It seems to me, therefore, that the plaintiff was necessarily put to his election. He might hold either Rogers and Scarf, or Rogers and Beech, liable; he could not hold Rogers, Scarf and Beech all liable together. That makes it unnecessary for me to say much upon the question of novation, except that if your lordships should differ from the Court of Appeal in this case, you will have the satisfaction of feeling that you do so on grounds which do not seem to have been clearly or fully presented, if they were presented at all, to the Court of Appeal. In the court of first instance the case was treated really as one of what is called "novation," which, as I understand it, means this-the term being derived from the civil law-that there being a contract in existence, some new contract is substituted for it, either between the same parties (for that might be) or between different parties; the consideration mutually being the discharge of the old contract. A common instance of it in partnership cases is where, upon the dissolution of a partnership the persons who are going to continue in business agree and undertake, as between themselves and the retiring partner, that they will assume and discharge the whole liabilities of the business, usually taking over, the assets; and if in that case they give notice of that arrangement to a creditor, and ask for his accession to it, there becomes a contract between the creditor who accedes and the new firm, to the effect that he will accept their liability instead of the old liability, and on the other hand that they promise to pay him for that consideration.

Now if this case had rested upon that ground (on which it appears to have been put in the court of first instance), I could not myself have agreed in the decision at which the court of first instance arrived; because there is really only one act done upon which a serious argument, as it seems to me, could be found in favor of novation, if the circumstances had required that the case should be put upon that ground. I mean the giving of the check, which I have already mentioned, on the 22d of July 1878, by the new firm. Down to that time it was, as it seems to me, merely in the natural and ordinary course of things, that when the notice of dissolution referred to Mr. Rogers (who was continuing to carry on the business of that firm with Beech), as the person who would receive and pay all debts owing to or by the old firm, either Mr. Rogers or his firm should act in the liquidation of the affairs and debts of the old concern; and the mere corresponding with them,

VOL. XXXI.-47

the mere sending in the accounts to them, would not, as it seems to me, make Beech liable unless he did something to make himself liable beyond carrying on that kind of correspondence. Then, upon the other hand, is there sufficient evidence of the intention which would be necessary on the part of the plaintiff to relinquish these original debtors? The fact of this check being given, which as I have said is the only thing which can be relied upon as showing that Beech was willing to make himself liable, is perfectly consistent with the plaintiff's not relinquishing the original debtors. If it results in payment he is perfectly entitled to take it. If it does not result in payment it will not fulfil its original object. It did not result in payment and the action followed. The proof in bankruptcy afterwards being in invitas, though it might be some evidence of the intention of the plaintiff to get what he could out of Rogers and Beech, yet certainly would be no evidence of any accession on the part of Beech to the liability, which was not upon him at all.

A

I therefore should not have differed from the opinion of the Court of Appeal if I had thought (as the Court of Appeal seems to have treated it) that the case depended upon what is called the doctrine of novation. I am inclined to say that the facts which have taken place were susceptible of an interpretation consistent with an intention on the part of the plaintiff to retain his original debtors, at all events at the time of action brought, and that on the other hand there was nothing to make Beech a debtor if he had not been so before. But as Beech was really a debtor, the whole doctrine of novation disappears from the case, and the question resolves itself into that which I originally stated, namely, whether there was an intention on the part of the plaintiff to hold the three persons liable or only two, and if two, whether it is possible, after choosing to hold those who actually gave the order and received the goods liable, and proceeding against them as debtors in such a way as to amount to a distinct election to take their liability, to retract that and to fall back upon the liability which, on a different principle, might have been asserted against the other two, that is to say, against Scarf and Rogers, to the exclusion of Beech. I think that the plaintiff was bound by his election, and that after approbating the liability according to the facts, and taking as his debtors those who had actually given the order, he could not, when it suited his convenience, retract it, reprobate it, and go back upon

the liability, by estoppel, of the man who never gave the order

at all.

