give him good indorsed paper. Cross's name was mentioned as the person who would probably indorse for McGervey. Moore agreed to take his indorsement. Accordingly, McGervey applied to Cross for his indorsement, and stated to him what he wanted it for. Cross agreed to indorse. Notes were drawn up in Cross's handwriting, in which McGervey was maker, payable to the order of Moore. McGervey signed the notes, Cross indorsed them. McGervey took them to Moore, who upon the faith of the paper thus indorsed, delivered to McGervey the amount in value of coal.

The notes were afterward protested. Moore, the holder, sues the maker, McGervey, and indorser, Cross, setting forth the contract of sale, which presents the question fairly.

Can a holder, who is also a payee recover of an indorser who has indorsed for the purpose of giving the maker a credit with such payee-or, in other words, can a first indorser recover of a second indorser, under circumstances like those before detailed?

This cause has been tried twice, and argued three times on appeal. The pleadings on the first trial were an ordinary complaint on the promissory note and an answer. Verdict was had for plaintiff. Appeal was taken, and the verdict was set aside, with liberty to amend. Amendment was had. On the second trial, verdict went for the plaintiff again. Defendant appealed. After argument had before general term, held before Justices Roosevelt, Davies, and Clerke, the verdict was set aside. The plaintiff moved for and obtained a re-argument, and, after a re-argument before Justices Roosevelt, Mitchell, and Davies, the judgment was affirmed.

WHAT CONSTITUTES DELIVERY OF MERCHANDISE.

The St. Louis papers report a recent decision of the Supreme Court of Missouri on this important question. The defendant had purchased of plaintiff five hogsheads of sugar lying on the wharf. The hogsheads were weighed and marked by the City-Weigher of St. Louis, and a certificate of the weights and marks, together with a bill for the sugar, was delivered to him. Two days afterwards defendant sent his dray for the sugar, but only four hogsheads could be found, which four he hauled away and paid for, but refused to pay for the fifth, for which plaintiff brought suit and recovered. Judge Scott, delivered the opinion:

"When goods are so ponderous and bulky, that they cannot be manually delivered, or when they are not in the personal custody of the seller, the law does not require an actual delivery, but only that they be placed in the power of the purchaser, or that his authority as owner be acknowledged by some formal act or declaration of the seller. The law never insists apon an actual delivery where it would be impracticable. The delivery of the key of the warehouse in which the goods sold are deposited, or the transferring them on the books of the wharfinger or warehouse keeper to the name of the buyer, with mutual consent, or the delivery of the receipt ticket, sale note, or other ordinary evidence of titles to goods, in the situation of goods sold, is a sufficient delivery of them. The marking of a bale of goods, in a warehouse, with the vendee's name, is a sufficient delivery to vest title, when the contract is otherwise complete. So, if the vendor show ponderous articles, such as logs lying in a boom, this is a delivery, though the vendee allow them to remain there; for this is the only practical way of making a delivery of such articles, and the law requires such a delivery as is consistent with the nature of the thing. Ordinarily, the place of delivery is that where the goods are at the time of sale, unless it is shown that the parties otherwise intended." Story on Contracts, sec. 810.

WAGER CONTRACTS-GUARANTY.

Supreme Judicial Court of Massachusetts-Before Chief Justice Shaw. John Elliot, et al., vs. Francis B. Hayes, et al., Executors :

This is an action upon the following contract made by the plaintiffs and defendants testate Thomas J. Lobdell :

"This agreement, made this first day of March, Anno Domini one thousand eight hundred and fifty-two, by and between John Elliot, James B. Elliot, and John Henry Elliot, of Keene, on the one part, and Thomas J. Lobdell, of Boston, on the other part, witnesseth, that the said Lobdell guaranties and assures the said Elliots that the share dividends of the Cheshire Railroad Company for the term of ten years from and after the first day of January last, shall amount ⚫ to the sum of five dollars annually on each share of the preferred stock of said company to the extent of three hundred shares; and if said dividends shall not amount annually in the term aforesaid to the sum aforesaid per share, the said Lobdell hereby promises to account for and pay the said Elliots any and all deficiencies that may exist in that behalf to the extent named above. And the said Elliots agree to and with said Lobdell, in consideration of the above guaranty and assurance, that if the annual share dividends on said company's preferred stock shall exceed five dollars per share for the term of ten years from the first of January last, the said Elliots will account for and pay said Lobdell all such excess as may accrue on three hundred shares of said stock.

"And it is understood and agreed by the parties hereto, that the indebtedness arising under this contract, shall become due and payable on the first day of January of each year, commencing January first, of the year one thousand eight bundred and fifty-three."

