4. But if there is anything in the special clauses more than a notice to persons storing goods, it must be shown that there was an assent to its provisions. 5. But there was no receipt in existence when the demand was made. The plaintiff was identified as the holder of the bill of sale. Judgment reversed, costs to abide the event. Opinion by Sedgwick, J.; Monell, C. property was stored by a former owner. ownership, by resorting to an interNo receipt was given at the time. After- pleader. wards the said owner made a bill of sale in form to the plaintiff, and it ended:"This sale is made on this express condition, that I shall have the right to redeem the above described property at any time within one year." The plaintiff went with the agent of the former owner, and who had stored the furniture, to the defendant, at his store house, showed him the bill of sale, and demanded the delivery of the property. The defendant then delivered to the agent a paper called the J., concurring. "storage receipt." It was headed with several special clauses, among which were these "No goods delivered without a written order or the presentation of original receipt." "Goods will not be delivered to any person unless fully identified and authorized to receive them." Then followed a simple receipt of the goods as from the owner, signed by the defendant. This paper was then handed to the plaintiff. The defendant in reply to the plaintiff's demand, said he could not give up the furniture without an order from Miss Woodward, who had signed the bill of sale. On the plaintiff's case, the complaint was dismissed on the ground that under the contract of storage, the defendant was not bound to deliver the furniture to any one, except by the written order of Miss Woodward, in whose name and on whose account they were stored, and that the defendant by his refusal to deliver the property to the plaintiff did not wrongfully detain it. On appeal, WARRANTY EVIDENCE, SUPREME COURT OF PENNSYLVANIA. The Decided October 18, 1875. When there is no fraud or deceit in the sale the purchaser cannot rescind, return the goods and recover the price paid, unless the vendor consents, proper remedy is for a breach of the warranty, and the measure of damages will be the difference between the actual value of the property, and its value, if sound, with interest from the day of the sale. Error to the Common Pleas of Lehigh County. Action upon an alleged breach of warranty. Plea, non assumpsit. The mare was sold for $150 on the 13th of November, 1872, and her eyes were, at that time slightly clouded. She was returned to the defendant's stable, in his absence, on the 25th of the same Held. 1. The bill of sale gave the right month. of possession to the plaintiff. 2. That no condition put in a storage receipt, will avail to defeat the ownership The mare was sold as an estray for about $150. The Court below rejected the fourth and the right to possession in any pur-point of the defendant, which was as chaser of the property. The receipt was follows:-Plaintiff alleging a warranty, not a lien, and did not affect the title to and having declared thereon, and there the property. 3. The storekeeper can protect himself, if he has any serious doubts as to the being no evidence of an acceptance by defendant of the mare brought back by plaintiff in defendant's absence, and de fendant having refused to receive the after it has been executed, but his only mare, and having disposed of her as an estray, the mare, or the value thereof, is to be considered as the property of the the plaintiff." Verdict for plaintiff for $168 25, and and judgment, and the defendant assign ́ed error. remedy is an action on the warranty. In this case it is not alleged that the defendant was guilty of any fraud or deceit in the sale and warranty of the mare, nor is there any evidence that he knew, or had any reason to believe, that her eyes were permanently and incuraOpinion, It was clearly competent bly diseased at the time of the sale. The for the plaintiff to prove that when he plaintiff, therefore, had no right to rej purchased the mare, in November, 1872, turn the mare, and the defendant was her eyes were diseased, and in order to not bound to take her back and refund show that the disease was not temporary, the price. It follows that there was but permanent and incurable, that it con- error in overruling the defendants offer tinued until November, 1873, when one to show that he refused to accept the of her eyes became wholly blind, and the mare when she was returned by the plainsight of the other was greatly impaired. tiff, and that soon afterwards she was But evidence as to the condition of her sold as an astray for about the same eyes in November, 1873, was not admis- price plaintiff paid for her; and for not sible per se, for the purpose of showing charging as requested in defendant's that they were diseased at the time of the fourth point, that the mare, or the value sale, and it should not have been received thereof, is to be considered as the propif there was no evidence tending to show erty of the plaintiff. The defendant what their condition was during the ten had the right to show the price for which months immediately preceding the date. the mare was sold, as a stray, by the If the defendant was guilty of fraud, in constable, as evidence of her value at the the sale and warranty of the mare, the time of her sale to the plaintiff; and he plaintiff had the right to rescind the con- was entitled to the instruction prayed tract, and upon returning, or offering