Shaw instructed the Jury, that a commission merchant having received goods to sell at a certain price, and made advances upon such goods, had a right to reimburse himself, by selling such goods at the fair market price, though below the limit, if the consignor, upon application, and after a reasonable time, refused to repay the advances.

The Jury found for the defendants, and the plaintiff moved for a new trial, on the ground that the instructions of the Judge were wrong. The full court decided in April last, that the rule laid down by the Chief Justice was correct, and they awarded judgment on the verdict.

At a very recent trial, in Boston, the question arose, whether the consignee of goods was limited to the invoiced prices, if nothing was said by the consignor. Judge Wilde said, this would depend altogether on custom among commission merchants; and that the party who set up the custom must prove it to be universal.

A most interesting case, involving a perversion of property on the part of the agents, and subjecting them, in the result, to heavy damages, was lately decided in the Supreme Judicial Court of Massachusetts, on an action of assumpsit, brought by Robert C. Hooper, of Boston, against Messrs. Casamajor, Nuiry, & Co., merchants in St. Jago de Cuba, in the West Indies, to recover damages for a breach of contract, by which the defendants had agreed to load the bark Lydia, chartered by the plaintiff, with sugar and coffee in Cuba, and despatch her for St. Petersburgh, in Russia. It appeared in evidence that the arrangement was made at Boston in March, 1837, with the late John S. Gibson, one of the defendants- after which Gibson sailed for Cuba. A letter addressed to John S. Gibson was put in evidence, and the part of the letter on which the parties contended for a different construction is given in italics. The defendants contending that it limited the sugar to nine reals, and that if they had purchased above this rate the plaintiff, if the adventure proved unprofitable, could have thrown it upon them, and the plaintiff thought it contained no such limitation, but left it discretionary; in which opinion we concur from the phraseology and character of the letter.

John S. Gibson, Esq.

of Messrs. Casamajor, Nuiry, & Co.

"BOSTON, March 3, 1837.

Dear Sir-I have been induced, from the favorable representations you have made to me of your market at St. Jago de Cuba and Trinidad, and from the confidence which I place in the good judgment of your highly esteemed house, to charter the fine Swedish bark Lydia, for the purpose of loading her at St. Jago, with a cargo of white sugar for St. Petersburg.

This vessel I presume will carry about 1400 boxes, and will sail from here in the course of a week. If prices of sugar should be more favorable for purchasing at Trinidad than at St. Jago, I trust you will (as you have informed me it will be quite as convenient to your house) send_the bark there to load, as the only expense I can incur thereby will be the port fees at Trinidad.

You are aware how depressed the sugar market is in Europe, and that a loss appears certain unless you can buy this cargo at not exceeding nine reals per aroba. I hope that your expectations of getting them at less, and of selling the exchange at a good premium, will be realized.

I would call your attention to the importance of selecting perfectly dry and strong grained sugars, and as white as possible. It is also important to get large boxes, on account of the tares in Russia.

To provide funds for this cargo, I shall send you a letter of credit on London for £6,000 sterling, which sum you are of opinion will be sufficient for the purposes of loading the vessel. If unexpectedly you are unable to procure a full cargo of white

sugars within the lay days stipulated in the charter party, you may ship, to fill her up, 300 boxes of good, dry, strong grained, yellow sugars, to be landed at Copenhagen, the bills of lading to be filled accordingly. This is the commencement of a correspondence which will continue, trust, a long while, and lead to mutual confidence and profit. If the market at St. Jago should be as favorable as we anticipate, please to advise me immediately on your arrival, as it is my intention in that case to send another vessel to your house.

When the cargo is shipped on board the Lydia, please to ship me some 20 boxes of sugar out of the parcel she has been loaded with, and your draft on me shall meet due honor.

Wishing you a pleasant passage, I am, dear sir, yours, respectfully and truly,
R. C. HOOPER."

On the 15th March the Lydia sailed, and by her Mr. Hooper forwarded a letter of credit for £7,000 sterling, on Messrs. Morrison, Cryder, & Co., Bankers in London, stating in his letter,

"It was Mr. Gibson's opinion, that £6,000 would be ample for the purpose of loading a cargo of white sugars, and you will please, therefore, to use this credit to such extent for sugars as may be necessary, and invest the balance in green coffee, suitable for the St. Petersburg market."

On the 21st of March, and again on the 8th of April, the defendants wrote to the plaintiff, that they deemed it very doubtful whether they should be likely to load the Lydia at any thing like his ideas, and that they should probably accept a freight for her.

On the 11th of April, the Lydia arrived at St. Jago. By the charter party her lay days were to commence on the 21st of April, and continue thirty days.

On the 12th of April the defendants wrote the plaintiff, that little or nothing was doing in sugars, and that they had written to Trinidad to inquire what could be done there. "In the meantime," they say, "if we can execute here at ten rials, we shall do so, as the extent of your ideas as mentioned in the conversation with the writer."

