Page:Federal Reporter, 1st Series, Volume 5.djvu/689

 KELLY V. DBMING. 677 �the mutual mistake was discovered by the company the pol- icy was rightfuUy marked "cancelled." Under the finding of the jury and the other undisputed facts, I am of opinion that there was no binding contract of Insurance between the plain- tiff and the Lycoming Company; that the plaintif aoted in the beat of faith to the defendant company, and that there was no breach by him of the condition of the policy sued on in respect to other insurance. The motion for a new trial must therefore be overruled. �And now, to-wit, January 21, 1881, the motion for a new trial is denied; and it is ordered that judgment in favor of the plaintiff be entered upon the verdict. ���Kelly and others v. Deming and others. �(Circuit Court, E. D. Missouri. January 17, 1881.) �1. Attachment— Propbrty m Possbssioît op Caiieibr— Vbndor and Vendee. �Certain property, payable in cash on delivery, was attached by the vendee's creditors while still in the possession of the carrier. Hdd, that such creditors could acquire no right in the property, or to the possession thereof, as against the vendor, without, at least, payment of the priee and charges. — [Ed. �Trial without the Intervention of a Jury. �Chester Krum, for plaintiffs. �Stewart e Bakewell, for defendants. �Teeat, D. J. One Warriner, through false and fraudulent representations, caused plaintiffs to ship to him the property in question ; payable in cash on delivery. The property was shipped by rail, and, said Warriner having in the meantime absconded, was placed in the railway's storehouse, subject to order, etc. Thereupon creditors of Warriner caused the same to be seized by attachment, and the plaintiffs caused the same to be replevied out of the possession of said attach- ing creditors and the officers who at their instance had seized ����