to read the present act of Congress, first enacted in part in 1792, repeated in 1795, enlarged in 1807, and now embodied in section 5297 of the Revised Statutes, as follows:

"In case of an insurrection in any State, against the government thereof, it shall be lawful for the President, on application of the legislature of such State, or of the executive, when the legislature cannot be convened, to call forth such number of the militia of any other State or States, which may be applied for, as he deems sufficient to suppress such insurrection; or, on like application, to employ, for the same purposes, such part of the land or naval forces of the United States as he deems necessary."

It shall be lawful, says the act. Was it lawful before? If so, the enactment was senseless. The act assumes that it is the province of Congress to provide for the execution of the guarantees promised in the fourth section of the fourth article, and that Congress can control the President in the employment of the army. The proviso inserted by the House, in 1877, was but a partial repeal of this statute. But, inasmuch as, in strange forgetfulness of the past, the posi⚫tion of the Senate has been defended, upon the reasons stated by senators, and party conventions, with the party press, have repeated the argument, if argument it may be called, it may serve a useful purpose to go more fully into the question.

If there be any political doctrine, which more than another is the corner-stone of our system of State and Federal government, it is the complete independence of each in regard to the other. Congress cannot even tax the salary of a State officer, for the reason that it cannot interfere with the free movement of State machinery. Each government moves in its own independent orbit. There is one instance in which the Federal government is recruited from the State governments, and that is in the choice of Federal senators by State legislatures. And there is another instance in which the Federal government is authorized to interfere directly with the State governments, and that is under the fourth section of the fourth article. But the governor of a State is as much independent of the President as the President is independent of the governor. When Washington, as first President, visited Massachusetts, Governor Hancock made it a point of etiquette that the President should call on him, as having the precedence in his own State, a point which he afterward yielded; but the incident shows that, in the days of the Fathers, the governor of a State, on his own ground, was considered rather as the equal than the subordinate of the President, who was after all "primus inter parés."

The one instance, and the only one permitted by the Constitution, of direct interference with State goveruments or State officers, is that which I have just mentioned. These are the words of the Constitution: "The United States shall guaranty to every State in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature or of the executive (when the legislature cannot be convened) against domestic violence." This is the clause that is supposed to give the President the exclusive authority to decide between two claimants which of them is the rightful or actual officer of a State. Yet it gives the President no power whatever. It does not even mention him. It is not in that part of the Constitution which treats of the executive department. "The United States "- the nation-"shall guaranty" and "shall protect." From

which department of the government the guaranty and the protection are to come depends upon other considerations. The Constitution itself has not left the matter in doubt. Whenever a particular department is clothed with an authority or charged with a duty, the language is explicit, the department is mentioned, and the authority or duty is specified. When no particular department is mentioned, the authority and the duty are devolved upon the legislature, under that clause which gives Congress power to pass all laws necessary or proper for carrying into effect any of the powers vested in the government of the United States.

This construction accords with the generally received theory of our government. Nobody has ever yet supposed, or if he has foolishly supposed, has been rash enough to say that the President has exclusive authority, or any authority, to decide whether a State has a republican form of government, yet the language of the clause gives as much authority to guarantee a particular form of government as it does to protect against domestic violence.

In reality, no authority is anywhere given to any Federal officer to decide upon the title of any State officer except as an incident and necessary preliminary to the exercise of some other power. The incident in such case depends upon the principal, and the validity or invalidity of the former is determined by the latter. When a body claiming to be the legislature of a State, or a person claiming to be governor, applies, under the 4th section of the 4th article, for protection of the State against domestic violence, the Federal authority, to which the application is made, must of necessity decide or assume that such body is the legislature, or such person the governor. This necessity affects all Federal officers, from the highest to the lowest. If a general of the army is directed to aid the mayor of a city with his command, the general must find out who is mayor. Any citizen may be placed under a like necessity, of deciding whether one who assumes to hold an official position does really hold it; but that is not because it is the citizen's province to decide questions of title to office, but because he must assume a particular person to be the officer, in fact or law, before he obeys him. This assumption he adopts, of course at his peril. So that the question, after all, is this, which department of the government decides and acts for the United States in guaranteeing republican governments to the States, or in protecting them against violence from abroad or at home? To this question there can be, it seems to me, but one answer; it is the legislative department, the Congress.