to for, in order to limit the plaintiff's rereturn her, to recover back the price covery to the difference between the the price paid in an action on the case actual value of the mare and ber value, for deceit, or in an action of assumpsit or if sound, as warranted, with interest case for the fraudulent warranty. (1 thereon from date of her sale. Chit. Pl. 137.) But if there was no other assignments of error are not sus fraud or deceit in the sale, the plaintiff tained, but for the reasons given the had no right to rescind the contract for judgment must be reversed. the alleged breach of warranty, and to return the mare without the defendant's consent. (Rose v. John, 10 Watts, 107; Sedgw. on Damages, 286-7.) It is true that he might sue either in assumpsit or case for the breach of the warranty (Vanleer v. Earle, 2 Casey, 277), but the measure of his damages would be, not the consideration or price paid, but the difference between the actual value of the mare, and her value, if sound, with interest from the date of the sale. When there is no fraud or agreement to return, the vendee cannot rescind the contract The Judgment reversed, and a venire facias de novo awarded. Opinion by Williams, J. ERRATUM. For the first head note on page 363, read: When the title of property is not in issue, and there is no proof of the value of the lease of it, an extra allowance of $4,000 is unauthorized in such a case as the following. United States for the District of New On motion. Opinion, It is clear that after an appeal in equity to this court, we cannot, upon motion, set aside a decree of the court below and grant a rehearing. We can only affirm, reverse, or modify the decree appealed from, and that upon the hearing of the cause. No new evidence can be received here. (Rev. Stat., sec. 698). The court below cannot grant a rehearing after the term at which the final decree was rendered. (Equity Rule 88). It would be useless to remand this the decree was rendered has passed. If the term still continued, the proper practice would be to make application to the court below for a rehearing, and have that court send to us a request for a return of the record, in order that it might proceed further with the cause. Should such a request be made, we might, in a proper case, and under proper restrictions, make the necessary order. But we cannot make such an order on the application of the parties. The court below alone can make the request of us. The application of the parties must be addressed to that court and not to us. Opinion of Mr. Chief Justice Waite. This is a certiorari which brings up only the record of the Court of Quarter Sessions. The remedy for any alleged cause therefore, as the term at which error in the finding of the facts by the viewers lies in the court below only, and not here. The viewers certify that they were duly sworn. If they were so sworn they undertook to perform the duty enjoined by the law, part of which was to make a true and conscionable appraisement of the damages, taking into consideration the probable advantages and benefits which any owner will be likely to sustain by reason of the proposed improvement. When they report that an owner will sustain no damages, we must presume that this conclusion resulted from the comparison of the injury with the advantages and benefits he will receive. If they do not consider the benefits, the court below only could correct their omission. We discover no substantial error in this record. Order of the court confirmed at the costs of the plaintiffs, and record ordered to be remitted. APPEAL PRACTICE. SUPREME COURT OF THE UNITED STATES. Roemer et al. applt. v. Simon. Decided at Oct. Term, 1875. A rehearing below can only be had at the term at which a final decree was rendered, and then only at the request of the court below. BAILMENT. SUPREME COURT OF PENNSYLVANIA. Decided October 25, 1875. The lease of the piano was a continuing lease, to be terminated only at the option of the plaintiff if the rent should be unpaid. No offer was made to show that the lease had been terminated, and the piano suffered to remain in the hands of Appeal from the Circuit Court of the Wilson, the lessee, as his property. His declarations of property, or the acts of other parties in attempting to treat the piano as his, could not, therefore, affect his lessors. The property remained in bailment, and consequently was not liable to a sale for payment of his debts, or for taxes. Possession under a mere bailment for hire is not a constructive fraud, otherwise much of the business of men would be ended, and the poorer the bailee the less would be his liability to hire the use of property needful to him. We see no error in rejecting the defendant's offer. Judgment affirmed. CANAL APPRAISERS. Held, That the limitation to one year after the injury in the act of 1866, (chap. 836, Laws of 1866,) did not apply, as the act of 1870 first conferred jurisdiction to hear such a claim; that it matters not how old the claim was; if it was filed according to the terms of the act, the appraisers had jurisdiction. As to whether under the act of 1870 the appraisers were bound to disregard the statute of limitation, and allow all claims without reference to their age, for which, if presented against an individual, there would have been a legal liabity, quere? If the appraisers, having erred in allowing a claim to which there was in the State a good defence, their award was not void, and the auditor was not authorv.ized to refuse payment so long as the award remained unreversed. Its