Then did the plaintiff do that which was, and ought to be held as, an election of liability. I think that he did, with full knowledge of all the facts, from the 25th of February. He not only carried on the correspondence to which I have referred-which might have been entirely consistent with his reserving his right to elect; he not only received the check-upon which I am disposed to make the observation that taking it would not have been a conclusive election-but he brought his action against Rogers and Beech; and not only did he bring his action, but when the action was stopped by the liquidation, he carried in his proof, swearing that they were justly and truly indebted to him for the goods as sold and delivered by him to them. Rogers and Beech were in point of fact the debtors, and he had the benefit of that, which really (without going into any technical distinctions), for this purpose appears to me to be a sufficient ground of judgment. I do not think it necessary to go into any of the cases which have been mentioned, because I think that the principle is perfectly distinct. The case, which was relied upon by the respondent, of Curtis v. Williamson, Law Rep., 10 Q. B. 57, simply held the mere act of making and filing in bankruptcy an affidavit of the kind which was made was not one as to which the party would have no locus penitentiæ under any circumstances where he had been desirous, when he had fully considered the matter, of withdrawing it before it was put upon file; and nothing was done, so far as appears, after it was put upon the file. There was nothing to bind him to his election except that inadvertent and (at the time when it was done) unintentional act of his agent; and the court were quite right in holding that that ought not to be regarded as an election by him.

I need not refer particularly to the facts of Bilborough v. Holmes, 5 Ch. D. 255, but a proof under circumstances similar to the present was held, upon the principle of election, to bind the party who made it. In Bottomley v. Nuttall, 5 C. B. (N. S.) 122; 28 L. J. (C. P.) 110, an acceptance had been given which was evidence of a successive obligation, and proof of it would by no means extinguish or destroy any right which the party might have upon the original debt and the original consideration.

There is, therefore, as frankly admitted at the bar, no direct

authority upon this point. Your lordships are obliged to determine it upon principle; and on principle I think your lordships ought to hold that the plaintiff was put to his election, that he made it when he brought the action and proved in the liquidation, and that he cannot now, consistently with the election which he has made, hold Scarf liable. I therefore move your lordships, that the order under appeal be reversed, which will have the effect of restoring the judgment of the court of first instance; and that the defendant (the appellant here) have his cost in the Court of Appeal and in this House.

Lords BLACKBURN, WATSON and BRAMWELL, also delivered concurring opinions.

land prior to this case; and, from such examination as we have been able to make, no case involving the point has ever been reported in this country. The reasons advanced, however, by the learned judges, whose opinions are reported [the opinions of Lords BLACKBURN, WATSON and BRAMWELL, who concurred with Lord SELBORNE, L.

C., are, on account of want of space, omitted]-are so clear and conclusive as to render the citation of authorities almost superfluous, and there would seem to be no reasonable doubt as to the correctness of their judgment.

Chicago.

MARSHALL D. EWELL.

RECENT AMERICAN DECISIONS.

Supreme Court of Iowa.

CARTON & CO. v. ILLINOIS CENTRAL RAILROAD CO.

An act of the state legislature, whose object and purpose is to control and regulate the shipment of freight to points in other states, is in violation of article 1, sect. 8, of the Constitution of the United States, as being legislation on interstate commerce, a subject which is in its nature national, and requiring the exclusive legislation of Congress.

An interstate contract of shipment, entered into by a common carrier, is an entire contract, and the laws of the state wherein it is made, so far as they attempt to regulate interstate commerce, do not enter into it as a part of the contract, being repugnant to the Federal Constitution [BECK, J., dissenting].

A contract is subject to the laws of the state wherein it is made and which are applicable thereto.

A state may regulate charges on shipments of goods, by statutes not in conflict with the Constitution of the United States as regulations of commerce, and in the absence of any legislation by Congress upon the subject, such laws cannot be regarded as an encroachment on the anthority of the general government.

Such regulations of commerce only as impose burdens and restrictions are forbidden to the state by the Constitution of the United States, but laws which aid in securing expeditious and cheap transportation, and which remove burdens, impediments and restrictions imposed on commerce by common carriers through unnecessary delays, and by their unreasonable and unjust exactions and discriminating charges, are not regulations of commerce within the contemplation of the Constitution of the United States.

APPEAL from Hardin Circuit Court.

This is an action to recover certain alleged excessive freight charges paid by the plaintiff to the defendant for transporting grain from Ackley, Iowa, to Chicago, Illinois. The cause was tried in the court below without a jury, and upon an agreement as