 6 Cowen, 85; Downer v. Thompson, 2 Hill, 137.

The opinion of the court was delivered by

Ross, J. The plaintiff seeks to recover on a contract in writing made and signed by him of the first part, and John B. Page and E. A. Burchard, trustees of the second mortgage bonds of the Rutland and Burlington Railroad Company, of the second part. To entitle himself to recover thereon he must show, either that the defendant was the principal and Page and Burchard its agents in making the contract, or, that the defendant had become the second party to the contract by novation.

I. The case was tried by the court; and from the facts found and stated in the exceptions, it appears that Page and Burchard, as trustees of the second mortgage bondholders of the Rutland and Burlington Railroad Company, took possession of the road, and operated it several years; that in the meantime a charter was obtained from the Legislature in the interest of the second mortgage bondholders, the mortgage foreclosed, and the defendant company organized thereunder, in July, 1867; that subsequently to the organization of the defendant company the trustees as such continued to operate and manage the road, "by permission or procurement" of the defendant, "and in its interest until upon the settlement of their accounts as trustees, said road, on the 8th day of February, 1871, went into the possession and management of the lessees," the trustees and managers of the Vt. Central and Vt. and Canada Railroads, by a lease dated Dec. 30, 1870; that John B. Page has been the president of the defendant company since its organization; and that the contract, on which recovery is sought to be had, was first verbally entered into about the time, and just after, the defendant company was organized, and was to continue in force by its terms from eight to fifteen years, but was reduced to writing and executed in its present form, Dec. 1, 1870. John B. Page, during this time, was acting in the double capacity of president of the defendant company, and as one of the trustees