validity could not be attacked collaterally. The Canal Commissioners could have appeal Claims for damages against the State, under the Act of 1870 (Chap 321), au-ed and had the error corrected. thorizing the Canal Appraisers to hear It was objected, that on two days when and determine them, are properly evidence upon the claim was taken, but brought if within a year from the date of the act. Evidence in such claims may be taken by a single appraiser under a general rule made by the appraisers. one of the appraisers was present, and that the award was made by the other two appraisers, the former dissenting. All three certified that they had made a This is an appeal from an order of the personal examination of the injured preGeneral Term, affirming an order grant-mises as required by law. (Laws, 1829, ing a peremptory mandamus directing chap. 368.) defendant to issue his warrant as audi- Held, That there is no law requiring tor for the payment of an award made by the evidence to be taken before all the the canal appraisers. It was claimed by appraisers, or a majority, but, on the auditor that the canal appraisers had the contrary, the act of 1870 provides no jurisdiction, as the claim was filed that the appraisers may make a genmore than twelve years after the injuries eral rule for the taking of evidence were done. It appeared that the claim when the witness shall not be examined was filed under chapter 321 of the laws orally before the board, and it must be preof 1870, and within the time specified sumed that the evidence was taken under therein. This act authorized the canal a general rule, authorizing it to be taken appraisers to hear and determine all by one appraiser. claims against the State, etc., and that all claims for damages, which had accrued more than one year prior to the passage of the act, should be filed within one year from the date thereof. The claim was for damages for injuries toj lands not taken or appropriated. Order affirmed. CRIMINAL LAW. SELLING INTOXICATING LIQUORS ON SUNDAY. N. Y. COURT OF APPEALS. Rau, pltff. in error v. The People, defdts. in error. Decided November 30, 1875. An intoxicating beer is included in the act prohibiting the "sale, etc., of intoxicating liquors or wines on Sunday." "Premeditated design," as contemplated Plaintiff in error was indicted and con The plaintiff in error was indicted for victed for mayhem in biting off the selling intoxicating liquors on Sunday, greater part of the left ear of one S. in violation of the excise law (Chap. 628, The statute under which he was indicted Laws of 1857, p. 413, as amended by (2 R. S. 664, Sec. 2) provides, that "every Chap. 549, Laws of 1873, p. 861.) Sect. 21 of the act as amended, provides, that person who, from premeditated design, "no inn, tavern or hotel keeper, or other evinced by laying in wait for the purpose, or in any other manner, or with person shall sell or give away intoxicaintent to kill or commit any felony, shall ting liquors or wines on Sunday." On cut or disable **** any limb or memthe trial plaintiff in error admitted that ber of another on purpose, upon convicon the day charged in the indictment, tion thereof shall be punished." There he sold lager beer by the glass as a beverwas no evidence upon the trial to establish age, having a license. Evidence was the fact that the prisoner lay in wait for given tending to show that lager beer the complainant, or evidence of any act was intoxicating. It was claimed by his counsel that the sale of lager beer on the alleged offence he had contemplated evincing that prior to the commission of Sunday was not prohibited, that because the language used in Sect. 5 of said act or intended to do the injury, but on the of 1857, is "strong or spirituous liquors, done upon the impulse of the moment, in contrary, the proof showed that it was wines, ale or beer," therefore that by the omission of words "ale or beer" in Sect. with no previous ill feeling, or apparent an affray that originated unexpectedly, 21, the legislature manifested an intenintention on the part of the prisoner or tion to omit them from the prohibition. The judge charged the jury, that if they tion as ensued. The judge charged the prosecutor to engage in any such altercafound lager beer to be intoxicating, they jury, that if they found from the evidence that the prisoner wilfully and intentionally Held, No error: that the prohibition seized the ear of the complainant, intendincluded all kinds of intoxicating liquors, ing to bite it off, and so bit it off, that that the language of the prohibition was not controlled by the subsequent provi- first meditated but an instant before he though this intention originated or was sion, as if so, it would permit the sale of seized the ear, they would be authorized all kinds of ale and beer on Sunday, to find that he bit off the ear from which was clearly not within the intent of the legislature. should convict the defendant. Judgment of General Term affirming conviction affirmed. Opinion by Earle, J MAYHEM. N. Y. COURT OF APPEALS. Godfrey, pltff. in error v. The People, dfts. iu error. Decided November 23, 1875. "premeditated" design within the meaning of the statute. Held, Error: that the words of the statute "in any other manner mean in any like or similar manner, and to constitute the offence it must be made to appear by proof, or by some act or by declaration on the part of the prisoner, aside from the crime itself, such as a laying in wait, that prior to the time of the doing the injury he had contemplated or intended it. The |