The State ex rel. vs. Baldwin. docket, unless the defendant substituted a bond for the attachment of the property, Baldwin was bound to hold it, not under the orders of the plaintiffs as in the case of an ordinary execution, but under the orders of the court, and have it forthcoming when demanded for execution. His failure to do this was a neglect of his official duty, whereby Rice acquired a right of action against him and the sureties on his official bond. The surrender of the attached property to Mitchell by direction of Wilson and Wolf, and the defendants, was of course a protection to Baldwin against them. Rice is entitled to such damages as will indemnify him for Baldwin's neglect of official duty. Whether Rice is entitled to recover nominal damages only, or the amount of his debt, if the value of the attached property was enough to pay the debt, or an amount equal to what his pro rata share would have been had there been no agreement to dismiss, and the property had been held for execution, need not now be decided. It is sufficient in overruling the demurrer, to say that Rice has a right of action. Demurrer to the 9th and 10th paragraphs of answer sustained. NOTE.-The lien of a creditor filing under an original attachment proceeding against real estate which was commenced prior to the execution of a mortgage on such real estate by the attachment-defendant, is prior and paramount to the lien acquired by the mortgagee, although the date of the filing of such creditor's claim is subsequent to the execution of the mortgage. Fee vs. Moore, 74 Indiana, 319. The right of creditors to file claims under an original attachment against a debtor, under the Indiana statute, terminates with the final judgment and order of sale of the attached property, the words "final adjustment,” as used in such statute, meaning the judgment directing a recovery and ordering a sale of the property seized under the writ of attachment. Cooper vs. Metzger, 74 Indiana, 545.-[REPORTER. Helliwell vs. Grand Trunk Ry. CHARLES J. HELLIWELL et al. vs. THE GRAND TRUNK RAILWAY OF CANADA. CIRCUIT COURT-EASTERN DISTRICT OF WISCONSIN-FEBRUARY, 1881. 1. BILLS OF LADING-CONTRACTS.-H.& Co. shipped flour from Milwaukee to London under a contract which required the defendant to transport the flour by boat to Ludington, thence by rail to Portland and from there by steamer to London. In an action to recover damages for delay of the flour at Portland, the plaintiffs claimed that the oral contract was that the flour should be shipped from Portland in the steamship "Argosy,” but the bills of lading read, "upon the vessel called the Argosy (or other vessel of equal class for marine insurance.)" Held, that the bills of lading constituted the contract, and that the defendant had a right to ship on any vessel of equal class with the "Argosy" for marine insurance. 2. CONDITION EXEMPTING CARRIER FROM LIABILITY FOR DELAYS.-The bills of lading contained a condition that the defendant should not be liable for delays, in transporting the flour, occasioned by over-pressure of freight: Held, that the insertion of this condition in the contract gave no greater exemption to the carrier than it was entitled to by law. 3. OBLIGATION TO DELIVER WITHIN REASONABLE TIME.-In this transaction the obligations assumed by the defendant were the usual obligations of a common carrier, among which was that of transporting the flour to the place of consignment with all convenient dispatch, with such suitable and sufficient means as he is required to provide for his business. 4. OVER ACCUMULATION OF BUSINESS-RESPONSIBILITY FOR DELAY OF TRANSPORTATION.-If at the time of making the contract for shipment, the carrier had no doubt, and if the condition of business on its lines gave it no ground for doubting that suitable means would be at its command within the usual and ordinary time for conveying the flour from Portland to London, and if all reasonable efforts were seasonably employed to obtain such means, and the delay was solely occasioned by an extraordinary and unusual influx of freight upon its lines, arising subsequently to the making of the contract, the carrier would not be responsible for the delay. 5. LIABILITY OF CARRIER FOR DELAY.-But if at the time the contract Helliwell vs. Grand Trunk Ry. of shipment was made, there was already an accumulation of business on the carrier's lines, which incapacitated it, or might reasonably be expected to incapacitate it for transporting the flour within a reasonable time, and this was then known to the carrier, or might have been known by proper effort on its part, or if there were then reasonable grounds for belief on the part of the carrier that such was the state of the case at the time, then the carrier would be liable for the delay occasioned by such accumulation of business. 6. DUTY OF CARRIER TO INFORM SHIPPER.