This is the natural construction of the language of the Constitution. The United States are to guarantee and the United States are to protect. The executive department is not charged with the duty; neither is the judicial department. The legislative department, however, has authority to pass all laws necessary for carrying into effect a power vested in the government, and not specially entrusted to another department.

Not only does the text of the Constitution lead us naturally to this conclusion, but every recognized auxiliary of interpretation helps us to the same result, such as the theory of our government, the history of the Constitution, the acts of Congress in pursuance of it, and the decisions of the courts.

Neither the framers of the Constitution nor the people who accepted it could have dreamed of giving such a power to the President. Authorizing him, contrary to the will of Congress, to execute the 4th sec

tion of the 4th article, would have been making him a virtual dictator. If, for example, he were to affirm that the Constitution of Massachusetts is not republican, and should undertake, for that reason, to displace the existing legislature, or send a commission to Boston to organize a new one, would there be no remedy but forcible resistance?

The history of the clause is significant. The general plan of the Constitution was first brought forward in the Convention in a series of resolutions proposed by Mr. Randolph, on behalf of the delegates from Virginia. Those resolutions declared that the national legislature "ought to be empowered to enjoy the legislative rights vested in the Congress by the confederation, and moreover, to legislate in all cases to which the separate States are incompetent," and also, "that a republican government and the territory of each State, except in the instance of a voluntary junction of government and territory, ought to be guaranteed by the United States to each State." Mr. Charles Pinckney's plan enumerated among the powers to be granted to Congress, that "to subdue a rebellion in any State on application of its legislature," and proposed the following as a separate article: "On the application of the legislature of a State, the United States shall protect it against domestic violence." When the resolution in Mr. Randolph's plan came to be considered in Committee of the Whole, it was changed to the following, and so reported to the committee: "Resolved, That a republican constitution, and its existing laws, ought to be guaranteed to each State by the United States." This was changed in the convention to the following: "Resolved, That a republican form of government shall be guaranteed to each State, and that each State shall be protected against foreign and domestic violence," and thus referred to the committee of detail to prepare and report a Constitution. This committee made a report, in which among the powers of Congress, was that "to subdue a rebellion in any State, on the application of its legislature," and there was a separate article as follows: "The United States shall guarantee to each State a republican form of government, and shall protect each State against foreign invasions, and on application of its legislature, against domestic violence." This was afterward changed by striking out the word "foreign," and inserting the words "or executive," after legislature, and so sent to the committee of revision, by which it was reported as it now stands in the Constitution, except that the words "where the legislature cannot be convened," were afterward inserted by the convention. Mr. Randolph, however, though the general plan, first submitted by him, was the basis of the Constitution as adopted, refused to sign it, for several reasons, one of which was "the authority of the General Legislature to interpose on the application of the executives of the States." It is clear from this history that the convention did not mean to commit the execution of the guaranty to any other authority than the United States in Congress assembled.

The legislative history of the United States follows and confirms this theory. The first act respecting insurrection in a State was passed in 1792, and that provided in the first section, that whenever the United States should be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it should be lawful for the President to call forth "the militia," and in the second section, that he might call out the militia of a State

to suppress combinations therein too powerful to be suppressed by the ordinary course of judicial proceedings, provided the exigency was notified to the President, by an associate justice or the district judge, and furthermore in case the militia of such State refused, or were insufficient, he might resort to the militia of other States, "if the legislature of the United States be not in session." This act was limited to two years and the end of the session next thereafter.

The second act was passed in 1795 authorizing the employment of the militia, and a third act passed in 1770 authorized the employment of the Army and Navy. These different provisions now stand in the Revised Statutes in section 5297, already quoted.

The enactment assumes, as I have pointed out, that the whole subject of protecting a State against domestic violence, is within the competence of Congress, which alone can give authority to interfere, and can prescribe to that end the use of such means as it pleases. Thus the first act made it a condition, in a certain contingency, that there should be a precedent notification from a judge of the United States, and in another contingency gave authority to act only in the recess of Congress, and was moreover limited in its duration to a short period. If the Congress of 1792 was competent to withhold the power from President Washington, after the experience of two years, surely the Congress of 1877 is competent to withhold it from any President, after the experience of the last eight years. The present act of Congress limits the authority of the President to the militia of States, other than that where the insurrection takes place, upon the idea no doubt that the militia of that State are to be used by its own lawful authorities, and the act also requires the President to issue his proclamation to the insurgents, at the same time that he uses the forces placed under his control.