On the 25th of April, after stating that their advices from Trinidad were equally discouraging for getting sugars at fair prices, they say, "under these circumstances, taken in connexion with what you say under date of March 3d, &c.; we cannot believe that your interest would be studied, were we to load the Lydia at over nine reals, although your conversation with Mr. Gibson authorizes us so to do."

The Lydia was not loaded for the plaintiff, but was let to freight to one Sanchez, and sailed from St. Jago for Trinidad on the 2d of May, and sixteen days afterwards the defendants wrote the plaintiff as follows:

"In conformity to our last advices, we have let Don Victoriano Sanchez have the Lydia, at the same charter you were to pay, to load here and at Trinidad a cargo of coffee and some sugar for Europe. Her wooden and foul bottom were serious objections, and we were very glad to get her off our hands as well as we have done, although we did our best to obtain for you something more. Your letter of credit for £7,000, you will of course consider null and void."

Evidence was given that Don Victoriano Sanchez was the clerk of the defendants, that his assumed ownership was fictitious, and that the cargo shipped was the property of the defendants, who were, at the time, largely indebted to Messrs. Morrison, Cryder, & Co., and that the cargo was intended for them; that on the 22d April they wrote to Morrison, Cryder, & Co., that in consequence of the great scarcity of vessels, they were prepared to see unusually low prices for the remaining two thirds of an abundant crop; that they could find no bills to remit, and they were therefore compelled to

send sugars instead of bills, while they had the letter of credit, of the plaintiff, on Morrison, Cryder, & Co., for £7,000 sterling, bills against which would have been every way satisfactory and unexceptionable.

On the 21st of April, the day the Lydia's lay days commenced at St. Jago, they wrote to Booring & Overbeck, at Trinidad, that in all probability the Lydia would go there, and take the sugars B. & O. held for the defendants; that their agents had purchased 500 boxes good sugars at 7 and 9 realsthat they had reason to believe that sugars would decline; and yet, before the first lay day commenced, they had determined to load the Lydia for their own account, and actually sent her away before the lay days had half expired; that she was never offered to freight, except to one person, of whom they asked £5 10s., while she was nominally let to Sanchez, but in reality appropriated to themselves, at £3 9s. per ton; that instead of a cargo of coffee and some sugars, the Lydia was loaded with a cargo of sugars and some coffee, precisely the cargo ordered by the plaintiff, for the St. Petersburg market; that Sanchez wrote to Booring & Overbeck, that he was the owner of the sugars they held, having purchased them from Messrs. Casamajor, Nuiry, & Co., and ordered them to ship them by the Lydia, which he had chartered for that purpose, and that he forwarded them copies of the identical instructions sent out by Mr. Hooper, to Messrs. Casamajor, Nuiry, & Co., as to selections of sugars, &c., which he said he had received from a friend of great experience in the Russia trade.

No new charter was ever made to Sanchez, and the captain of the Lydia learned for the first time, in St. Petersburg, that Mr. Hooper had no interest in the cargo. The plaintiff contending that the whole transaction on the part of the defendants was fraudulent - their advices of the prices of sugars deceptive that they had intentionally abused his confidence, and appropriated to their own advantage, an adventure which he had planned with much care, and from which he expected large returns.

The defendants insisted, and offered evidence to prove, that the whole transaction was perfectly fair and honorable, and their conduct throughout was intended to be that of faithful agents, acting for the best interest of their employer, and in supposed accordance with his wishes; that the letter of 3d March limited the sugars to nine reals, and that if they had purchased above, they would have transcended their authority, and rendered themselves responsible to the plaintiff, who might have thrown the whole loss on them, if loss had accrued, and that it was impossible for them to have purchased the sugars at the prices named by the plaintiff, and being unable to do so, they did the best they could to save the plaintiff harmless on his charter party. That it was true that Sanchez was their clerk, and the cargo shipped on board the Lydia was their own; it had, however, no connexion with Mr. Hooper, and was simply a precaution on their part, of shipping. in the name of another, because of the great excitement in the commercial world, and to protect themselves from loss, by failing in London; and as it had no bearing on Mr. Hooper's interest, it was a precaution they had a right to use, and of which he had no right to complain. That there was great difficulty in foreign bills at the time, and that they were unable to dispose of the plaintiff's funds satisfactorily.

On the question of damages, there was some diversity of opinion; Mr. S. T. Williams estimated the sum actually made by the defendants, at about $6.000, and that if the sugars had been purchased at nine reals, and sold as directed by the plaintiff, at St. Petersburg, the profit would have been about

$18,000. Gen. Tyler estimated the profit at about $9,000, supposing the cargo to have been laid in at 9 reals.

The cause was tried at great length, commencing on Wednesday, and terminating on Saturday. On Monday morning, Judge Dewey charged the Jury, the counsel on both sides submitting the construction to be put on the letter of the 3rd of March to the direction of the Judge.