The defense set up by the defendants is that the contract is a wager contract, and so void. The court below sustained the objection, and the cause comes here upon appeal by the plaintiffs. Metcalf, J. The defendants testator by an instrument under seal, guarantied that the plantiffs should for ten years receive yearly dividends of five dollars on each of their shares to the number of three hundred of the preferred stock in the Cheshire Railroad. No consideration besides that which the seal imports was necessary to the validity of this guaranty. Yet it appears that there was a sufficient actual consideration for it in the plaintiff's engagement to pay the testator all, that the yearly dividends might exceed five dollars on a share. Those dividends have fallen short of five dollars, and this action is brought to recover the deficiency. The action is defended on the alleged ground that it is on a mere wager, and if it were on a wager contract we should not sustain it. But it is not. The contract not only in words, but also in its plain design and purpose, is a guaranty to the plaintiffs of a certain yearly profit on railroad stock owned by them, and nothing on its face or in the facts agreed discloses any illegality or unfairness. We therefore cannot find any reason why the plaintiffs should not recover.

In Kirby vs. White, (2 Mil. & K., 131,) a contract by which defendant guarantied to the plaintiff that the net profits of his business should amount, for a certain time, to a specified sum, was enforced in chancery, no question being made as to its validity. And in Newmarket Railway Company vs. Church-Wardens, &c., of St. Andrew the Less, (3 Ell. & Blackb., 94,) no doubt was intimated as to the validity of an undertaking to secure to a railway company a yearly dividend of three per cent on its share capital.

If the contract in the present case had been put into the form of a policy of insurance, it is certain that it would not have been a wager policy, (3 Kent Com., 6 ed., 275. 276; 1 Arn. Ins. 17, 276; Smith on Contracts, 4 Amer. ed., 258, 239.) Judgment for the plaintiffs. Henry C. Hutchins, for the plaintiffs; Francis B. Hayes and Chas. F. Choate, for the defendants.

COMMERCIAL CHRONICLE AND REVIEW.

GENERAL INDICATIONS OF PROSPERITY-PROPHETS OF EVIL STILL BUSY-CONSIDERATIONS IN REGARD TO WHAT CONSTITUTES SUCCESS OR FAILURE-THE FACTORY THAT WAS SUCCESSFUL WITHOUT DECLARING A DIVIDEND-RAILROADS SUCCESSFUL IN THE SAME SENSE-MONEY AND STOCK MARKETS-THE GOLD PRODUCT AND COINAGE-THE BANK MOVEMENT IMPORTS AND EXPORTS AT NEW YORK-EXPORTS OF DOMESTIC PRODUCE THE CROPS AND MOVEMENTS OF BREADSTUFFS, ETC, ETO.

THE Country continues prosperous, and none of the troubles which threatened us early in the season have thus far overtaken us. We have passed through the summer, blest with unusual abundance in every department of agricultural labor, and without any serious commercial or financial difficulty. The croakers, however, are as busy as ever, and those who predicted "a crisis" in consequence of the anticipated failure of the crops, now foresee a collapse, of a character no less alarming, from our cereal abundance. Meanwhile the masses of the people are industriously engaged in productive pursuits, and there can be no permanent distress while such engagements are continued.

That there has been a change in the general currents of trade no watchful observer will be disposed to deny, but such changes must be many in a country whose resources are so rapidly developing, and it does not follow that a new phrase of prosperity may not be an improvement on the old. Some point to the depreciation in the market value of railroad securities, and assert that such a decline is indication of the failure of the system; but the evidence is by no means conclusive. We remember that in a certain town in New England, where the soil is thin, and productive industry was at a low ebb, the principal men assembled to devise some method of restoring activity to trade. As there was a large water-power in the village, wholly unoccupied, a factory was resolved upon, and the enterprise was carried to a successful issue. The shares were fixed at $100 each, and every one interested, who had that amount of money, invested that or more in the company. The man who owned the land where the factory was to be built, took a handsome amount of stock; each of the merchants followed his example; the doctor took a few shares; the shoemaker and tailor did the same; and all the farmers in the vicinity contributed more or less to the undertaking. Plain cotton fabrics were resolved upon, as requiring the least skill and the simplest machinery, and the music of the shuttles was at last heard in the hitherto quiet valley. All of the ready money in the place had been exhausted before the goods were ready for market, but a commission merchant in the city advanced a little floating capital on condition that the product of the mill should be consigned to him. It is nearly twenty years since the foundation stone of this factory was laid, and we now come to the question of its success. A stranger, who might in. quire, would be told that the factory had never yet made a dividend, and that the stock could be bought at 30 per cent of its par value; he would therefore chronicle the enterprise as a failure. And yet, looking at it with other eyes, is it not a success? It has accomplished the object for which it was commenced. It changed the quiet dull old town into an active thriving market. Real estate quadrupled in value; the merchants have grown rich upon the increased demand. for their wares; the doctor increased his income from $400 to $1,200 per annum; the tailor and shoemaker have left the goose and the awl to others, having each

