Cunningham et al. vs. Bell et al. pezzos, which were to be advanced here on account of half profits of the Halcyon's cargo of sugar, not having been due from a default of profits, we considered ourselves authorized to act with a discretionary power; otherwise, be assured, that we never deviate from orders." This letter was never answered. Now the question for the jury is, under these circumstances, whether this omission of the plaintiffs to make an express declaration, that they would hold the defendants accountable for the breach of orders, and their subsequent silence and delay in bringing the suit, are to be construed as an implied acquiescence in, or ratification of, the acts of the defendants, or a waiver of the claim of the plaintiffs for damages. If so, then the plaintiffs cannot now, upon any after thoughts, reinstate themselves in any right of action. It is a question of fact, and must be decided by the jury upon the whole evidence. They will take into view the subsequent transactions to explain the delay in bringing the suit; and draw their conclusions accordingly. [The Judge here commented on these transactions.] If the jury shall be of opinion from the whole evidence, that the orders of the plaintiffs have been broken, in not purchasing the tiles, in the manner stated in the declaration, and that there has been no subsequent ratification by the plaintiffs, of the acts and proceedings of the defendants, then the plaintiffs are entitled to recover, and the remaining question is, as to the amount of damages. The counsel for the defendants contend, that the plaintiffs have suffered no damages; that the 2200 pezzos were actually invested in paper on the plaintiffs' account, and were thus received by the plaintiffs at Leghorn, and therefore he has lost nothing; and that, at all events, the measure of damages is the value of the 2200 pezzos at Leghorn, and not at the Havana. My opinion is, that no certain rule of damages can be laid to govern all cases of this nature. The plaintiffs are entitled to recover (if any thing) the real damages sustained by them. What those damages are the jury must decide upon all Cunningham et al. vs. Bell et al. the circumstances of the case. In estimating them, they are not bound to confine themselves to the state of things at Leghorn, and are not precluded from taking into consideration the nature of the return voyage to the Havana, the safe arrival of the Halcyon at that port, the state of the markets, and the profits, which might have been made by the plaintiffs, if their orders as to the tiles had been complied with. I can lay down no other rule for the government of the jury than this, that they are at liberty to compensate the plaintiffs for their actual damages sustained as a consequence from the default of the defendants; but they are not at liberty to give vindictive damages. They of course will deduct any benefit derived by the plaintiffs from the investment in paper, as an offset in the damages. At the close of the case, I have been called upon to give certain directions to the jury, which are so very complicated, that I am not quite sure, that I exactly comprehend them. If I do, they are, with a single exception, embraced in the preceding remarks. That exception is, as to supposed variances between the declaration and the proofs. So far as those variances depend upon the parol proofs in the cause, it is no part of my duty to decide upon them, for they are matters of fact for the consideration of the jury. The question of a variance between a paper declared on, and that offered in proof, is matter of law; but whether the proofs generally in the case support the declaration, especially when there are parol proofs on both sides, is matter of fact for the jury. It is contended, by the defendants' counsel, that the first new count in the declaration contains a material variance from the written proofs, because that count sets forth the letter of the 15th of September 1824 as containing the special contract between the plaintiffs and the defendants, and as the postscript to that letter contains a material part of the contract, and this postscript is not set forth in that count, as a part of the letter, but is wholly omitted, that the evidence offered by the plaintiffs in this Cunningham et al. vs. Bell et al. behalf does not support, and prove the contract, as in that count is alleged. I have not, at this moment, an opportunity to compare the count closely with the letter, and therefore I may mistake its exact import. But as I understand the postscript of the letter, there is no variance, in point of law, between the contract set forth, and the written evidence in the case. The postscript does not change the nature of the contract; but only shows, that 700 additional pezzos are applicable, as an advance, to the purchase. But the point is rather a matter of fact for the jury upon the whole evidence, and as such I