-In such case it is the duty of the carrier to inform the shipper of the condition of business on its lines, and if it fails to do this and takes the freight in face of threatened inability to transport it with requisite dispatch, it will be held liable for the delay. Van Dyke & Van Dyke, for plaintiffs. G. W. Hazleton, for defendant. Dyer, J., charged the jury as follows: This is an action brought by the plaintiffs, who compose a firm doing business in Milwaukee against the defendant company, to recover damages for the alleged failure of the defendant to transport certain quantities of flour which it undertook to carry from Milwaukee to London, England, within such time as it is claimed the same should have been transported and delivered to the consignee. From admissions contained in the answer, and from a stipulation put into the case by counsel for the respective parties, it appears that there is no controversy as to certain facts, viz: That 7,558 bags of flour, of the weight of 140 pounds each, were delivered to the defendant for transportation; that the price to be paid for such transportation was 56 cents, gold, per hundred pounds; that the flour was to be transported by the Northern Transit Line from Milwaukee to Ludington, thence by the Flint and Pere Marquette Railway and the defendant's line of road to Portland; and thence by steamship to London. Helliwell vs. Grand Trunk Ry. It is stipulated that a certain tabular statement, which has been exhibited to you, correctly states the dates of actual delivery of the several shipments of flour to the Northern Transit Line at Milwaukee; the dates of departure from Milwaukee of the several steamers of that line laden with the flour; the names of such steamers; the quantity of flour by them, respectively, carried; the dates of arrival of the different shipments at Portland and of the delivery of the same on board steamships bound for London; the names of such steamships and the dates of their departure from Portland and arrival at London. And it is expressly stipulated that the Argosy left Portland March 27th, 1880, and arrived in London April 7; that the steamship Bothel left Portland April 2, and arrived in London April 22; and that the Argosy and Bothel and the steamships Herworth and Woodthorn, which two last named vessels carried the flour, were all employed by the defendant in the business of transportation, and were all vessels of equal class for marine insurance. All these are uncontroverted facts in the case. It appears that the flour was all delivered here in Milwaukee to the Transit Line at various dates between February 26th, inclusive, and March 19th, inclusive, the largest proportion being delivered on February 26th and March 2nd. It was shipped on various days between February 26th and March 19th, both inclusive, and arrived in Portland at different dates between March 13th, inclusive, and March 30th, inclusive; the most of it so arriving on and prior to March 19th. It was all carried to London on the vessels Woodthorn and Herworth. That part carried on the Woodthorn was delivered to her April 17th, 18th and 19th, and she sailed on the 19th, and arrived in London May 15th. That part of the flour carried on the Herworth was delivered to her April 27th and 28th, and she sailed on the 29th, and arrived in London May 15th, on the same day that the Woodthorn arrived. Helliwell vs. Grand Trunk Ry. Now, the first question which arises is: What was the contract under which the defendant undertook the transportation of this flour, and what were the rights, duties and obligations of the parties under such contract as they in fact made? The plaintiffs have contended that the flour was received by the defendant and shipped under a verbal contract alleged to have been made on the 25th, 26th and 28th days of February, 1880, by the witness Cole in their behalf with the witness Young acting in behalf of the defendant; and that this contract was, that the flour should be carried to Portland by the route and on the lines named, and should be shipped thence to London by the steamship Argosy. It has been claimed that by this alleged agreement, the defendant undertook absolutely that the flour should be carried on that vessel and no other. This claim of course wholly ignores the bills of lading in evidence which confessedly the plaintiffs subsequently received from the defendant's agent. Upon looking into the bills of lading we find that they provide that the flour shall be shipped at Portland "upon the vessel called the Argosy (or other vessel of equal class for marine insurance.)" And herein we see that the bills of lading differ from the alleged verbal contract in that they by their terms give the defendant the right to ship the flour on the Argosy or on any other vessel of equal class for insurance. It has been contended by the plaintiffs that with reference to the vessel on which the flour was to be shipped from Portland, the alleged verbal contract must prevail as against this provision in the bills of lading, while on the part of the defendant it has been claimed that the bills of lading constituted the contract on the subject. Upon the undisputed evidence, I am of the opinion, and must instruct you, that in all respects wherein the bills of lading did not limit the defendant's liability as a common carrier they constituted the contract between the parties; and therefore, so far as this question of |