The judicial history of the United States leads to the same conclusion. In the controversy growing out of the domestic troubles of Rhode Island, a case (Luther v. Borden) was brought to the Supreme Court of the United States. The right of Federal interference in those troubles was thus brought in question, and the court pronounced au opinion, of which the following are portions:

"The fourth section of the fourth article of the Constitution of the United States provides that the United States shall guarantee to any State in this Union a republican form of government, and shall protect each of them against invasion, and on the application of the legislature or of the executive (when the legislature cannot be convened) against domestic violence.

Under this article of the Constitution, it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority, and its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal." **

*

"So, too, as relates to the clause in the above-mentioned article of the Constitution, providing for cases of domestic violence. It rested with Congress, too, to determine upon the means proper to be adopted to fulfill this guarantee. They might, if they had deemed it most advisable to do so, have placed in the power of a court to decide when the contingency had happened which required the Federal government to in

terfere. But Congress thought otherwise, and no doubt wisely; and by the act of February 28, 1795, provided that in case of an insurrection in any State against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such State or of the executive (when the legislature cannot be convened), to call forth such number of the militia of any other State or States, as may be applied for, as he may judge sufficient to suppress such insurrection.'

"By this act the power of deciding whether the exigency had arisen upon which the government of the United States is bound to interfere, is given to the President. He is to act upon the application of the legislature or of the executive, and consequently he must determine what body of men constitute the legislature, and who is the governor, before he can act. The fact that both parties claim the right to the government cannot alter the case, for both cannot be entitled to it. If there is an armed conflict, like the one of which we are speaking, it is a case of domestic violence, and one of the parties must be in insurrection against the lawful government. And the President must, of necessity, decide which is the government and which party is unlawfully arrayed against it, before he can perform the duty imposed upon him by the act of Congress."

And lastly the same doctrine is now conceded by the present republican executive department. In a speech delivered before an Ohio audience, within a month, by Mr. Sherman, the Secretary of the Treasury, he takes occasion to say that "The President is not made the judge of who is elected governor of a State; an attempt to exercise such power would be a plain act of usurpation." And in an article put forth with great parade under the title of the "President's Southern Policy," and published in the present number of the International Review, if not in the name, yet with the evident sanction of President Hayes, it is declared that "it is to Congress and not to the President of the United States, that each and all of the obligations defined and declared by the fourth section of article four of the Constitution are in the first instance addressed, the conduct of the executive being controlled at every step by the necessity for Federal legislation, with respect to the exigencies to be met, the means to be employed, the method of procedure, and therefore confined and limited solely to the execution of the laws pertaining to the subject. In other words: here, as elsewhere, and under all circumstances, the duty of the President of the United States is simply to take care that the laws are faithfully executed.' His only sanction for participating at all, in the discharge of these constitutional obligations, being found in the fact that Congress has enacted in advance the requisite legislation in furtherance of their faithful fulfillment, the act of 1795, with such enlargement as its provisions have since received, being the warrant to-day for whatever of executive action the President may direct for this purpose.'

We have thus all the great departments of the Federal government, the legislative, judicial and executive, agreeing, that the execution of the guarantees mentioned in the fourth section of the fourth article is, by the Constitution, devolved upon Congress.

I have dwelt thus long upon the question of the President's right to determine who are and who are not the rightful or actual officers of a State; not because there is any inherent difficulty in the question, but because the answer really disposes of the point at issue between the Senate and the House.

Before I pass from the subject, however, I must call attention to an observation of Mr. Sherman in his Ohio speech that appears to me inconsistent with his

declaration just quoted. He had hardly finished declaring that an attempt of the President to exercise the power of judging who is elected governor of a State would be a plain act of usurpation, when he took pains to say, that if he had been President instead of Grant, he would have “recognized" Packard as governor of Louisiana, "and sustained him with the full power of the general government." What is the difference in practice between "recognize" and "decide?" Who decided in favor of Packard as governor, that Grant or Sherman should recognize him? Was Packard in possession of the office any more than Nichols? The power to recognize is the power to decide; and the Supreme Court appears to be of that opinion, according to the passage which has just been quoted. Give any person the right of recognizing whom he will to be governor and of following up the recognition with the army, and he need not care who may undertake the decision. Whenever there are two claimants of the same office, each of course will seek to fortify his claim by evidence of title and by the decision of some authority in his favor; the power to determine which has the better decision is in no degree different from the power to decide, for all practical purposes, where lies the title. Does not every schoolboy, who has intelligence enough to read the shameful history of the last eight years' misrule in South Carolina, Florida and Louisiana, know full well that, during all these years, Grant's heavy sword has been the only effective title to office in those trampled States?