a competency; the farmers found the increased demand for dairy and farm products, at higher prices, a tenfold equivalent for all their stock in the mill; the young people of the place, as they grew up, found profitable employment at home, instead of being obliged to seek a distant field or workshop; life to the poorest became less a burthen when there was so much light work offered to busy fingers, that but for it must have hung down in helpless idleness. The population of that town is now 2,500 instead of 900, the limit when the factory was projected, and the dwellings have increased, not only in number, but in comforts and conveniences. Is not this a success? If the capital invested in the factory had been sunk in a life annunity, could it have been as productive? If the sole object had been a return on the capital stock, it would have required far different management to have accomplished it; but the object was to furnish the means of a comfortable livelihood to the people, to prevent the decay of the dear old town, to build up its substantial prosperity by keeping its growing energies in full employment at home. If this has been done, where is the failure, even though some of the croakers looking at the depreciated stock may exclaim that "manufacturing is not profitable !"

Look at the railroad system in the same light. Where is the road that was started exclusively to make money by the carrying of passengers and freight, with no other principal or collateral interest to serve? Find such a one, and we venture to say that it has paid a dividend. But most of the roads are commenced with other objects. Owners of real estate wish to increase the value of their lands; persons at a distance from market desire the facilities of a speedier communication; almost every one who subscribes to the capital stock of a railroad does it from some other motive than the simple desire to invest his money where it will make a profitable annual return in the shape of cash dividends. There may be disappointment to many, but the majority, we believe, accomplish, wholly or in part, the object they had in view. They may have done this at a sacrifice of capital greater than they anticipated, but almost every object in life costs more in the attainment than we provide for in our estimates. Those who are most disappointed, probably, are the speculators who dabble in the stock after it is issued, buying at what they deem a low price, in the hope of selling out at a higher rate. As a whole the railroads of the country are a success; they have developed the resources of the interior in a most wonderful manner; they have built up towns and villages in what, but for them, would have been a wilderness, and they are enabling us to furnish from our fruitful valleys on our inland rivers, food for other and distant nations. They have, as a consequence, attracted hitherto a tide of emigration which brings to the country more real wealth in sinew and productive energy than could come to us through any other channel. These emigrants settling down, as a vast majority of them do, amid the Western and Southern fields, otherwise vacant, give new life to trade and commerce through all our borders.

Amid all this pressure of substantial prosperity, there must be some over-excitements and occasional drawbacks. Speculations in Western lands have been thereby unduly stimulated, and have probably run a little ahead of the times. Wheat and corn have sold at such high rates during the brief failure of the crops in the old country, that the value of farming lands have been run up above their

fair average, and we look for a reaction, especially throughout the far West. Our young men have gone out to the Mississippi, leaving their farms in the older States, because grain was wanted for export at a price which paid far better as a whole than the cultivation of ordinary farm produce for a local market nearer home. The reaction will probably bring down fictitious values in new districts, and increase the comparative value of older estates. When wheat will not bring one dollar a bushel at Chicago, good farming land in Connecticut is cheaper at $30 per acre, than the prairie fields in Iowa at their late nominal rate. We do not expect this reaction to be permanent or excessive; but it will change the channels of trade, although, as we have said at the beginning, it will not be necessarily disastrous.

Money continues in active request at very full rates of interest. At the West 10 a 12 per cent is freely offered for permanent loans, while temporary accomodations are worth a still higher rate. On the seaboard, the rates are reversed, loans on call being effected at 7 a 8 per cent, while business paper sells at the note brokers at 9 a 15 according to quality.

The stock market is generally higher for State securities and other undoubted issues; but the fancy stocks continue to fluctuate very widely, and large fortunes are made and lost by reckless speculators.

The production of gold at California appears to have been very steady, although this is the ninth year since the "diggings" were tenanted. The following will show the business at the Assay-office in New York during the month of July :—

DEPOSITS AT THE ASSAY-OFFICE, NEW YORK, FOR THE MONTH OF JULY.

The following is a statement of deposits and coinage at the Mint of the United States, in Philadelphia, during the month of July, 1857 :

Silver, including purchases.....

129,570 00

Spanish and Mexican fractions of a dollar received in exchange for new