shall leave it to them. [The Judge then gave his answer to the respective questions propounded by the defendants' counsel.] Verdict for the plaintiffs, $3439.24. After the verdict, a bill of exceptions was tendered to the Court and signed; and a motion for a new trial was also made by the counsel for the defendants. On its coming on for argument STORY J. said,-The motion for a new trial cannot be entertained, according to the practice of the Court, unless the bill of exceptions is waived. The party has his election, either to proceed upon a writ of error to the Supreme Court, in order to have it determined there, whether the points were correctly ruled at the trial; or waiving that remedy, to apply here for a new trial. But he cannot be permitted to proceed both ways. The ground for granting a new trial is, that the party is without other remedy. But that is not the case, where he files a bill of exceptions; for upon that he can take the opinion of the Supreme Court. It is most convenient for the due administration of justice, that where Cunningham et al. vs. Bell et al. a party means to apply to the appellate court for a final decision of the law of his case, he should so do with the least delay. The other party ought not to be burthened with the expenses of successive trials, until the law of the case is definitively settled by the final tribunal. Motion overruled. JOHN BHOLEN AND ANOTHER vs. AARON P. Cleveland and another. Where goods, on consignment at Boston, were, on the failure of the owners, assigned for the benefit of creditors, and before notice of the assignment could be reasonably given to the consignees, another creditor of the debtor's attached them, by a trustee process, in Boston, the debtor and the creditors being citizens of the state of Pennsylvania; it was held, that the assignment, if bona fide, was a sufficient title to pass the goods to the assignees, and would overreach the trustee process. TROVER for certain cases of merchandise. Plea, not guilty. At the trial, the facts appeared to be these. The firm of George & Alexander Holdball, of Philadelphia, consigned the goods in question to the defendants at Boston, and afterwards, on the 5th of April 1825, failed, and assigned their property, including these goods, to the plaintiffs, who were their creditors, for the benefit of their creditors generally. At the time of their failure, they were indebted to John Evans of Philadelphia; and, on the same day on which the assignment was made in Philadelphia, Evans wrote a letter to Boston directing a suit for his debt, against the defendants, as trustees of G. & A. Holdball. On the 9th of April 1825, on the arrival of the mail and the receipt of this letter, a process issued accordingly from the State Court, and the defendants were sued as trustees. The plaintiffs, as soon as they Bholen et al. vs. Cleveland et al. reasonably could afterwards, made a demand upon the defendants for the same goods, offering to pay them their commissions and charges. The defendants refused to deliver them. The trustee process is still pending in the State Court. The question was, whether, under these circumstances, the plaintiffs were entitled to recover. The cause was shortly argued by Webster for the plaintiffs, and by Sewall and Aylwin for the defendants. STORY J. The whole controversy turns upon this single point, whose was the property in these goods at the time when the trustee process was served? It is to be recollected, that this is the case of a general assignment made in Philadelphia, and the plaintiffs, as well as Evans, are citizens of the state of Pennsylvania. Their rights are, therefore, to be judged of by the laws of that state. It is not denied, that general assignments of this nature in favour of creditors, if bonâ fide, are valid, by the laws of that state, to pass the property contained therein. It is not denied, that the present assignment is bonâ fide and valid in its execution. The ⚫ question is, whether it was legally sufficient to convey goods locally situated in Boston. As against the assignor himself, there can be no doubt. No immediate delivery was practicable; nor is it necessary in cases, where goods are not at the time within the reach of the parties. It is sufficient, if the assignees perfect their title to the goods, within a reasonable time afterwards, by a notice of their title and demand of the goods, or obtaining an actual delivery. After the assignment, the consignees held the goods for the benefit of the persons, who had the legal title thereto. The assignment worked an immediate transfer of the ownership. If the law be so, as against the assignor, how can his creditor, Evans, be in a better situation? At the time of the service of the trustee process, the goods were no longer the property of the Holdballs. They had transferred them to the plaintiffs. It was not a race of diligence, where the first, who could attach them, |