If there be then really no authority but an act of Congress for the President's interference with the questions, which is the lawful government, and who are the lawful governors of a State, can there be any doubt, that the intervention of the army in these questions, against the will of Congress, would be a plain usurpation? If the acts of 1795 and 1807, now re-enacted in the Revised Statutes, were repealed, the power to protect the lawful governors or government would be withdrawn from the President and remitted to Congress. In that case it could not possibly be constitutional for the President to support with the army a person whom Congress had declared not to be governor. It could not be lawful for him to use the national forces in aid of a usurper. The President could not oppose, with an armed body, the execution of a decision of Congress, any more than he could order out the troops to resist the execution of a judgment of the Supreme Court. The Constitution is not a patchwork of contradictions. Its different parts were not left thus to counteract each other.

It cannot be necessary to pursue the argument further, in order to show that the claim of the Senate, in its present controversy with the House, is untenable. The act of 1795 was probably never intended to apply to the case of a disputed State gov ernment, or to make the President arbiter between contending parties, each claiming to have elected its candidates to established offices; but inasmuch as it has been so interpreted, it is time for Congress to interpose, and take to itself a power so liable to abuse, and so grievously abused.

Although the discussion of the question between the Senate and the House does not necessarily involve a consideration of the general relations of the President to the army, yet it leads naturally to it. And, with your leave, I will discuss that subject in another letter. NEW YORK, Sept. 4, 1877.

DAVID DUDLEY FIELD.

NOTES OF RECENT DECISIONS. Admiralty practice: proceedings in rem.-Proceedings in rem in admiralty cannot be instituted by a party against an undivided interest of an owner in a vessel. U. S. Dist. Ct., N. D. Ohio. Manhattan Fire Ins. Co. v. Schooner Breed (Chic. Leg. News).

Caveat emptor: sale of letters patent.-Where the plaintiff merely sells by a written assignment all his right, title and interest in certain letters patent to defendant, that is no assertion that he has a good title, and is no defense in an action by plaintiff against defendant for the balance of the purchase-money. But an offer by defendant to prove that the plaintiff at the time of the sale represented himself to be the owner of one-half the patent right which he then sold, whereas in fact he had previously sold his entire interest, should be admitted. Sup. Ct., Pennsylvania, May 7, 1877. Krumbaar v. Birch.

Constitutional law: special legislation.-The act of the legislature of 1875 authorizing the institution of suits in the State courts, by municipal corporations with a population of 35,000 or more, without giving bond for costs, is repugnant to article 11, section 8, of the constitution, which declares that the legislature shall have "no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land," and is, therefore, void. Sup. Ct., Tennessee, May 12, 1877. City of Memphis v. Fisher (Tenn. L. Rep.).

Dedication: to city for street: non-user: reversion.— When a clause in a deed dedicating land to the city for the purposes of a street, provided that if the street should be abandoned or vacated, the premises should revert to the present owners or their assigns, held, that on a vacation of such street by the city, the premises reverted to those deriving title from the original grantor. Held, that the fee in the street, retained by such provision in the deed, could not be divested and transferred to adjacent owners by direct legislative action. Sup. Ct., Illinois, June 22, 1877. Helm v. Webster (Chic. Leg. News).

Statute of frauds: promise to answer for the debt of another: when.-An agreement made by the vendee of lands to pay part of the purchase-money to a creditor of the vendor is not within the statute of frauds. This case overrules the case of Campbell v. Finley, 3 Humph. 330. Sup. Ct., Tennessee, June 2, 1876. Miller v. Stovall (Tenn. Leg. Rep.).