He instructed the Jury, that all agreements and conversations prior to the 3rd March, were to be disregarded, as a contract in writing could not be affected by what had previously taken place, it was conclusive on the parties; any conversation or agreement afterwards, which went to vary or control the letter, was proper matter for the Jury. They had to take into consideration Firstly, the legal effect of the plaintiff's letter of 3rd March, whether it contained a restriction on the defendants not to purchase at a higher rate than therein mentioned; and, secondly, whether that letter had been varied or controlled by subsequent acts or conversations, and in what respect.

If, on reflection, the Jury were satisfied that the defendants were limited to nine reals, then it was incumbent on the plaintiff to show that the sugars could have been obtained at his limit; or, secondly, that subsequent arrangements had enlarged the contract of 3d March, or the plaintiff could not recover, whatever the motives of the defendants might have been in applying the vessel to their own purposes.

If, on the other hand, the Jury were satisfied that by the intention of the parties a discretionary power was vested in the defendants to purchase or not, they could then consider whether they had acted fairly and faithfully, or had intentionally appropriated the ship to their own purposes, and violated their faith towards the plaintiff.

The Jury, after an absence of an hour and a half, returned with a verdict for the plaintiff, for $12,000: Choate & Russell for the plaintiff; C. G. Loring for the defendant.

MISREPRESENTATION OF TONNAGE.

- Louis

In the Circuit Court of New York, before Judge Edwards. De Valier and Edward Lamont vs. John B. Woodgate. This was an action on a charter party entered into by the parties in July, 1836, by which the defendant chartered of the plaintiffs a schooner called the Margaret, to proceed from Nassau, N. P., to the island of Mayagua, there to take the cargo from the wreck of the stranded brig Victor, deliver it at Jamaica, take in a cargo at that island, and return to this port. She was guaranteed to be 600 barrels tonnage, and the consideration of the charter party was $700.

The Margaret proceeded on her voyage, the defendant accompanying her, took a quantity of staves from the wreck of the Victor, delivered them at Jamaica, took in a cargo of pimento, and returned to this city; and this action was brought for the recovery of the $700 which the defendant agreed to pay for such service.

Payment was contested on the ground that the Margaret did not take on board as much from the wreck of the Victor as she should have taken if her tonnage was equal to what it was guaranteed to be in the charter party; and, if her tonnage did not equal that guaranty, and the plaintiffs had deceived the defendant as to her tonnage, they were not entitled to payment at all.

Judge Edwards charged the Jury, that it was not pretended by the defendant that the Margaret did not perform her voyage, and complete it, pursuant to the terms of the charter, and that the plaintiffs were consequently entitled to recover the sum stipulated in that instrument. Whether she had or had not taken from the wreck of the Victor as much cargo as she should have taken, has no bearing upon the merits of this suit. If the defendant has been aggrieved by any such neglect, or was imposed upon in relation to the tonnage of the plaintiffs' vessel, he cannot use such neglect or imposition. as a set-off to the claim under the charter party, but must bring his separate action for damages. Verdict for the plaintiffs, for the whole amount claimed, with interest and costs.

With all due submission to the learned judge, we dissent from his interpretation of the law. According to the French ordinance, the master who uses deception in representing the burthen of his vessel, provided it exceed the fortieth part, shall answer the merchant in damages; but the better understood and more equitable decision of the English law is, if a ship be freighted by the ton, and found of less burthen than expressed, the payment shall be only for the real burthen; thus, if a ship be freighted for 200 tons or thereabouts, it is commonly reduced to five tons more or less. Now this vessel was guaranteed to carry 600 barrels, and deduction ought to have been made for her deficient burthen, unless it was so trifling as to be unimportant; but to drive the merchant to a suit for damages against the master, is not simplifying or administering justice, but rendering the process tedious and oftentimes unattainaThe objection of the charterer that her tonnage being unequal, they were not entitled to any payment at all, was, to say the least of it, extremely frivolous.

ART. X.-POPULAR SUGGESTIONS OF THE PRINCIPLES OF COPARTNERSHIP.

[The following is the first of a series of Lectures on Commercial Law, delivered before the "Mercantile Library Association," by our fellow citizen, DANIEL LORD, Jr., Esq., so well known and so highly esteemed as a Commercial Lawyer. These Lectures are original in our work, having never before been published. The first illustrates the "condition of copartners towards the public," with the method, fidelity, and minuteness, for which Mr. Lord is so remarkable. To our commercial readers they must prove highly acceptable; and to those about entering into copartnership, many of the suggestions will be eminently useful. That portion of the Lecture, which will enrich our succeeding number, is on the "position of copartners to each other," and when we shall have placed the whole before our readers, we are satisfied that we shall present a mass of information new to many and useful to all; for it is a point which must be conceded, that while most of our merchants are well informed on matters connected with their immediate pursuits, they are in many instances ignorant of the first principles of law as applicable to themselves.]

UNION constitutes strength. Man singly, although endowed with reason, and thus made lord of the creation, is nevertheless weak, and incapable of effecting great results: it is by his propensity to associate, to unite with others, to multiply his individual powers by judicious combinations, that all his great works are accomplished.

This principle, so essential to the great results in the history of man, exerts its influence also in the smallest and most elementary combinations of human effort and in the advancement of private wealth, the union of indi