contract was contrary to the statute in such case made and provided, and was and is wholly void. And the defendant denies that there was any sale by the defendant to the plaintiff, or any purchase by the plaintiff, of said one hundred shares of said capital stock, otherwise or further than said contract for the sale thereof. (No. 19.) By common carrier; denials, with defence that the loss was caused by inevitable accident.' SUPREME COURT. Henry White Aaron Van Kirk and Samuel Ashton. These defendants, Aaron Van Kirk and Samuel Ashton, in answer to the plaintiff's complaint herein : First. Deny that on or about the 1st day of May, 1854, or at any other time, these defendants were, in connection, the owners of the said schooner Benjamin Browning, but aver that the said defendant, Samuel Ashton, was at that time and still is the sole owner thereof, and deny that the said defendant, Aaron Van Kirk, at the time in that behalf stated in said complaint, or at any other time, ran the said schooner in company with the said Samuel Ashton, or that they each shared in the profits and losses thereof. But they say that the said Aaron Van Kirk ran the same on his own individual account, he paying the said Samuel Ashton a compensation for the use of the said schooner; 1 To Complaint No. 55, Part III., ante, p. 457. the said Samuel Ashton having no agency in or control over the business done by the same. Second. And these defendants deny that they did on the 1st day of May, 1854, or at any other time, at Albany or elsewhere, as common carriers or otherwise, receive from the said plaintiff, well conditioned or otherwise, the barley malt, or any part thereof, mentioned in said complaint, to be carried or transported by them on said schooner, by the inland or canal route, or by any other route, from Albany, New-York, to Baltimore, in the State of Maryland, there to be delivered to the said plaintiff, as alleged in the said complaint, or otherwise. Third. These defendants, further answering, say, they have no knowledge sufficient to form a belief as to the value of said barley malt, the injuries or damage thereto, or the insurance effected thereon by said plaintiff; they therefore deny each and every allegation in that behalf stated in said complaint. Fourth. And these defendants deny that they were in any manner engaged together in the transportation of the said barley malt, upon any route whatever, or from any place to any other place whatever, or that by their carelessness or negligence the said barley malt was in any manner injured, or that thereby the said plaintiff has been damnified to any amount whatever. Fifth. And these defendants, for a further and separate defence herein, say, the said Aaron Van Kirk, upon his own knowledge, and the said Samuel Ashton, upon his information and belief, that the said Aaron Van Kirk alone received the said barley malt and undertook its transportation from the said city of Albany to the said city of Baltimore, and agreed to deliver the same, at the port of Baltimore, to the said plaintiff, or his assigns, in good order, dangers of the seas alone excepted; but that there was not upon its reception, or at any other time, any agreement made by or between the said defendants, or either of them, and the said plaintiff, by which the said barley malt was to be transported, as aforesaid, upon any particular route; but it was left to the election of the said Van Kirk to take any of the usual routes upon said voyage, and that he took the outland or ocean route, that being the most usual route, and one that he might lawfully take in the transportation of the said barley malt under his agreement for the transportation thereof, as aforesaid; and that upon said voyage, while in the waters of the Atlantic ocean, the said schooner then being well manned, staunch, and in good condition, with the said barley malt thereon, was met with a violent storm, in and by which the said barley malt was wet and injured, and that the injury was occasioned wholly by the act of God, arising from the dangers of the seas, excepted in said agreement, and without the fault of the said defendants, or either of them, or any person in charge of the said schooner, and could not have been prevented by any human practice, agency or foresight, which is the same injury whereof the said plaintiff hath in his complaint complained against these defendants. PIERSON, BEACH & SMITH, Defendants' Attorneys. (No. 20.) By a common carrier; general denial, with defence of special contract, by which plaintiff assumed certain risks of injury to the property delivered.1 SUPREME COURT. James H. Foster and Henry H. Mannahan The New-York Central Railroad Company. First. The answer of the defendants in this action denies each and every allegation in the complaint in this action contained. Second. And for a further answer and defence to the several causes of action in said complaint stated, the said defendants say, that the cattle in said complaint mentioned, delivered to the said railroad company, as therein mentioned, were so delivered by the said plaintiffs, and received by the said company, to be transported from Buffalo to Albany, under and by virtue of a special contract, made and entered into by and between said plaintiffs and said company, and not otherwise, whereby the said company agreed to send five cars of live cattle, for the said plaintiffs, from Buffalo to Albany, the cattle to be loaded by the owners thereof, or their agent, such owners or agent selecting the cars, and directing as to the number in each car, and assuming the whole risk as to the number in each car; and it was made an express condition in and by said contract that there should be no kind of liability on the part of the said company for any damages 1 The complaint to which this is an answer, is similar to No. 84, Part III., ante, p. 519. or injury which might arise from said cattle being unruly, disorderly, or from kicking, hooking, crowding or getting cast or thrown down while the cars were on the track. And the said defendants aver, that the said company performed all the conditions of said contract on their part,1 and that whatever injury accrued to said cattle was occasioned by and through the carelessness, want of skill and negligence of the said plaintiffs, their agents or servants, and by too large a number of cattle being put into each car, and by said cattle being unruly, disorderly, kicking, hooking, crowding and getting cast, whereupon the defendants claim and insist they are in no way liable for the alleged injury.2 O. H. PALMER, Defendants' Attorney. 1 As to pleading the performance of conditions precedent, see ante, p. 442, note. 2 This allegation is superfluous. |