Statute of limitations: revival of debt.-A promise to pay "all I owe you" is not sufficient to revive a debt barred the statute of limitations, in that it does

had no knowledge of any agreement to indemnify. Sup. Ct., Pennsylvania, Feb. 5, 1877. Clark v. Adams. Suretyship: forging of prior surety's name will not discharge surety.-The forgery of the name of a prior surety will not discharge a subsequent surety, even though the latter signs his name because of the name of the former being already attached. As some one must be a loser by the deceit, it is more reasonable that he who puts confidence in the deceiver should be a loser rather than a stranger, or a payee knowing nothing of the deceit practiced among the co-makers of a note. Seeley v. The People, 27 Ill. 173, overruled. Sup. Ct., Illinois, June 22, 1877. Stoner v. Milliken.

Taxation: tax paid by reason of threats of litigation, etc., not recoverable back.-A tax paid by reason of threats of litigation, or the apprehension of the levy of distress warrants, cannot on this ground be recovered, although the levy and tax was illegal, there being no fraud or mistake of facts, but only mistake as to legal liability. A State or city may and ought to refund a tax so paid. Sup. Ct., Tennessee, May 5, 1877. Lea v. City of Memphis (Tenn. Leg. Rep.).

Will: construction of: remote bequests.-By a clause of a will testator bequeathed to Francis A. Hall and Henry Austin Whitney $5,000 in trust, and that "the whole shall form a fund which shall properly be invested, and to accumulate until my said grandchildren last mentioned respectively attain the age of thirtyfive years, when a proportionate part of said fund and accumulation (dividing the number of said grandchildren then living who shall not have received their share) is to be paid over to each of them; and in case of the death of the last beneficiary, before attaining the age of thirty-five years, I direct that the remainder of said fund and accumulation be considered as part of the residue of my estate, and be subject to the disposition of the same heretofore made." Held, that the bequest of $5,000 to Francis A. Hall and Henry Austin Whitney to accumulate for the benefit of the testator's grandchildren was void for remoteness, and the bequest should go to the residuary legatee. Sup. Jud. Ct., Massachusetts, Sept. 7, 1877. Hall v. Hall.

PRIVILEGED COMMUNICATIONS-WORDS SPOKEN FROM THE PULPIT.

IRISH COMMON PLEAS, MAY 8, 1877.

MAGRATH V. FINN.

THE summons and complaint contained three counts, That the defendant falsely and maliciously spoke of the plaintiff the words following-that is to say (setting out the words in the Irish language), which said words, being translated into the English language, have the meaning and effect following, and were so understood by the persons to whom they were so spoken and published, that is to say: 'Let no man, woman, or child, keep his (meaning the plaintiff's) company, nor talk to him (meaning the plaintiff), and if he (meaning plaintiff) comes into any town-land, tie a kettle to his (meaning the plaintiff's) tail, as the people used to do of old; the defendant meaning by the said words that the plaintiff had committed an indictable offense of so grave and disgraceful a description as to deserve that the public should avoid and reject the company

and conversation of the plaintiff." The second count complained of the speaking and publishing of the words following: "Can any one of you tell me where he (meaning the plaintiff) gets the money to spend? Is his mother foolish enough to give it to him, or does he (meaning the plaintiff) steal cows and horses?" The defendant meaning by the said words that the plaintiff had frequently feloniously stolen, and was in the habit of feloniously stealing, the cows and horses. The third count complained of the speaking and publishing of the words following: "I'll go to his (meaning the plaintiff's) mother to make him (meaning the plaintiff) leave the country, and if not, I'll go to the landlord to make him (meaning the plaintiff) do so." The defendant meaning by the said words that the plaintiff had committed an indictable offense.

In answer the defendant pleaded that he was at the time of uttering the words the Roman Catholic parish priest of the parish where the words were spoken; that at the time plaintiff was a parishioner; that he believed that plaintiff had been guilty of improper conduct; that the conduct was a matter of notoriety, and caused in the parish great annoyance; that at the time of speaking the words he was performing his duties as clergyman in the presence of his assembled parishioners, and that he uttered the words in good faith, believing them to be true, and for the sole purpose of rebuking sin, and preventing a repetition of the acts complained of. To this plea plaintiff demurred.

Peter O'Brien (with him Murphy, Q. C.), in support of the demurrer.

Anderson (with him Heron, Q. C.) contra, cited Buckley v. Keernan, 7 I. C. L. R. 75; Cooke v. Wilde, 5 E. & B. 341; Spill v. Maule, L. R., 4 Ex. 232; Harrison v. Bushe, 5 E. & B. 344; Whitley v. Adams, 15 C. B. (N. S.) 392; Davies v. Snead, L. R., 5 Q. B. 608; Somerville v. Hawkins, 10 C. B. 583; Starkie on Slander (4th ed.), 526, 527.

MORRIS, C. J. This action is brought against the defendant, a parish priest, complaining of his use of expressious toward the plaintiff of a slanderous character, and the defense is one of privileged occasion, based on the fact of defendant being a parish priest, and of the duty arising from that office of rebuking and admonishing sinners by name. The argument of the junior counsel in support of the plea, rested the privilege on the relative position of the plaintiff and defendant, and, as flowing from it, a duty to admonish the plaintiff, which, by the demurrer, it is admitted defendant did bona fide and believing in the truth of the statement. The case of Somerville v. Hawkins, 10 C. B. 583, was cited, where a master spoke of a servant in presence of other servants, in words which under other circumstances would have been actionable, but which were there held privileged. But Mr. Heron, for the defendant, claimed a privilege as arising to the defendant as a clergyman, virtute officii, of rebuking sin, and, by way of illustration, naming a particular person. There is no authority for such a proposition, and indeed Mr. Heron, when asked was the rule to be confined to Roman Catholic clergymen, and, if extended to clergymen of other denominatious, where he would draw the line, answered that he would confine the rule to clergymen having the cure of souls, whom he defined as Roman Catholic priests and clergymen of the late Established Church. Such a distinction is merely arbitrary, and if the privilege existed

at all, it should be extended to all clergymen of every denomination who preached sermons, or indeed to laymen, many of whom also preach sermons. We cannot adopt the analogy of the privilege of the members of the House of Commons, and of barristers, which has been also pressed upon us. Such a privilege is founded upon other and different principles, and we can find no public benefit in extending this class of cases to persons preaching a sermon, and naming or plainly pointing at particular persons. The moral duty of the defendant has been much pressed upon us; but it is admitted that the defendant, in denouncing the plaintiff by name, was violating the provisions of one of the decrees of his own church. It is, therefore, a solecism in reasoning to say that there was a duty incumbent on the defendant, when in the very speaking of the words he was violating his duty. Apart, however, from any such question, we are of opinion that the plea of privilege cannot be extended to the occasion of delivering or preaching a sermon, and on this ground we must allow the demurrer.

LAWSON, J. I never thought this case arguable, and feel some surprise that in the year 1877, for the first time, such a privilege should be claimed, which would not be tolerated in these countries even at a period when ecclesiastics were hardly subject to the laws of the land. I am of opinion that neither from pulpit nor altar can slander be uttered, and if it is, the person who does so must justify its truth, or be prepared to take the consequences.

KEOGH, J. I never entertained a doubt about this case from the moment it was mentioned. Demurrer allowed.

[See on this subject Fitzgerald v. Robinson, 112 Mass. 371, and cases cited. -ED. A. L. J.]

RECENT ENGLISH DECISIONS.

BROKAGE.

"in conse

Earning of commission: proximate cause: quence of."— A employed B to sell a ship, and agreed that if a sale was effected to any person "led to make such offer in consequence of " B's mention or publication of it, B should be paid a commission. Held, that B was entitled to his commission, although neither the purchaser nor his agent had seen B's publication, as he had been led to make an offer by hearing of it. Common Pleas Division, June 11, 1877. Bayley v. Chadwick, 36 L. T. Rep. (N. S.) 740.

and

CONTRACT.

and

ог

Mercantile contract: construction: "shipped during March April:" evidence of mercantile usage.-The appellants, by contracts dated London, March 17, 1874, bought of the respondents "about 600 tons of Madras rice, to be shipped during the months of March April, per Rajah of Cochin." About four tons only of the rice were shipped in March, the remainder having been shipped in February. The appellants refused to accept it, as not complying with the contract. Held (reversing the judgment of the court below), that the words of the contract being clear, and there being no evidence of any mercantile usage in such case, the appellants were justified in not accepting the rice, it not being a March or April shipment. Alexander v. Vandersee, L. R., 7 C. P. 530, explained and distinguished. House of Lords, June 8, 1877. Bowes v. Shand, 36 L. T. Rep. (N. S.) 857.